Tuesday, December 9, 2008

The lame duck may be a silly goose, but not because of the Constitution

"By 1860, the colors were set. The quadrennial choosing of a president was accomplished in the context of a ritualized 'campaign,' which began in the summer with the national conventions and ended in November with the election." --Potter, The Impending Crisis, 1976, p. 407.

Recently Dan Rather appeared on MSNBC and opined that we have too long a lame duck period between departure of a sitting President and inauguration of a new one. He favors having the incoming chief executive take the oath of office on December 1st.

This is one of those interesting cases where somebody calls for a specific answer to a perceived problem that would require a constitutional amendment, but the general difficulty he identifies could be repaired by the much simpler means of a couple of acts of Congress. Obviously, since the Twentieth Amendment states clearly that the term of a President ends "at noon on the 20th day of January," Obama couldn't have been sworn in last week, because Bush has to stay put another several weeks. (This is a digression, but is anybody besides me surprised that in the official government copies of the Constitution, the date is written as "the 20th day of January" instead of "the twentieth day of January"? Doesn't the long form seem more appropriate for a grand document like the U.S. Constitution?)

But while the Constitution says a president gets sworn in on 20 January (another way to write it!), nowhere does it mandate that he has to be elected in November. Here is all it has to say on the matter:

"The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." (Article II, Section 1)

When the Constitution was but a few years old, Congress passed the Presidential Election and Succession Act of 1792 (Currie, The Constitution in Congress: The Federalist Period, 1997, pp. 136-37). This provided that the electors--the people who form the electoral college that formally selects the President--would meet on the first Wednesday in December of an election year. The Constitution leaves it up to each individual state to determine how to choose those electors. There is no requirement that states let the people at large vote for them; as late as 1860 South Carolina's electors were chosen by the state legislature instead of by popular election (Amar, America's Constitution: A Biography, 2005, p. 158). Oh well, Lincoln probably wouldn't have gotten any votes there anyway.

But while there is no constitutional mandate how electors are picked--today obviously in all fifty states it's by popular election--note that Article II, Section 1 does say Congress can prescribe when the electors are chosen. And so we have Title 3, Section 1, of the United States Code:

"The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."

Do you see where I'm going with this? There are four significant dates for electing a president. First you have the Tuesday after the first Monday in November when many of us went to pull levers marked "Obama" or "McCain." Then comes last Wednesday when the electors met and it's all so routine and such a formality in our time that nobody even takes note. Then there is a day in January shortly after Congress convenes on January 3rd in which the House and Senate open the sealed envelopes delivered to them and officially count the electoral votes. (That's one reason why the Twentieth Amendment provided that a new Congress is sworn in seventeen days before a new President; obviously the new House and Senate must be in place to officially declare who they are going to be sending bills to for the next four years.) And then finally, on January 20th, Obama will put his hand on a Bible and Chief Justice Roberts will swear him in.

But remember: only the last two dates--the January ones--are required by the Constitution. In other words, if a majority in Congress agree that the lame duck period of an outgoing President is too long, they can't do anything about moving up the inauguration, as that would take a constitutional amendment needing two-thirds of Congressional approval and a possibly lengthy ratification process needing three-fourths of the states. Congress could, however, simply decide to change the first two dates.

They could say that instead of going to the polls on the Tuesday after the first Monday in November, we do it on the Tuesday after the first Monday in December. Then, of course, they'd need to also push back the date the electors meet, maybe make it on January 3rd with a requirement that they get the sealed envelopes to Congress within three days, which wouldn't be a problem for Fed Ex. Congress would still have plenty of time before January 20th to officially tabulate the results.

Now I should jump in and say that I'm only telling you what Congress could do about the long lame duck period, and how to potentially reduce it dramatically without needing a constitutional amendment. I'm not saying they should do this. There would be a couple of obvious problems with having us voters go to the polls in December. The weather in many parts of the country will likely be worse than in November; this could depress voter turnout. By the day after Thanksgiving we're all thinking about the holidays--or, if we're radical atheists, about how we can kill everybody's joy during the holidays--so I don't see a lot of people enjoying the idea of taking a break from Christmas shopping or chugging eggnog to go vote for the guy who gets to pull the lever to light Washington's giant Christmas tree. And then there is the not so small matter of what happened in 2000 when we wondered if there would be enough time between early November and January 20th to figure out who the hell the President was. Imagine the chaos if we condensed the lame duck period another month should we ever experience another debacle like Bush vs. Gore.

And that observation reminds me: does anybody remember in 2000 Dan Rather complaining that it was taking too long for George W. Bush to succeed Bill Clinton?

1 comment:

John Cowan said...

I suspect that the choice of "20th" over "twentieth" was made by the printers.