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Abolish the lame-duck period

America’s long lame-duck period gave Trump supporters months to plan a violent uprising. It needs to end.

President Donald Trump waves as he boards Air Force One on January 4.
Mandel Ngan/AFP via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

On October 19, 2015, Canadians voted to end nearly a decade of Conservative Party government and elect a new government led by Liberal Party leader Justin Trudeau. Just over two weeks later, on November 4, Trudeau was sworn in as prime minister.

Five years earlier, a very similar series of events played out in Great Britain. On May 6, 2010, Britain held its most recent election where control of its government changed partisan hands — voters tossed out the incumbent Labour Party government and replaced it with a coalition led by the Conservative Party’s David Cameron. Just five days after the election, Cameron became prime minister.

Modern democracies, in other words, can and do transfer power very rapidly — and much faster than the two and a half months that separate President-elect Joe Biden’s election on November 3, 2020, and his inauguration on January 20, 2021, the official transition date established by the 20th Amendment. French President Emmanuel Macron won election on May 7, 2017, and was sworn in just one week later. Indian Prime Minister Narendra Modi’s Bharatiya Janata Party won his election on May 16, 2014. He became prime minister just 10 days later. Japan’s Abe Shinzo, the last Japanese politician to preside over a transition of partisan rule, also took office 10 days after his party won an election.

The dangers of a long lame-duck period have come into stark relief in the wake of last week’s storming of the US Capitol. America’s lame-duck period gave insurrectionists loyal to President Donald Trump two full months to plan the putsch that briefly occupied the Capitol and forced lawmakers to flee in terror — and they were egged on this entire time by a president who encouraged them to stage a “wild” protest while lawmakers formally certified Biden’s victory on January 6.

Meanwhile, as the sitting president, Trump retained command and control over both federal law enforcement and US military forces that eventually helped secure the Capitol. For unclear reasons, the Pentagon was reportedly slow to approve emergency requests to send troops to regain control of the building. And, for as long as Trump is president, the nation’s capital will need to rely on the Trump administration to protect against future violence.

Even before Trump seemed to cheer on a violent attempt to overthrow Biden’s incoming government, the lame-duck president spent the post-election period doling out pardons to his cronies and handing out medals to his most sycophantic loyalists in Congress. While Trump’s abuse of the pardon power has been particularly egregious, it’s hardly unprecedented. President George H.W. Bush pardoned several former officials involved in the Iran-Contra scandal more than a month after he lost his bid for reelection. President Bill Clinton pardoned his half-brother, as well as wealthy fugitive Marc Rich, during his final days in office.

American history is replete with examples of outgoing presidents who actively sabotaged their successor during the lame-duck period — sometimes in the middle of a historic crisis.

The United States, in other words, pays an enormous price for its long lame-duck period. There’s no good reason the US cannot join Canada, Britain, France, India, Japan, and other nations in transitioning swiftly to a new administration after a presidential election.

Why we have a lame-duck period

In 1984, Sens. Claiborne Pell (D-RI) and CharlesMac” Mathias (R-MD) proposed a constitutional amendment that would have moved Inauguration Day from January 20 to November 20 — around two weeks after the presidential election. A long lame-duck period, Mathias said at the time, “made sense during the horse-and-buggy days of our republic,” but it no longer did in an age when newly elected officials can travel quickly from their home states to Washington, DC.

Among other reasons for such an amendment, Pell noted that the long interregnum between presidents can harm US foreign policy because neither the outgoing nor the incoming president can effectively negotiate with international leaders during this period. As Pell wrote in a 1982 op-ed, while the memory of the Iran hostage crisis was still fresh, “neither President Carter nor President-elect Ronald Reagan possessed the real authority required to deal with the situation” during Carter’s lame-duck period. Reagan did not yet have any formal power to speak for the United States, and Iranian leaders knew that Carter was on the way out.

The idea that there should be a long waiting period between an election and the day when newly elected officials take office, Princeton politics professor Keith Whittington explained in 2018, stems from an era when “citizen-legislators were often farmers as well as politicians, and the legislative calendar needed to be organized in a way that did not interfere with the necessities of planting and harvesting.”

In a largely agrarian society, winter was an ideal time for farmers to conduct business and prepare for the growing season. So the government’s calendar accommodated this reality. While Congress determined that federal elections should take place on the first Tuesday after the first Monday in November back in 1845, prior to the ratification of the 20th Amendment, newly elected members of Congress and presidents would take office the following March 4 — thus giving them the entire winter to get their affairs in order before traveling to the capital.

In a nation without railroads, airplanes, telephones, or the internet, moreover, considerable time was needed to complete the formal process of choosing a president. After voters cast their ballots, word of how many votes were counted for each candidate often had to be brought to a central location by horse and buggy. And once all the ballots were tallied, members of the Electoral College needed to be informed of their appointment. And those members had to gather within their respective states — again, frequently traveling by horse and buggy — to get to this meeting.

After the electors cast their ballots, records of their votes had to travel to Washington, and members of Congress had to also travel back to Washington to formally certify the results — or to choose a president from among the top candidates if none of those candidates received a majority of the electoral votes.

And looming over all of this was the fact that the new president needed to form a government, often corresponding with potential Cabinet secretaries via letters that took days or weeks to arrive.

As the country developed new methods of travel and communication, the law evolved with it, but only to a limited degree. In 1933, the 20th Amendment became part of the Constitution. That amendment changed the date when new members of Congress would be sworn in from March 4 to January 3, and it moved the date for presidential inaugurations to January 20.

While the 20th Amendment explicitly provides for a period of about two months when deposed lawmakers will remain members of Congress, it was in its time celebrated as an end to lame-duck lawmaking. A New York Times article announcing the ratification of this amendment proclaimed that “39 States Ratify Amendment Ending ‘Lame Duck’ Terms.” That same article predicted that the likelihood that Congress would continue to do work in the period immediately after an election, at least barring an emergency that forced the president to convene a special session of Congress, was “one chance in a thousand.”

As legal scholar John Copeland Nagle wrote in a 2012 article criticizing lame-duck lawmaking, “the universal understanding of those involved with the Amendment could not imagine that Congress would meet after Election Day and before January 3, citing the difficulties of winter travel and the distractions of the holidays.”

As recently as the 1930s, in other words, the United States remained disconnected enough that the prospect of lawmakers traveling to Washington in the post-election period was unimaginable even to some of the most sophisticated political observers in the country.

But we no longer live in such a world. Lame-duck congressional sessions are now a regular feature of the post-election period. Presidents can travel across the country in mere hours, and communicate with potential appointees whenever they want.

There’s also one other way that the United States in 2021 does not resemble the United States in the 1930s. An array of federal laws now allows major party presidential candidates to create a formal transition team prior to the election. Such a law could be expanded to ensure that potential Cabinet secretaries and other close aides to a presidential candidate are fully briefed and prepared to assume their new role the minute an election is held.

America’s long lame-duck period, in other words, is a relic of an era when the nation needed a considerable amount of time simply to choose a president — much less to allow that president to take office with a full array of lieutenants and advisers ready to go.

As we learned during the long week while ballots were still being counted in the 2020 election, the country would probably still need a few days or even a couple of weeks to finalize the election and to swear in the new president. New members of Congress, similarly, might require a little bit of time to hire staff and prepare to do their jobs.

As Whittington writes, “if the new legislature were to be called into session immediately after Election Day, it would find itself disorganized and understaffed and effectively unable to conduct public business for weeks.”

But there’s simply no reason this process should take two months.

Three disastrous presidential transitions before Trump

The biggest danger from a substantial lame-duck period is that an outgoing president will use their final months in office to sabotage their successor — something that’s happened several times even before Trump’s disastrous transition to the Biden administration.

1) James Buchanan to Abraham Lincoln

Easily the most tumultuous presidential transition in American history was the pre-Civil War transition from President James Buchanan to President Abraham Lincoln. Seven slave states seceded from the Union while Buchanan was a lame duck. And, while Buchanan purported to be a unionist who opposed secession, he refused to do much of anything to preserve the Union.

“How easy would it be for the American people to settle the slavery question forever and to restore peace and harmony to this distracted country,” Buchanan claimed in a lame-duck address to Congress. “All that is necessary,” according to the outgoing president, was for the slave states “to be let alone and permitted to manage their domestic institutions in their own way.”

Among other things, Buchanan denied that he had the power to use force to protect federal forts and garrisons in the traitorous states, so he allowed Southern militias to seize control of many such forts — and of the armaments therein. His hands-off approach gave the Confederacy months to form a government and to begin to organize a military.

A civil war was probably inevitable once Southern states began seceding. But those states were better organized and far better prepared to wage a war of treason in defense of slavery due to Buchanan’s ineptitude.

2) Benjamin Harrison to Grover Cleveland

The transition from President Benjamin Harrison to President Grover Cleveland in 1888-89 wasn’t as calamitous as the transition from Buchanan to Lincoln — how could it be? But Harrison and many of his fellow Republicans spent much of the lame-duck president’s final days in office sabotaging the economy and actively discouraging investment in the United States.

As Boston College historian Heather Cox Richardson recounts in To Make Men Free: A History of the Republican Party, after Harrison’s loss to Cleveland, Republican-aligned newspapers featured apocalyptic warnings about how Democratic proposals such as a lower tariff and an easier monetary policy would bring about economic ruin. “It remains for the wise man to endeavor so to arrange his personal affairs that he will suffer least from the threatened affliction,” warned the Chicago Tribune.

Numerous investors, foreign and domestic, believed these newspapers and started pulling their money out of the market.

Harrison, meanwhile, ignored pleas from banking titan J.P. Morgan and others to reassure these investors. By mid- to late February, the stock markets were in free fall. And yet Treasury Secretary Charles Foster commented publicly that the administration’s only job was to “avert a catastrophe” until Cleveland took over on March 4. As the markets collapsed, Foster spent his last several days in office sitting for his official portrait.

By the time Cleveland finally took office, the financial sector was in a full-scale panic, and the economy slipped into an economic depression. Then, having worked to sabotage the economy, Republicans ran in the 1894 midterms on the message that Cleveland’s Democrats had tanked the economy. And it worked! Democrats lost more than 100 House seats in the worst midterm defeat in American history.

3) Herbert Hoover to Franklin D. Roosevelt

President Franklin Delano Roosevelt’s New Deal represented a sea change in American governance. Before the New Deal, the kind of activist government favored by Roosevelt was widely viewed by American elites as not just unwise but illegitimate and unconstitutional.

One person who shared this disdain for Roosevelt’s plans was his predecessor, President Herbert Hoover. Hoover lost the 1932 election in a landslide, largely due to his listless response to the Great Depression, but he spent his lame-duck period pressuring Roosevelt to abandon the New Deal policies that the incoming president promised to enact if elected.

In a letter delivered to Roosevelt during the final weeks of Hoover’s presidency, for example, Hoover warned that bank failures could result unless Roosevelt publicly abandoned his plans and pushed for austerity.

Roosevelt was unmoved by these pleas, but it is likely that the testy transition from Hoover to Roosevelt played a significant role in the states’ decision to ratify the 20th Amendment and reduce the length of the lame-duck period for all future presidents. As Yale law professor Akhil Amar writes in America’s Constitution: A Biography, when Congress proposed this amendment,

Everyone knew that President Herbert Hoover was unlikely to be reelected in November. Yet everyone also understood that the soon-to-be-lame-duck president would remain in power for four months after being repudiated, with no mandate (and perhaps little inclination) to do anything, despite the widespread view that immediate action was needed to pull the country out of its Depression.

Twenty-eight states voted to ratify the amendment in January 1933 alone, as the lame-duck president hatched failed schemes to get Roosevelt to abandon his campaign promises.

It may be possible to form a consensus around a swift presidential transition in 2021

The Constitution is nearly impossible to amend — amendments require three-quarters of the states to agree, which means that any amendment that is opposed by a meaningful political faction within the United States is all but certain to fail.

Yet it might be possible to build the overwhelming consensus necessary to amend the Constitution and eliminate the long lame-duck period. Democrats, having lived through a brutal transition from Trump to Biden, are likely to see the wisdom of such an amendment. Republicans, meanwhile, don’t have anything immediate to lose from a shorter lame-duck period, because such an amendment couldn’t possibly be ratified fast enough to shorten Trump’s term. Republicans even might have something to gain if the amendment took effect during a Democratic administration because it would cut the length of that administration.

If something like the Pell-Mathias amendment, which would have moved Inauguration Day to November 20, were to become law in 2021, the most immediate loser could be Joe Biden. Such an amendment would cut two months off his term and could potentially allow a Republican to take office two months early if a GOP presidential candidate prevails in 2024. Alternatively, the amendment could be written to take effect after the 2028 or 2032 election, so that lawmakers asked to ratify the amendment would have no way of knowing which party would benefit when it took effect.

Realistically, Congress would probably need to spend some time consulting with state election officials and other experts, regarding just how fast the states could certify congressional and presidential elections, before it decided just how much to cut the lame-duck period. But it should go without saying that a losing president should not be allowed to spend months plotting to undermine their successor.

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