In a tradition as old as the republic itself, Congress - including a handful of members democratically rejected on Nov. 8 - will now wrap up its unfinished business in a lame-duck session.
Observers across the political spectrum have long decried lame-duck sessions as a dangerous threat to democracy, in which the outgoing president and some members of Congress govern without ever facing the electorate again. The skeptical sentiment isn't unfounded, but before we judge the lame duck too harshly, we should compare it to the typical Congress we see all year long.
This year, conservatives in particular are urging Congress not to do anything big during the lame duck. Paul Winfree of the Heritage Foundation notes that "unaccountable lawmakers produce irresponsible laws." Richard Manning of Americans for Limited Government asserts that it would be a "slap in the face" to do anything other than pass a stopgap measure to keep the government open.
Aren't irresponsible slaps in the face sort of Congress' thing? How else can you explain a $5.5 trillion mountain of debt, a tax code riddled with loopholes and handouts to special interests, or programs designed specifically to benefit favored industries (look no further than the Farm Bill, the Export-Import Bank, and energy loan guarantees)?
In truth, incentives drive members of Congress to be irresponsible nearly all the time. They face a barrage of downright gross incentives to indulge special interests to the detriment of everyone else.
Sound cynical? "Public choice theory" researchers have spent decades cataloguing the evidence.
Due to the rational ignorance and even irrationality of the typical voter, a vote-maximizing politician can be far more successful if he sticks to empty platitudes and meaningless identity politics than if he offers substantive suggestions for, say, tax reform.
Normally, politicians have less of an incentive to serve consumers, taxpayers, and future generations than they have to serve concentrated and organized special interests, campaign contributors, and favored industries. This explains why targeted tax provisions, subsidy programs, and regulatory privileges are so pervasive.
These favors are often assembled into massive bills (think: the Affordable Care Act, Dodd-Frank, or the Farm Bill) so members can cobble together disparate pet projects that could not succeed on their own. Leadership helps assemble these deals by rewarding cooperative members with campaign donations, opportunities to put their issues on the agenda, or coveted committee assignments.
So, if normal congressional incentives are so terrible, can lame-duck incentives be worse? Certainly, members who have retired or lost reelection face different incentives, but in some cases, they could actually be better incentives.
Non-returning members may be less responsive to their voters. On the other hand, they're also free to ignore the pressures of party leadership, to set aside the special interests they typically depend on for support, and to vote with their hearts.
Less optimistically, however, these members may be more likely to indulge one particular special interest: their next employer.
What does history tell us?
We and our colleague Emily Hamilton recently looked at the historical record to see if there were any trends in lame-duck legislation. We gathered data on more than 52,000 House and Senate votes spanning 75 years of lame-duck sessions. What we found may be surprising.
First, the talk of repudiated members casting unaccountable votes is overblown. In the typical lame-duck session, just 6 percent of congressmen and 13 percent of senators will have lost their reelection bids. An additional 5 percent will have voluntarily retired.
Second, we do find small differences in voting behavior. Members in lame-duck sessions are slightly less inclined to vote with their party, with Democrats and House members especially likely to go maverick. And they are about 3 to 4 percent less likely to vote at all.
Third, in terms of major legislation, lame-duck sessions have passed prosperity-enhancing trade deals and tax reforms, but they've also passed large pork-barrel spending bills. Some of these trends may simply be driven by timing: Large and complicated bills tend to pass at the end of the year, whether it's a lame-duck session or not.
So the record actually suggests that a lame-duck session of Congress may be the best time to make tough decisions, especially those that are likely to rub special interests the wrong way.
Although it's unlikely, this lame-duck session would be a perfect time to remove special-interest provisions in federal regulations, the tax code, and the budget. Call it what you want, but that wouldn't be so lame.