What Happens in a Lame-Duck Congress, and Why the 20th Amendment Shortened It

Imagine losing your job and being told you may keep making the company's biggest decisions for another two months, with the keys, the checkbook and the parking space. That is not a joke about a corporation. It is a description of American government in the weeks after a November election, when members who were voted out, or who chose to leave, still hold their seats and their votes.

The name for this is the lame-duck session, and it has been a feature of American politics for as long as we have had elections. The Twentieth Amendment, ratified in 1933, shrank it. It did not abolish it. Here are the questions people actually ask, answered from the text and the record.

The basics

What is a lame duck?

A lame duck is an officeholder whose term is running out, whether because he or she lost an election, chose not to run or is barred by a term limit. In Congress the phrase usually refers to the period between a November election and the day the new Congress begins, during which the old Congress, with its old members, can still meet and pass laws. The metaphor is of a bird that cannot keep up with the flock. The fact beneath it is that the members are still fully empowered, and their accountability to the voters has partly lapsed.

The old calendar

What was the old March 4 calendar?

The first Congress under the Constitution was set by a resolution of the old Confederation Congress to begin on the first Wednesday in March of 1789, which fell on March 4. That date stuck. Under the original Constitution, a new Congress's term started on March 4 of the year after the election, and the president was inaugurated on the same date.

The Constitution itself, in Article I, Section 4, said that Congress "shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day." So think about the calendar. An election in November of an even-numbered year chose a new Congress. That new Congress did not take office until the following March 4, some four months later. Meanwhile, the old Congress, including the members who had just been defeated, met in December and sat until March 4. In effect, a Congress that had been rejected by the voters held a full session, which is the political equivalent of a restaurant that has just flunked its health inspection staying open through the holidays.

There was a second wrinkle. Because the new Congress did not begin until March 4, and its regular first meeting under the Constitution was the first Monday of the following December, a newly elected Congress might not meet in a regular session until thirteen months after it had been chosen, unless the president called a special session. Under the old system, the voters' choice took a long time to arrive.

Why did the 1932-1933 interregnum matter?

Franklin Roosevelt was elected in November 1932, and Herbert Hoover remained president until March 4, 1933. Those four months came in the depths of the Depression, with bank failures spreading and a country waiting for a new administration. The outgoing president and the incoming one disagreed on policy, and neither could act with full authority: Hoover had been repudiated, Roosevelt had no power yet.

That winter became the political argument for ending the long gap. The Twentieth Amendment, proposed in 1932 and sponsored by Senator George Norris of Nebraska, was ratified on January 23, 1933, which was before Roosevelt's first inauguration. Roosevelt's own first inauguration still fell on March 4, 1933, the last one held on that date. Section 1 moved the start of future presidential and vice-presidential terms to noon on January 20, and the start of senators' and representatives' terms to noon on January 3. Franklin Roosevelt's second inauguration, in 1937, was the first held on January 20.

What exactly does the Twentieth Amendment say?

Section 1 provides 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 3rd day of January, of the years in which such terms would have ended if the amendment had not been ratified, and the terms of their successors shall then begin. Section 2 provides that Congress shall assemble at least once in every year, and that the meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day.

Sections 3 and 4 deal with a president-elect who dies or fails to qualify, and with contingencies in the choice of president by the House or vice president by the Senate. They are rarely discussed and carefully drafted.

The effect is to shrink the lame-duck window from about four months to about two. Two months is still a long time to keep a rejected house in session, but it is better than four, and nobody ever wrote a letter to a member of Congress asking for more weeks of the old crowd. After a November election, the old Congress can still sit until January 3, and the president still serves until January 20.

What a lame-duck Congress does

What have lame-duck sessions actually passed?

The record is mixed and it is worth being precise, because the lame-duck session is neither a conspiracy nor a nonentity. A few well-known examples from the modern era:

• 1998. After the November elections, the House of Representatives voted on December 19 to impeach President Clinton. The vote came from the House that had been elected two years earlier, in a lame-duck session.
• 2010. In December, the Senate ratified the New START treaty with Russia on December 22, Congress passed legislation repealing the military's "Don't Ask, Don't Tell" policy, and Congress enacted a tax measure that extended the existing income tax rates for two years. These were passed by a Congress that had just lost its majority in the House.
• 2018. In December, Congress passed and the president signed the First Step Act, a criminal justice measure, after the November elections.

Those three examples are not a pattern, and I will not pretend they are. They show only that major things can happen in the weeks after an election. Whether you think each was good or bad depends on your view of the policy. What they share is that they were enacted by a Congress that the voters had, in some cases, just changed.

Do departing members vote differently?

I will answer this one with care, because it is easy to say something confident and false.

The structural argument is clear. A member who will not face the voters again has less to fear from them. If the member has lost, the usual threat of a primary or a general election is gone. If the member is retiring, same. That is the premise of the lame-duck critique: that the incentive to follow constituents' wishes weakens.

Whether it changes votes in practice is a matter for political scientists, and I would not claim a firm number. A member may vote the same way as always, out of conviction, habit or loyalty to the party. A member may feel freed to vote the conscience. A member with a post-Congress career may follow incentives other than the voters'. The honest answer is that the mechanism exists and its strength varies by member and by issue.

What can be said without hedging is that the voters' verdict has been delivered, and the lame-duck session gives the defeated side two months in which the verdict has not yet taken effect. A citizen is entitled to find that awkward.

Nominations and the handoff

How do pending nominations expire?

Under the Constitution's Appointments Clause, in Article II, Section 2, the president nominates, and by and with the advice and consent of the Senate appoints, ambassadors, judges of the Supreme Court and other officers of the United States. A nomination is not a confirmation. It must be considered and approved by the Senate.

The Senate's own rules provide that nominations still pending when the Senate adjourns sine die, ending the session, or recesses for more than thirty days, are returned to the president, unless the Senate agrees by unanimous consent to keep them. At the end of a Congress, therefore, unconfirmed nominations lapse. The president can resubmit them to the new Senate, and the process starts again.

That fact turns the lame-duck period into a deadline. A majority that expects to lose control of the Senate has until January 3 to confirm what it can. The majority that is arriving has the opposite incentive: to wait. If you have wondered why judicial confirmations accelerate in December of certain years, that is why. The related mechanism of the Senate hold is explained in The Senate Hold Explained, How One Senator Can Slow a Nominee for Months, and the question of vacancies in an election year is taken up in Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means.

When do new members take office?

At noon on January 3, under the Twentieth Amendment, unless the Congress by law appoints a different day. On that day the new members take the oath, the House elects a Speaker, and the chamber adopts its rules. The Senate swears in its new members, a third of the chamber, and the presiding officer administers the oath.

It is the clean handoff the amendment was written to guarantee. The new Congress is the one the voters elected, not the one they rejected, and it is in place before the president's inauguration on January 20.

When does the vote on the president happen?

The Electoral College electors meet in their states in December, and the Congress counts the electoral votes in a joint session on January 6 under federal law, as amended by the Electoral Count Reform Act of 2022. The joint session is presided over by the vice president, who serves as president of the Senate. Note that the Congress counting the votes is the new Congress, which took office on January 3. That is another consequence of the Twentieth Amendment: the body that opens the electoral certificates is the one just elected, and not the one that had been repudiated or replaced. See Federalist 68 Read Closely, Hamilton's Defense of How America Picks a President for how the Founders designed the process.

Can a lame-duck Congress do anything it wants?

Within the Constitution, yes. A Congress is a Congress until noon on January 3, with all its powers. There is no legal limit on what the old Congress can pass. It cannot bind its successor, because the next Congress can repeal or amend any statute by the ordinary process, but it can enact laws that the president signs and that take effect.

The real limits are political and practical. A member who wishes to remain in public life has to answer for what he or she votes in December. A leader who wants to pass something major knows that the clock is short, that unanimous consent will be hard to obtain and that the incoming majority will have its own views. Time is the main constraint. A lame-duck session of five or six weeks, much of it spent on the annual spending bills that have not been finished, has room for only a few big things.

Was it a design flaw?

Why did the framers not worry about this?

They did not foresee it. In 1788 an election was a slow thing, with ballots counted by hand and results carried by horse. It took weeks to learn who had won, and the gap between election and seating was in part a practical necessity. By the 1920s that necessity was gone. Telegraphs, telephones and railroads had made the result known in a day and members could travel in a few. The old calendar was an artifact of a slower country.

The Twentieth Amendment is a good illustration of something conservatives sometimes forget to say. The Constitution can be amended, and when it is, it should be done the way Article V provides, by two-thirds of Congress and three-fourths of the states, not by a court's creative reading. The amendment took the Constitution's text, found a defect that experience had exposed, and fixed it in the proper way.

Is a lame-duck session good or bad?

I'll tell you what I think, and you can disagree. I think the lame-duck session is a mild defect that the Twentieth Amendment made smaller, and that the right response is to watch it, not to abolish it.

Here is the argument, in three parts.

1. Accountability matters. The voters should get what they voted for, soon. A two-month gap is a long time but a defensible one. A four-month gap was too long.
2. Some business has to be finished. The government must be funded. A session in which a Congress finishes the appropriations it began is an ordinary session, not a scandal.
3. Major policy changes passed after an election deserve extra scrutiny. A citizen who sees a big bill moving in December has a right to ask why it could not wait for the Congress the voters just chose. That is a fair question, and a representative who cannot answer it should be asked again.

A member who has been rejected by the voters and then votes for a major new program has done something legal. Whether it is wise is another matter. The remedy is not a constitutional change; it is attention.

Following along

How can citizens follow the session?

You do not need a press pass. A few free tools do the job.

• Congress.gov shows every bill, its sponsors, its text and its status, and it records every roll-call vote.
• The House Clerk and the Senate's own sites post the daily schedules and recorded votes.
• Your member's office can tell you how he or she plans to vote, and in a lame-duck session you are entitled to ask.
• The scorecard and representatives pages on this site let you look up your members and read their record: the representatives finder and the scorecard.
• The calendar. Note that the session ends on January 3, and that nominations and bills still pending lapse. A bill that does not pass by then must be reintroduced in the new Congress.

For a view of what Congress's fixed numbers do to a majority and a minority, see The Numbers That Run Congress, From 218 to 60 to 290 to 38 and Back.

The case in brief

1. The old calendar put the start of a new Congress on March 4, four months after the election, so a defeated Congress could sit for a full session.
2. The 1932-1933 interregnum, in the depth of the Depression, was the argument that finished the old arrangement, and the Twentieth Amendment was ratified on January 23, 1933.
3. Since then new members take office at noon on January 3 and the president on January 20, which shrinks the lame-duck window to about two months.
4. Lame-duck sessions have done real business, such as the 1998 impeachment vote and the December 2010 treaty, repeal and tax laws, and pending nominations lapse when the Congress ends.
5. The remedy for lame-duck excess is the oldest one in a republic: watch, ask and vote.

What you can do: look up your representative's votes on Congress.gov, pick one bill still pending after an election, and send a short note asking why it could not wait for the new Congress.