AP Politics Kill the Lame Duck What we’re witnessing in Wisconsin, Michigan and elsewhere is undemocratic and clearly at odds with the will of the public. Why do we allow it?

Donald Moynihan is the McCourt Chair at the McCourt School of Public Policy at Georgetown University.

Lame-duck legislative sessions—when outgoing lawmakers convene to enact new policy after an election but before their replacements have been sworn in—are a horse-and-buggy political arrangement that somehow survived into the 21st century. Designed for a time when new elected officials had to travel long distances to make it to the capitol, they are mostly harmless, like an antique shotgun hanging on the wall—at least until recently. Today, Republicans in Wisconsin, Michigan and North Carolina are weaponizing lame duck sessions to thwart the will of the public as newly elected officials sit on the sidelines, watching their predecessors straitjacket their mandates to govern.

What is the case against lame-duck legislatures? In essence, policymakers are acting without the traditional backdrop of public accountability—a looming election—to govern their behavior. Freed of that pressure, legislators may behave differently. In some cases, we might welcome legislators feeling freer to follow their instincts, and there is some evidence that congressional lame duck sessions are more productive than at other times of the year.


But the soon-to-be-exiting politicians may also adopt policy positions that are clearly at odds with the will of the people. Sore losers make for bad lame ducks.

Such is the case now in Wisconsin and Michigan, where Republicans are using the window before the new legislature arrives to kneecap their successors. Gerrymandered legislatures are pushing through a hodgepodge of policies they have no mandate for, and which have, in some cases, been expressly rejected by the public.

Let’s take Wisconsin, where I lived and worked as a professor of public affairs in Madison for 13 years. Incumbent Republican Governor Scott Walker lost to Democrat Tony Evers in the 2018 election, breaking up the unified control of government that the GOP has enjoyed since 2010. In aggregate, Republicans had fewer votes for their State Assembly candidates than Democrats in 2018, but thanks to the magic of extreme gerrymandering, retain comfortable majorities. Now, having lost the governorship, they set out to win the lame duck session.

Republicans responded to their losses by rejecting both the choice of the public and restricting its input. Having decided that early voting helped more people to vote in liberal cities, they’ve cut it down so that it can occur a maximum of only two weeks before an election, instead of the six weeks previously allowed. On Tuesday, they confirmed 82 new appointees made by Walker to various positions in the state government. They’ve voted to restrict the powers of the new governor in sweeping changes that apply not only to whom he can appoint, but also to his ability to negotiate directly with the federal government on intergovernmental policies. What this means in practice is that Evers will be shackled to the policies of his Republican predecessor, such as maintaining work requirements on Medicaid recipients.

Michigan Republicans have similar plans. The state Legislature is currently considering bills that would eliminate the ability of newly elected Governor Gretchen Whitmer to appoint key officials in the state government and make it more difficult for her to shut down a controversial oil pipeline that figured heavily in the November election. Likewise, the Michigan Senate is moving forward with a plan to strip the incoming Democratic secretary of state of the ability to enforce campaign finance laws. Before the election, under the threat of a statewide ballot initiative that would’ve raised the minimum wage and required paid sick leave—and likely would’ve increased Democratic turnout in the election—legislators pre-emptively passed a bill to do those two things and get the proposal off the ballot; now that the election is over, the Legislature is gutting the wage and sick leave law it passed mere months ago. They’re even going so far as to try and override a ballot measure that won in November with more than 60 percent of the vote: Whereas Michigan voters passed a referendum that created a new nonpartisan redistricting commission, the Legislature now aims to neuter the influence of that commission so that Republicans can control Michigan’s redistricting process for the fourth consecutive time.

In both states, Republicans seek to significantly weaken the discretion of elected attorneys general, making them creatures of the Legislature when it comes to representing the state in court. Both Republican legislatures want to force their states’ new Democratic attorneys general to defend positions they actually campaigned against. Even as Democrats in Wisconsin won an election while pledging to withdraw from a lawsuit that seeks to eliminate the Affordable Care Act, Republicans will force the new administration to abandon that promise.

The model for all of this is North Carolina. Two years ago, a Democratic gubernatorial candidate won, breaking up the GOP’s unilateral control of the state government. The Republican Legislature then set about removing some of the governor’s crucial powers, giving him only one-fifth of the appointments of his predecessor, including restrictions on Cabinet appointments. Now they are at it again, planning to use a lame-duck session to control election oversight, amid growing evidence of GOP election fraud in the state.

Lame-duck sessions make for bad policymaking. In general, good policy involves incorporating the insights of experts and stakeholders, consulting and listening with the public, and at least trying to find some middle ground with the opposing party to ensure the longevity of the policy. By contrast, the Wisconsin Legislature released hundreds of pages of proposed legislation late on a Friday evening and was voting on it by the following Tuesday night. No meaningful consultation or hearings took place. Legislative leaders then rewrote the bills in the early hours of Wednesday morning, and told their members to vote for them without a chance to closely scrutinize the text. This was no accident; it reflects the rushed nature of lame-duck policymaking.

Policies passed in the dark of night, with little to no debate, are rarely good for the public. Expect the usual outcomes of sloppily written legislation: unanticipated consequences, unclear directives—and lawsuits, lots of lawsuits.

What are some alternatives to lame-duck sessions? One option is the parliamentary model: Once the election is over, the old parliament is disbanded and cannot execute new policies. If there is a delay in seating the new parliament, a caretaker government maintains existing policy. If a state still wants its legislature to be in session in November and December, that state could change the timing that a new legislature takes over to, say, mid-November, rather than waiting until January. We don’t even have to look overseas to pursue this option. Alabama, Indiana and Nevada all swear in their new legislators on the day after the general election. And in Florida, state law requires that “the term of office of each member of the Legislature shall begin upon election,” meaning new legislators take office immediately once the votes are tallied.

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.

Of course, such changes may be difficult to achieve, since they will require changes to state constitutions. But that they are needed is telling of a deeper problem.

We run our democracies based on a mixture of rules and norms. Rules are often unwieldy and overly constrictive, but they become necessary when norms of good behavior collapse. This is what is happening now within the Republican Party, as its members thumb their noses at the most fundamental norm for elected officials: to honor the will of the people. There appears to be a growing belief within the GOP that elections are advisory, and subservient to elected officials’ wishes. Nationally, Republican Party leaders have been notably silent on what is happening in Michigan and Wisconsin, effectively communicating to party members that such tactics will be accepted.

Unless rules or norms change, it is only a matter of time until such undemocratic practices become standard.