Beware the lame duck
That's why, as I suggested last week, nothing of major legislative consequence is likely to occur for the next two and a half years. Except, as columnist Irwin Stelzer points out, for one constitutional loophole: a lame-duck Congress called back into session between the elections this November and the swearing-in of the 112th Congress next January.
Leading Democrats are already considering this as a way to achieve even more liberal measures that many of their members dare not even talk about, let alone enact, on the eve of an election in which they face a widespread popular backlash to the already enacted elements of the Obama-Pelosi-Reid agenda.
That backlash will express itself on Election Day and result, as most Democrats and Republicans currently expect, in major Democratic losses. It is still possible for the gaffe-happy Republicans to blow it. When the ranking member of the House Energy and Commerce Committee publicly apologizes to the corporation that unleashed the worst oil spill in American history, you know the Republicans are capable of just about anything.
But assuming the elections go as currently projected, Obama's follow-on reforms are dead. Except for the fact that a lame-duck session, freezing in place the lopsided Democratic majorities of November 2008, would be populated by dozens of Democratic members who had lost re-election (in addition to those retiring). They could then vote for anything -- including measures they today shun as the midterms approach and their seats are threatened -- because they would have nothing to lose. They would be unemployed. And playing along with Obama might even brighten the prospects for, say, an ambassadorship to a sunny Caribbean isle.
As John Fund reports in The Wall Street Journal, Sens. Jay Rockefeller, Kent Conrad and Tom Harkin are already looking forward to what they might get passed in a lame-duck session. Among the major items being considered are card check, budget-balancing through major tax hikes, and climate-change legislation involving heavy carbon taxes and regulation.
Card check, which effectively abolishes the secret ballot in the workplace, is the fondest wish of a union movement to which Obama is highly beholden. Major tax hikes, possibly including a value-added tax, will undoubtedly be included in the recommendations of the president's debt commission, which conveniently reports by Dec. 1. And carbon taxes would be the newest version of the cap-and-trade legislation that has repeatedly failed to pass the current Congress -- but enough dead men walking in a lame-duck session might switch and vote to put it over the top.
It's a target-rich environment. The only thing holding the Democrats back would be shame, a Washington commodity in chronically short supply. To pass in a lame-duck session major legislation so unpopular that Democrats had no chance of passing it in regular session -- after major Democratic losses signifying a withdrawal of the mandate implicitly granted in 2008 -- would be an egregious violation of elementary democratic norms.
Perhaps shame will constrain the Democrats. But that is not to be counted on. It didn't stop them from pushing through a health-care reform the public didn't want by means of "reconciliation" maneuvers and without a single Republican vote in either chamber -- something unprecedented in American history for a reform of such scope and magnitude.
How then to prevent a runaway lame-duck Congress? Bring the issue up now -- applying the check-and-balance of the people's will before it disappears the morning after Election Day. Every current member should be publicly asked: In the event you lose in November -- a remote and deeply deplorable eventuality, but still not inconceivable -- do you pledge to adhere to the will of the electorate and, in any lame-duck session of Congress, refuse to approve anything but the most routine legislation required to keep the government functioning?
The Democrats could, of course, make the pledge today and break it tomorrow. Call me naive, but I can't believe anyone would be that dishonorable.