Congressional Terms

                The topic of discussion on this Constitution Monday comes from the Twentieth Amendment to the Constitution of the United States of America:  “… the terms of Senators and Representatives [shall end] at noon on the 3d day of January … and the terms of their successors shall then begin.”  This provision of the Constitution gives newly elected Senators and Representatives the right to assume the duties of their offices on the third day of January following their election in November.

                W. Cleon Skousen explained, “After the Constitution was ratified by the required number of states, the new government officially began operation on March 4, 1789.  Therefore, the terms of Senators and Congressmen always began and ended on March 4 in odd-numbered years.  Because Article I, section 4, clause 2 of the Constitution required sessions of Congress to begin on the first Monday in December each year, those who were defeated in the November elections (always in even-numbered years) were required to attend the next session until their terms expired the following March 4.  Referred to as `lame ducks,’ they continued to represent people who had refused to elect them.

                “Those who had won the November elections were not entitled to take office until their predecessors’ terms had expired.  Therefore, since the next Congress would not assemble in regular session until the December following March 4, they were not able to take office for more than thirteen months after the election was held!

                “The Twentieth Amendment solved this serious problem by enabling newly elected Senators and Congressmen to take office on January 3, some two months after their election instead of the former thirteen months.”  (See The Making America – The Substance and Meaning of the Constitution, p. 750.)

                John Copeland Nagle of The Heritage Foundation added further reasoning:  “The six clauses of the Twentieth Amendment are readily divided into three pairs.  The first two sections shorten the `lame-duck’ period after an election and before the new officials take office….

                “The first two sections respond to the initial purpose for the amendment, which was the concern about lame-duck sessions of Congress.  The framers of the Twentieth Amendment, however, wanted to eliminate such lame-duck sessions of Congress altogether, not just shorten them.  Legislation enacted by lame-duck Congresses had been roundly criticized as undemocratic because the people had already selected the successors of the representatives who were enacting bills in lame-duck sessions.  The text of the amendment failed to prohibit future lame-duck sessions, though, and that purpose was forgotten soon after the states ratified the amendment in 1933.” 

                Nagle continued his article by stating that “Congress met in lame-duck sessions thirteen times since the Twentieth Amendment became law.”  Some of the actions taken by lame-duck sessions include:  (1) Senate confirmation of Stephen G. Breyer as a federal appeals judge in 1980; (2) House impeachment of Bill Clinton after the 1998 election.

                Nagle continued, “There is another question that the framers of the Twentieth Amendment anticipated but which the language of the amendment fails to resolve.  According to the Twelfth Amendment, the House of Representatives chooses the President if no candidate receives a majority of the electoral votes.  Thomas Jefferson, John Quincy Adams, and Rutherford B. Hayes were all elected by the House – more specifically, the lame-duck House, not the newly elected House.  The supporters of the Twentieth Amendment wanted to ensure that any future selections of the President would be made by the new Members of the House.  The text of the amendment does not express that purpose, and the question of which House could act was one of many unanswered constitutional questions discussed while the presidential election of 2000 was still in dispute.  (See The Heritage Guide to the Constitution, pp. 419-420.)