Last week, House Republicans took a united stand against the Democrats' plans to push through the most unpopular elements of their agenda in a lame-duck session after Election Day. Rep. Tom Price (R-Ga.) introduced a resolution barring Congress from convening between November and January, except in case of a national emergency. Every Republican save one supported the ban.
House Republicans have no power to stop a lame duck session. But thanks to the filibuster, Senate Republicans do. To have what Sen. Kent Conrad (D-N.D.) calls "one of the most significant lame-duck sessions in the history of the United States," Senate Democrats need at least one Republican vote--which means that if all GOP senators stick together, the lame duck is a dead duck.
They have done so in the past, with 41 Republicans taking a united stand on issues ranging from judicial nominees to financial reform to health care. Common sense dictates they would do the same when it comes to a lame-duck session. After all, the GOP is expected to gain seats on Election Day--so Senate Republicans would be in a much a stronger position to address any issue that would be considered in a lame-duck session when reinforcements arrive in January.
But Republican leader Mitch McConnell has been strangely silent. His whip, Sen. Jon Kyl, has suggested voting on the new START treaty in a lame-duck session. And one of McConnell's closest confidants, Sen. Judd Gregg (Lame Duck-N.H.), who is retiring, has called for the Senate to vote on the recommendations of President Obama's bipartisan deficit commission (on which he sits), whose report is due on Dec. 1 and may include both entitlement cuts and tax increases. Controversial measures like these should not be enacted with the votes of defeated or retiring politicians--especially right after an election in which Americans are expected to register a vote of "no confidence" in the current Congress.
And once a lame-duck session gets going, it won't stop there. Senior Democrats have suggested that a lame-duck session could take up everything from cap-and-trade to union card-check legislation to immigration reform. But the most likely scenario--since Congress has not yet approved any regular appropriations bills--is that a lame-duck session would be used to pass a massive, earmark-laden omnibus spending bill. And all it takes to open the floodgates is one Republican defection.
But the Democrats' lame-duck plans may be for naught--thanks to Rod Blagojevich. In the wake of the corruption scandal over the former Illinois governor's efforts to sell President Obama's Senate seat, a federal court ruled in July that Illinois must hold a special election this November. That means voters will cast ballots in two Senate races on Election Day--one for a senator to serve a new six-year term and another for a senator to serve out the final 60 days in Obama's Senate term. As Rep. Mark Kirk, the Republican candidate in both races, explains, "It's actually legal in Illinois to vote for Senate twice now."
If Kirk wins that special election, he would ask to be seated immediately--thus becoming the 42nd Republican senator. And that, Kirk told me, "is a total game-changer in the numbers of the Senate." What is his view of a lame duck? Kirk says, "The only legitimate thing for the Congress to do is to pass a short-term continuing resolution to keep the doors open--and let the voice of the American people as communicated through their new representatives and senators speak in January."
Barring an emergency, Kirk would oppose passage of any major legislation before the new Congress is seated. "There is something unseemly about defeated congressman and senators exercising any significant power," he said. Asked if he would oppose a lame-duck session even if the GOP leadership was pushing for one, Kirk said, "Yes. But I would strongly expect it would only be [Majority Leader Harry] Reid wanting to do that."
Kirk might not be the only new senator opposing a lame-duck session. In Delaware, Rep. Mike Castle is also running in a special election, which means that he could join Kirk in the Senate in November, giving the GOP a 43rd vote. Castle voted in the House last week for the Price resolution, so he is on record opposing a lame-duck session.
If moderates such as Kirk and Castle are elected, and they join conservatives in opposing a lame-duck session, it will be difficult for GOP leaders to ignore them. Kirk says, "I think that most people would let common sense prevail. If we have a change election, as I expect we are going to have, we should give legislative voice to that change." That is the message we should be hearing from the Republican leadership today.
Marc A. Thiessen is a visiting fellow at AEI.