The Purpose and Powers of the Senate, Part XXXVIII: Weakened Waterfowl; or, The Duck Stays in the Picture

    The 20^th Amendment, much like the 16^th, is at the same time esoteric and of tremendous practical significance. The text, for one thing, is rather on the lengthy side. Divided into six sections, it establishes both the specific timetable by which the membership of the United States Congress and the President are to assume their respective offices as well as the procedures to be followed in the event that the office of President cannot be filled in the normal manner immediately following a national election. The first section accordingly affirms that, 

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

The second section declares that, “The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January unless they shall by law appoint a different day.” Section three establishes that,

If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice President-elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The fourth section, meanwhile, asserts that,

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

The final two sections are more logistical than substantial, neither of which having much significance outside the moment of their drafting. One states that, “Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article [,]” while the other simply declares that the amendment proposal as a whole would expire in seven years if not ratified in the meantime.

    As aforementioned, this would seem to amount to little more than a quantity of bureaucratic minutiae. What does it matter, after all, when Congress meets after an election or when the president’s term of office specifically expires? So long as the events which need to take place do take place within a fairly reasonable timeframe, why should the Constitution need to regulate them as precisely as all that? The answer, it should come as no surprise, is that the alternative to such strict regulation proved itself in the past to be a source of conflict and consternation. Not so much conflict as to become the source of a national emergency, of course. The 20^th Amendment wasn’t ratified until 1933, almost one hundred and fifty years after the procedures which it sought to modify were originally adopted. But in that century and a half period, at infrequent but persistent intervals, situations arose which made it clearer and clearer to the American people that certain aspects of the administrative framework described by the text of the Constitution were frustratingly – perhaps even dangerously – flawed. 1933 was not witness to any especially distressing incident. The amendment was not ratified at that moment for any reason in particular, that is. The 20^th Amendment might therefore reasonably be thought of as a kind of administrative modification. It was not a particularly urgent thing – inasmuch as no one was likely to ride into office by campaigning on its passage – but it was very much a necessary thing, and one which has since ensured greater consistency and transparency on the part of the federal government and its various institutions and officers.

    What, then, was the problem that the 20^th Amendment was designed to solve? Well, first, it should be fairly evident in terms of both its structure and its content that the 20^th Amendment was intended to solve several problems at once. One was the sizeable gap that existed prior to its ratification between the date of a federal election and the swearing-in of the victorious officeholders. In accordance with the unamended text of Article I, Section 4 of the Constitution, Congress is only required to meet once in every calendar year, specifically on the first Monday in December. This same section empowers Congress to set a different date if its members are so inclined, and the President also has the power to summon a special session at their leisure, but the Constitution is otherwise silent as the specific schedule which the federal government is entitled to keep. Notably, prior to 1933, there were also no regulations within the text of the Constitution mandating when the terms of either the President or the various members of Congress were supposed to either begin or end. When the Congress of the Confederation – that is, the version of Congress that existed under the auspices of the Articles of Confederation – met in September of 1788 to certify that the requisite number of states had voted to ratify the Constitution, its members decided to set March 4^th, 1789 as the date on which the new government would first meet and begin administering the country. Three years later, in 1792, Congress also set the date for all ensuing biennial federal elections – bearing in mind that the state of contemporary transportation and communication infrastructure made greater specificity practically untenable – at some point between the beginning of November and the first Wednesday in December.

    By the turn of the 19^th century, in consequence, the basic rhythm of the federal election cycle had more or less been set. As Congress had first met on March 4^th, 1789, and as every president since Washington – whose swearing-in was delayed by the inability of Congress to muster a quorum until April – had been inaugurated on that same day of the year, March 4^th accordingly became the single date upon which all federal terms both expired and began. Federal elections, meanwhile, were held every two years between November 1^st and December 1^st-7^th. The consequences of this timetable were many, the most persistent of which were twofold. First, it meant that every two years, following the scheduled national elections, a period of four months would elapse before the newly elected officials were sworn in. The result was an especially lengthy period during which either the membership of Congress, or the incumbent President, or both might conceivably be in the position of having just been defeated at the polls while still holding the reins of power. To put it mildly, the opportunities for mischief were many and profound. And as if this wasn’t troubling enough, the second quirk of this timetable, having to do with the manner in which it interacted with the aforementioned clause of Article I, Section 4, had the potential, in many ways, to create an even stranger set of outcomes.

    Recall that, according to the cited text of the Constitution, Congress is required to meet at least once in every calendar year on the first Monday in December. If Congress chose, prior to 1933, not to alter this date and decided – for whatever reason – not to meet more often than strictly required, the result was likely to be exceptionally problematic. If federal elections must happen at some point between November 1^st and December 7^th during the scheduled years, Congress must meet on the first Monday in December of every year, and new Congresses are only sworn in on the March 4^th following an election, then the incoming class of Representatives and Senators, having been voted in by the end of the first week of December but not required to take office until the middle of the following spring, might not actually meet officially until the following winter. Congress, as aforementioned, is empowered by the Constitution to set the date of its single mandated meeting, but in practice – until relatively recently – its members chose not to do so. Rather, they simply held to the schedule set by Article I, Section 4. That is, during off years they met in a long session in December while during elections years, in the same month, they held a comparatively brief “lame-duck” session. Any newly elected class of legislators, meanwhile – though due to take office on March 4^th – would not be required to convene – and so, in most cases, simply would not convene – until the proceeding December, over a year after they were elected.

    Each of these outcomes brings with them their own set of complications. If Congress, during an election year, chose to meet only on the one occasion mandated by the text of the Constitution, the result would necessarily have been a tremendous amount of wasted time during which, for all practical purposes, the United States would be without a functioning legislature. The lame-duck session would have met in December, transacted its business – which may well have included approving legislation to which its members knew full well their successors would object – and then adjourned for the year. The members of the incoming Congress would technically have taken their seats the following March, but they would not have been required to actually begin their work until December of that same year. This would seem to amount to a full twelve months during which essentially nothing was accomplished. Worse yet for the incoming legislators, it was a full year during which whatever laws their potentially bitter and vindictive predecessors approved would be permitted to stand. If the new Congress was required to meet in March, say, on the same day that its term began, little enough time might have passed for certain undesirable initiatives to be unwound before taking effect. But one would have difficulty imagining any manner of policy or law which, a full year after its implementation, would be particularly easy to repeal or replace. And yet, for whatever reason, this is exactly the dilemma which most every incoming Congress faced before the ratification of the 20^th Amendment in 1933.

    The fact that, also during an election year, the outgoing Congress and the incumbent President were permitted to remain in office for four months before their terms expired likewise had the potential to greatly complicate the transition from one partisan administration to the next. Consider, by way of example, the final months of the presidency of the unfortunate James Buchanan (1791-1868). While, pursuant to the results of the Election of 1860, more voters signaled their support for the policies of the Republican Party and its chosen standard-bearer, Abraham Lincoln (1809-1865), than the candidate put forward and duly supported by the Southern wing of the Democratic Party, John Cabell Breckinridge (1821-1875) – to the tune of over one million votes – lame-duck president Buchanan nevertheless persisted in undermining the position of the victorious Lincoln by refusing to declare that the United States was prepared to prevent the secession of any slave state by way of military force. Lincoln and his fellow Republicans had come to the conclusion that the disintegration of the union could not be permitted relatively soon after the first several Southern states began declaring their independence in December of 1860, but because Buchanan remained in office, they were unable to act on this conviction.

    Both men were of the opinion, it bears noting, that secession was illegal. But whereas Lincoln was inclined to mobilize federal military assets in order to put a stop to such illegality, Buchanan famously declared that he believed he had no moral or legal right to do so. Secession may well have been illegal, he stated accordingly in his last address to Congress on December 10^th, 1860, but it would also have been illegal for the federal government to functionally declare war on any of the states. And in any case, it was worth remembering that the cause of the conflict itself was the, “Intemperate interference of the Northern people with the question of slavery in the Southern States [.]” Unless Congress was thus prepared to, “Repeal their unconstitutional and obnoxious enactments [...] the injured States, after having first used all peaceful and constitutional means to obtain redress, would be justified in revolutionary resistance to the Government of the Union.” Suffice it to say, these pronouncements on the part of an outgoing president did not help to alleviate the mounting crisis in the least. Not only were the various Northern states disinclined to countenance rebellion in the face of what they considered to be their perfectly reasonable opposition to the continued expansion of slavery, but the various Southern states did not take kindly to being told that their assertion of sovereignty represented an illegal act. In the ensuing months, as Buchanan continued to gesture vaguely towards peace while Lincoln and the Republicans sat powerless in the wings, the seceding Southern states were able to consolidate their position, seize federal assets, procure weapons, and make ready for war.

    A lame-duck Congress could make itself the source of just as much mischief as a lame-duck president, of course. Consider, by way of example, the implication of such a lengthy period in office following an election in the context of a deadlocked presidential ballot. According to the terms of Article II, Section 1, the absence of a majority in the Electoral College on the part of one of the presidential candidates following an election would automatically trigger a contingent vote in the House of Representatives. The members of the same would then proceed to cast their votes, “The Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.” At the present moment – that is to say, as of the middle of spring in 2022 – the Representatives who are entitled to take part in this contingent ballot are those who would have been chosen in the most recent election. Having been elected in November, they would have been sworn in already by the time it fell to them to help count the ballots of the Electoral College in early January and then participate, if necessary, in a tie-breaking election. Prior to 1933, however, it was the outgoing Congress that held this responsibility. Having been elected two years prior and with their terms set to lapse on March 4^th, these lame-duck Representatives were accordingly “on deck” to settle an Electoral College tie in the event that one emerged.

    Consider, for a moment, what this would mean in practice. Rather than allow the Representatives just chosen by the people to decide which of the presidential candidates, also just chosen by the people, should emerge victorious, the Constitution used to allow – prior to 1933 – the Representatives chosen two years prior to determine which of the selfsame nominees should take possession of the highest office in the land. If the purpose of democracy in the context of the American republic is to allow for a frequent resort to the people so that their lawmakers and their administrative officers reflect their desires and their biases as accurately as possible, this procedure would seem to be nothing short of a democratic mockery. The President, more than any other office in the whole of the federal government, is supposed to represent the American people in a very direct and immediate fashion. Not only do they possess a truly national mandate, but their election is highly contingent – if not absolutely contingent – on the direct and specific support of a majority of the American people. Allowing the House of Representatives to insert themselves into this relationship in the event of a tie in the Electoral College is a far from ideal solution to what history had since shown to be a substantially uncommon occurrence. But it is one which, if handled properly, would seem at the very least to be tolerable. The Electoral College already represents a layer of abstraction – arbitrary though it may be – between the American people and their chosen candidate for president, to the point that substituting another institution – in this case the House of Representatives – to perform essentially the same task would not seem to signify a wholesale abandonment of essential principles.

    Allowing the outgoing House to perform this essential task, by contrast, would seem to signify just such a species of perversion. Purposeless though the Electoral College might be – and indeed it is – its deficiencies are more mathematical than moral. As law and practice have made abundantly clear, delegates chosen to sit in this body are not in the least bit entitled to act contrary to the stated desires of those who elected them. What this means, in practice, is that Electors almost always vote according to the will of the people that they were chosen to represent. If they were elected as a Democrat, they cast their ballot for the Democratic candidate. And if they were elected as a Republican, they cast their ballot for the Republican candidate. It is, broadly speaking, a 1:1 relationship, and one which does reflect – if not always accurately – the will of the American people at the present moment in time. Allowing the outgoing House of Representatives to take on this same responsibility naturally dispenses with any such relationship between popular will and success in public office in favor of allowing resentment and petty animus be the order of the day.

    This is because the outgoing House of Representatives cannot ever claim to represent the American people at the present moment in time. What they represent has since ceased to exist. In two years, people have died, and moved, and come of age, and undergone any number of life-changing experiences, and the nature of each Representatives’ constituencies have accordingly been altered from what they were. Indeed, depending on the timing – in the event of a federal census and a round of redistricting – the districts they were chosen to represent might have entirely ceased to exist. What can they claim to speak for, then, these lame-duck lawmakers, other than the past? Other than a people who no longer exist? This is why House elections are held every two years, is it not? So that the House can speak for their constituents with some degree of accuracy? So that the House as a whole can accurately reflect the will of the American people as near to the present moment as possible? But of course, how often can the House really be expected to take over the task of electing a president? How likely is it, in point of fact, that the Electoral College will produce a deadlock? Is it really a problem, in short, if the Representatives of yesterday maintain the theoretical ability to choose the president of tomorrow? Well, yes, in fact, it is. History has shown us nothing less.