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Every time a new party comes to power, the old party tries to ram through as much legislation as they can, between the election and the installation of the new government. The party gaining power always complains and sometimes vows to “fix” the system. But then, they take office, and they, too, try to do as much damage as they can as they leave town. The difference this time is that the gerrymandered legislatures of Michigan and Wisconsin are not just passing pet legislation, they’re messing with the separation of powers, trying to neuter the power of the incoming executive branch.

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Looking from the outside, the British Guardian calls these actions a “coup.”

Republicans are staging mini-coups across the US . . .

In a lame-duck session in the wee hours of Wednesday morning, Republican legislators in the state of Wisconsin passed a sweeping bill designed to radically check the powers of the incoming governor. The result of this 11th-hour tactic is an attack on progressive causes, the integrity of the electoral process, and democratic accountability. . .

However disgraceful, the power grab by Wisconsin’s Republican legislators is hardly idiosyncratic. Hard on the heels of Democrat Roy Cooper’s capturing the governorship of North Carolina in 2016, Republican legislators in that state voted to aggressively limit the governor’s power. Last month, Democrat Gretchen Whitmer captured the governor’s seat in Michigan, trouncing her Republican opponent by 10 percentage points. Lame-duck Republican legislators are now scheming to strip the state’s highest executive of essential powers. . .

In November, Democrats in Wisconsin won 54% of the statewide vote, and yet they captured just 36 out of 99 seats in the Wisconsin state assembly. This was thanks to the Republicans’ success in partisan gerrymandering.

Lame duck sessions are the height of anti-American action because they encourage the legislators to be irresponsible because legislators are totally unaccountable. It’s too late to vote them out, and they can’t be recalled, because a recall only applies to the current session. Any heinous action in December is untouchable when the new session begins in January.

A writer in The Hill decries the Wisconsin lame duck

High on the list of priorities on the lame-duck agenda are plans to take away critical pieces of the new Democratic governor’s authority before he takes office.

Republicans plan to weaken the power of Gov.-elect Tony Evers, a Democrat, to make appointments to state agencies once he’s sworn in and to limit his authority with regard to how state laws are implemented.

Also, on the wish list of democracy-busting proposals is a plan to steal Wisconsinites democratic right to fully participate in the electoral process by limiting in-person absentee voting and enshrine rules around Voter ID disenfranchisement into state statute — making it harder for newly elected Gov. Evers to remove barriers to voting once in office.

USA Today calls the new bills in Michigan an attack on democracy.

In Michigan, Republican lawmakers introduced bills to limit the power of the incoming governor, attorney general and secretary of state — all Democrats and all women. . . These tactics are not new. In 2016, Republicans in the North Carolina legislature used a lame-duck session to pass a series of laws to curb the powers of the incoming Democratic governor.

Whether done by Republicans or Democrats, whether stripping incoming officials of power or passing controversial bills, the increasingly partisan use of lame-duck sessions is a clear violation of foundational democratic principles.

The problem is not limited to Michigan, Wisconsin, and North Carolina. Ohio, Oregon, Illinois, and other states have recognized the danger of the lame duck.

But ending lame duck abuse is not a pipe dream. A number of states have already worked to fix the problem.

At least 13 states move quickly to put leaders in power before the end of the year when an election occurs, limiting the time for last minute sessions. So, could this be a way to stop lame-duck legislatures?. . .

For example, Florida legislators assume office immediately after the election and Alaska’s governor is sworn in early December. This could help stop what’s happening in Wisconsin and Michigan where Republican lawmakers are aiming to limit the power of incoming Democrats surrounding key policy issues and voter approved initiatives.

The conservative FreedomWorks explains that in the nation’s early days, losing legislators went home, and there were no workdays until the new Congress convened. That changed in the 1930s when the Great Depression demanded immediate action. But since then, lame duck sessions have been a disaster for democracy. FreedomWorks says lame duck sessions should only be held in case of emergency—and there is no emergency now.

Deplorably, many restrictions of power embodied in the Constitution have been dismantled in the past century. Similarly, Congress has emasculated the 20th Amendment and Ackerman names recent enactments by lame-duck legislators:

They have been making very big decisions: passing NAFTA in 1994, impeaching President Clinton in 1998 and creating the Department of Homeland Security in 2002. These large initiatives serve as precedents for the coming lame-duck consideration of such weighty matters as permanent tax relief and the New START arms treaty with Russia.

A Congress and a President that respects the Constitutional process and the American people would not hold a lame-duck session.

And the conservative UnitedLiberty calls for an immediate end to lame duck sessions.

With the lame duck session, politicians who are retiring or have been voted out of office have one last chance to stick it to the voters, knowing they won’t face another election where they will have to answer to their constituents. Really, really bad legislation has a habit of getting passed during the lame duck session. . .

The lame duck session of Congress was a rare occurrence until 2000, with only thirteen such sessions between 1940 and 2000, nearly always for the purpose of addressing emergencies. Since 2000, there has been a lame duck session in EVERY Congress, but rather than dealing with emergencies, they have been used to push through agenda items that were not dealt with during the regular session. . .

In short, politicians have used the lame duck session to pass legislation that is unpopular with the American people. It may be time to end the lame duck session altogether, as it was once significantly limited by the passage of the 20th Amendment.

The National Constitution Center says that the 20th Amendment made lame ducks less lame. Previously, due to slow communication and transportation, new presidents and legislators, who were elected in November, did not take office until March 4 of the following year. The actual amendment is here.

The Wilson Center calls lame duck sessions “dangerous beasts.”

Politico suggests that all states and the federal government should follow the examples of Alabama, Indiana, Nevada, and Florida—which dump old legislators on the day of the election. But Politico offers an additional option:

Another option is the supermajority approach: Any new legislation passed in a lame-duck session would have to be passed by a large enough majority to prevent one party from adopting changes that don’t have widespread support. The transition period would stay the same, but only issues that have broad consensus—for instance, responding to some sort of emergency—would survive.

FiveThirtyEight has a long discussion of the issue, with the heading: “When else are you going to make a ton of bad choices with zero repercussions?”

The conservative TheFiscalTimes has an appropriately conservative solution to the lame duck abomination: go back to the original Constitution. That is, repeal the 20th Amendment, or a portion of it, and use the original Constitutional language. Article I, Section 4, Paragraph 2 clearly states:

The 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.

That would still allow a month after the election to settle who is seated, and except in case of emergency, and preferably requiring supermajorities to pass anything, there should be no sessions of any kind during that one-month period. That would eliminate the “mischief and mayhem” we are seeing now.

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Goethe Behr is a Contributing Editor and Moderator at Election Central. He started out posting during the 2008 election, became more active during 2012, and very active in 2016. He has been a political junkie since the 1950s and enjoys adding a historical perspective.

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