Common Interpretation

The Twentieth Amendment

If awards were given to constitutional amendments for quietly doing their job without generating litigation or public controversy, certainly the Twentieth Amendment would be a contender for that prize. Ratified in 1935, it has never been the subject of a Supreme Court decision and has rarely been interpreted by lower courts.

The Amendment has two principal sections. The first section fixes the start dates for the regular terms of members of the Senate and House of Representatives as January 3 of the year following their election and for President and Vice President as January 20.  Previously, under terms set in 1788 by the Confederation Congress, all of these terms began on March 4 following the election. The second section states that Congress shall commence a new session each year on January 3 unless it appoints another day. Previously, the Constitution, in Article I, Section 4, Clause 2, provided for annual sessions of Congress beginning on December 5 unless Congress set a different date. These two sections impact how Congress operates every year. Under them, each biennial Congress, which consists of Senators and Representatives whose terms begin in January of the same year plus Senators with continuing terms, has two regular sessions, one each year starting in January.

The remaining sections of the Amendment have never been used or were only used to ratify or implement it. Section 3 declares what happens if the President-Elect dies before taking office or if no one has qualified to become President when a new presidential term begins. Section 4 authorizes Congress to enact procedures for choosing a President or Vice President in the event that no candidate has received a majority of electoral votes for the office and any of the contenders dies before Congress has chosen among them. Two final Sections, 5 and 6, set the Amendment’s effective date and limit its ratification period.

The cycle of beginning sessions in January, with the first session of each Congress starting shortly after the election, and of ending sessions late in the year, seemed so natural that perhaps only historians remember that it only began in 1935 with the implementation of the Twentieth Amendment. Before that time, unless called into session earlier by the President, each Congress convened for its first session in December, thirteen months after its election. Even more bizarre, its second session began the following December, which was after the election of a new Congress, and could last no more than three months because the terms of its members ended in March. For obvious reasons, this second session became known as the “short” or “lame-duck” session.  

Congress’s peculiar original session schedule came about by happenstance. As originally ratified, the Constitution stated, “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.” A December start for the annual congressional sessions would not have caused serious problems but for an unrelated act by the Confederation Congress. During the summer of 1788, the Constitution was ratified by the final few states needed to put the new government in place. In response, meeting during the following September, the Confederation Congress adopted a resolution fixing March 4, 1789, as the date “for commencing proceedings” under the new government. As a result, the terms of the first President, Vice President, Senators, and Representatives began on March 4, and because the Constitution states that those terms are to last for four, four, six, and two years, respectively, they would end on a future March 4.

Read together, the Clause stating that congressional sessions shall start in December and the resolution declaring that terms for the first President and members of Congress would begin in March created an anomaly. Each new Congress would not meet for its first regular session until thirteen months after its election and would convene for its second regular session a scant three months prior to the end of its term. Further, because the terms of a new President and new Congress began on the same day, unresolved presidential elections would be decided by the old Congress rather than the new one. Because the two provisions creating the situation were embedded in the Constitution—one directly and one indirectly—the schedule could only be changed by a constitutional amendment.

Some lawmakers quickly recognized the problems with Congress’s session schedule and sought to reform it. During the first three decades of the new republic, eighteen different bills or resolutions were introduced in Congress to change the opening day of Congressional sessions, typically to a date earlier in the fall than the first Monday in December. By moving up the assembly date, these proposals would shorten the time between when Senators and Representatives took office and when they first met. They also would lengthen the so-called short session that had to end with the expiration of congressional terms on March 4.

As odd as the old congressional schedule’s delayed start and lame-duck session might look to modern commentators, it served the interests of lame-duck lawmakers. As critics of the schedule observed, once a legislator lost or did not stand for re-election, a lame-duck session gave that legislator an opportunity to legislate without being responsible to voters.  Outgoing Senators and Representatives could offer votes in return for executive-branch appointments, reformers charged. This was especially true for members of the House of Representatives, whose terms were shorter and turnover greater than for Senators. The House therefore became the center of opposition to constitutional amendments designed to eliminate the lame-duck session.

Reformers persisted in their Sisyphean efforts to change the congressional meeting schedule. During the fifty-year period from 1876 to 1924, for example, over seventy different proposed constitutional amendments were introduced in Congress to change the date for the commencement of terms of the President, Vice President, and members of Congress. None of these proposals passed Congress even though supporters claimed that there was widespread popular support for them.

Efforts by Republican President Warren Harding to push a ship subsidy bill through a lame-duck session of Congress in 1922 gave renewed impetus to the cause of limiting such sessions and brought Nebraska Republican Senator George W. Norris on board. The ship subsidy bill, a centerpiece of Harding’s America First program, was designed to expand the nation’s merchant marine fleet by subsidizing the construction of cargo ships by private companies. The legislation was opposed by labor and farm groups as a “grab” by commercial interests and the shipping industry.

Despite the Republican Party’s overwhelming majority in both houses of Congress, the ship subsidy bill failed to pass during the 1921-22 session and became an issue in the 1922 mid-term elections. As a result, Republicans lost seven seats in the Senate and 70 seats in the House of Representatives. In an effort to salvage the ship subsidy bill, Harding called a special session of the lame-duck Congress for November 20, 1922, which continued until the regular short session of Congress began in December. He nearly got his way. The legislation passed the House with the overwhelming support of lame-duck Republicans, who voted for the bill by a margin of 84 to 17, with ten of the yes voters later receiving presidential appointments. The bill, however, ultimately succumbed to a Democrat-led filibuster in the Senate. The episode became Exhibit A in the case for the Twentieth Amendment.

A progressive from a farm state who had opposed Harding’s nomination, Norris took up the cause of reform as chair of the Senate Agriculture Committee in the midst of the battle over the ship subsidy bill. He proposed and pushed through his committee a constitutional amendment to shorten the lame-duck period by having both congressional terms and regular sessions start in January. Reported from Committee on December 5, 1922, Norris’s Amendment was opposed by President Harding, who viewed it as a personal affront.  Although it passed the Senate by a wide margin, the Amendment failed when the House Republican leadership refused to schedule it for a vote.

Norris did not give up. He re-introduced his Amendment in five successive Congresses until it finally passed both houses in 1932. Perfected from Norris’s initial 1922 proposal, the revised text put forward in 1923 became the standard thereafter. On each of these five occasions, the Amendment sailed through the Senate Judiciary Committee on which Norris served and of which he became Chair in 1926, and passed the Senate by margins far in excess of the necessary two-thirds majority. Until 1931, however, it died in the House without a vote.  Stung by huge Democratic gains in the 1930 mid-term elections, the House Republican leadership finally allowed a vote on a modified version of Norris’s Amendment during the 1931 lame duck session, but it would have retained the short session of Congress, so Norris opposed it.  Putting off consideration of the Amendment until the 72nd Congress worked out for Norris.  By the time the new Congress was organized in December 1931, thirteen months after it had been elected in the wake of the stock-market collapse and onset of the Great Depression, enough Republican Representatives had been defeated in the general elections of 1930 or subsequently died and been replaced in special elections to give Democrats a one-seat majority in the House. These changes in membership assured passage of what was by then known as “the Norris Amendment.”

On January 4, 1932, the Senate Judiciary Committee chaired by Norris reported the Amendment as Senate Joint Resolution 14. As before, the Committee Report gave three reasons for the measure: allowing a new Congress to “begin the performance of its important duties as soon after election as possible”; abolishing “the so-called short session of Congress”; and having a “new House of Representatives fresh from the people” in place to “select the new President” in the event of an inconclusive presidential election. Notably, one of the Amendment’s more consequential effects—shortening the transition period between presidential administrations by six weeks—was not among the Committee’s principal reasons; the prospect of a lame-duck presidency elicited less concern than that of a lame-duck Congress.

By now intimately familiar with the proposal, the full Senate passed it just two days after receiving it from committee. The new Democratic House acted almost as swiftly.  The Elections Committee reported the measure on February 2, 1932, less than a month after receiving it from the Senate, and adopted only minor changes to the Senate-passed language. After adding a section limiting the ratification period to seven years, the full House added its approval by a vote of 336 to 56 on February 16. Less than two weeks after the House voted, a Conference Committee of the Senate and House agreed to compromise language accepting most of the technical changes made by the House and its seven-year limit for ratification. Both chambers approved the conference report within days and sent the Amendment on to the States for ratification on March 8, 1932. 

In most states, the Amendment was ratified during the first session of the state legislature following the Amendment’s formal submission to the states. Some of these legislatures were in session at the time but most of them would not meet until the following year. By the time that the remaining state legislatures had convened in January 1933, it was a race to the finish. Eighteen states ratified the Twentieth Amendment during the first three weeks of 1933, leaving it just one shy of the thirty-six states needed for final approval on Monday, January 23. Jockeying to put the Amendment over the top, four states ratified it that day and three more the next day. By the end of the 1933 legislative sessions, all forty-eight states had ratified the Twentieth Amendment, making it one of the few amendments to the Constitution ratified by all the states and the fastest to achieve that feat.

Further Reading:

Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (2005).

Akhil Amar, America’s Constitution: A Biography (2005).

Jack M. Beermann and William P. Marshall, The Constitutional Law of Presidential Transitions, 84 N.C. L. Rev. 1253 (2006).

David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution (1776-1995) (1996).

Edward J. Larson, The Constitutionality of Lame-Duck Lawmaking: The Text, History, Intent, and Original Meaning of the Twentieth Amendment, 2012 Utah L. Rev. 707, 707-58.

Richard L. Neuberger and Stephen B. Kahn, Integrity: The Life of George W. Norris (1937).

Matters of Debate

“One President at a Time”: Tightening the Presidential Transition

On January 19, 1937, on the eve of Franklin Roosevelt’s second inauguration, it seemed that all of Washington was consumed by a single subject: the weather. The forecast — rain and cold temperatures — dominated discussion “to the exclusion of almost all other topics,” the New York Times reported, adding that “interest in the weather had been heightened by the fact that this is the first inauguration to take place” on January 20 rather than March 4. The Twentieth Amendment, ratified in 1933, had changed the date. Worries about the weather, it turned out, were well-founded: on the grounds of the U.S. Capitol, thousands of spectators stood ankle-deep in mud, their umbrellas no protection against the stinging sleet and slashing wind. One of the few dry seats at the ceremony, up on the reviewing stand, belonged to Senator George W. Norris — father of the Amendment. “They are all trying to blame this on me,” he laughed, but refused to take responsibility for the rain.

The date of presidential inaugurations had, in truth, been something of an afterthought during Norris’ decade-long effort to pass the “lame-duck” amendment. The issue that Norris and other reformers aimed to address was not a lame-duck presidency, but a lame-duck Congress. While the same basic concern — that politicians who have been repudiated by voters can no longer be expected or trusted to represent those voters — applied to both branches, the problem was certainly more acute in the Congress: while an outgoing president remained in office for four months after Election Day, lame-duck legislators served for thirteen months after being defeated.

Still, the interregnum between presidential administrations was long enough to have created problems, even crises, of governance at crucial moments in the nation’s history. The awkward co-existence of a president who had lost his political legitimacy and a president-elect who, as yet, lacked constitutional authority presented obstacles in the face of serious challenges. A protracted period of uncertainty, as Woodrow Wilson observed in 1916, was “fraught with the gravest dangers.” In December 1860, scarcely a month after the election of Abraham Lincoln, a state convention in South Carolina voted to secede from the Union; over the next six weeks, half a dozen more Southern states did, too, fueling a sense of panic in the North. Lincoln was frustrated — at times, infuriated — by his inability to influence events. He said he would willingly shorten his own life by “a period of years” if he could shave as many months off the interminable delay before his inauguration. Throughout the winter of 1932-33, during the depth of the Great Depression, President Herbert Hoover — beaten by Roosevelt in November — lobbied the President-elect privately, publicly, and without success, to endorse policies F.D.R. strongly opposed. In a memo to an ally in the Senate, Hoover acknowledged that if Roosevelt had yielded to the pressure, he would have “ratified the whole major program of the Republican Administration” and abandoned “90% of the so-called new deal.”

Another Perspective

This essay is part of a discussion about the Twentieth Amendment with Edward J. Larson, University Professor, Hugh & Hazel Darling Chair in Law, Pepperdine University School of Law. Read the full discussion here.

The Twentieth Amendment narrowed the gap from sixteen weeks to ten — enough time, reformers assumed, for an orderly but not overlong transition and for a new Congress, seated on January 3, to resolve a deadlocked election or replace (according to procedures set forth by the Amendment) a President-elect who has died before taking office. Roosevelt, in 1937, became the first President to take the oath of office in January, but another sixteen years passed before the nation had a lame-duck in the Oval Office. That was Harry Truman, who decided not to run for re-election in 1952 and was succeeded, in January 1953, by Dwight Eisenhower. (When F.D.R. had died in office in 1945, Truman, as Vice President, succeeded him immediately.) Aware that his actions would set a precedent, Truman ran a model transition — setting up personal meetings between the President and President-elect, directing his administration to prepare detailed briefings on policy matters, and permitting sub-cabinet officials to remain in office to ensure that the federal government continued to run smoothly and without interruption.

Yet what Arthur M. Schlesinger, Jr., called “the postelection interlude of national impotence” has only been reduced, not eliminated, by the Twentieth Amendment. Compared to many other countries — particularly those, like Britain or Canada, with parliamentary systems of government — the U.S. presidential transition period remains peculiarly long, a gap that is always more glaring when partisan control of the White House shifts, and, especially, in times of economic distress or international conflict. As Barack Obama prepared to take office in January 2009, for example, the U.S. economy was in free fall, the nation was at war in Iraq and Afghanistan, and the credibility of the outgoing president, George W. Bush, was at low ebb. In the weeks after his election, Obama announced a series of actions he planned to take as president, but his relative restraint left some supporters unsatisfied: “[Obama] says we only have one president at a time,” Congressman Barney Frank said. “I’m afraid that overstates the number of presidents we have. He’s got to remedy that situation.”

Hence the proposals, over recent decades, to tighten the transition further still. In the mid-1980s, Senators Claiborne Pell and Charles Mathias introduced a constitutional amendment to move Inauguration Day to November 20, and the swearing-in of the new Congress to November 15. The effort failed, as any future attempt is likely to do — absent a crisis so severe that it galvanizes not only Congress but the states, which hold the power to ratify, or not ratify, a new amendment. And perhaps — the weather in January notwithstanding — George Norris got the balance as close to right as anyone can. It is true that an interval of any real length creates uncertainty and invites a flurry of last-minute, unaccountable action by a departing president. But the process of understanding, staffing, and assuming control of the federal government is as complex an operation as any human being might devise. Some things  — even today, in an era of instant communication — take time.

Matters of Debate

The Constitutionality of Lame Duck Lawmaking

Given the clear text and transparent ratification history of the Twentieth Amendment, one might hope that no one would contest its present meaning, but that ignores the Amendment’s political uses. One issue frequently rises to the surface. Often, when an outgoing Congress does or passes anything after the November elections, opponents object that it violates the Twentieth Amendment. In 1998, for example, Yale University Professor Bruce Ackerman asserted that the impeachment of President Bill Clinton by a “lame-duck” Republican House of Representatives after the general elections violated the spirit of the Twentieth Amendment. Twelve years later, the former Speaker of the House that led the impeachment, Newt Gingrich, cried foul on the same grounds when an outgoing Democratic Congress enacted legislation after the 2010 general elections. In politics, much depends on whose ox is gored. The Twentieth Amendment has become a tool in the partisan debates on the validity of laws passed or actions done by a “lame-duck” Congress after the general elections. History shows that there is no basis to such claims.

Picking up the history where the joint statement left off, the second session of the 72nd Congress in 1932-33 was the last “short session of Congress,” and the last “lame-duck session” as that term was then used. That fact does not mean, however, that the Amendment was intended to bar any future Congress from continuing its second regular session after the November elections or being called into special session by the President after those elections were decided. Prior to the Twentieth Amendment, both “short session” and “lame-duck session” were terms of art that simply referred to the second regular session of any Congress that first convened in December after the elections of its replacement (hence “lame duck”) and adjourned no later than when members’ terms ended on March 4 (hence “short session”). The Amendment’s principal proponent, Senator Norris, consistently objected to the short session due to its length, which he viewed as too short “to do good work,” and not due to its empowerment of lame-duck members. To be sure, some proponents of the Amendment predicted that Congress would not remain in session after the November elections once the Amendment was implemented. They were, however, repeatedly and pointedly warned that such a scenario was probable. They also chose to pass the Twentieth Amendment with its current text rather than opt for a proposed alternative that would have imposed a fixed pre-elections deadline for adjournment.  Norris expressly rejected the alternative precisely because it substituted one type of short session for another and viewed abolishing short sessions as a principal objective of the Amendment.

Another Perspective

This essay is part of a discussion about the Twentieth Amendment with Jeff Shesol, Founding Partner of West Wing Writers. Read the full discussion here.

Much of the confusion stems from the fallacious equation of lame-duck lawmaking with lame-duck sessions. Even assuming that the Amendment’s purpose was to abolish “lame-duck sessions,” when the Amendment’s supporters spoke of “lame-duck sessions” they meant Congress’s old short sessions, which took place entirely after the November elections. They manifestly did not mean to speak of, far less outlaw, continuations of regular sessions that began prior to the elections. As in the joint statement, Norris and the other chief proponents of the Amendment consistently called for not having Members of Congress wait thirteen months before meeting and not having a time-limited second session of each Congress. The Amendment accomplished these goals with totally eliminating the lame-duck period. When the text so closely mirrors the supporters’ stated purposes, those purposes should be accepted at face value, but there is an understandable temptation to think otherwise, especially when that supposed meaning serves partisan purposes.

The issue gains steam whenever an old Congress meets after the November elections, particularly if those elections have shifted power from one party to another in one or both houses. How could the Amendment’s supporters have countenanced lame-duck lawmaking after such a transfer of power occurs? Perhaps it was because they saw the risk of such lawmaking as a lesser evil than a two-month vacuum of power. Perhaps it was because they feared such lawmaking less than an abrupt installation of a new Congress or administration without some time for transition. Perhaps it was because, as politicians, they foresaw benefits in giving an outgoing Congress the option of wrapping up unfinished business following the elections. Or perhaps it was simply because they agreed with Norris when he told the Senate, “I am not casting any insinuation, and this amendment does not cast any insinuation against any man who has been defeated for reelection.” Whatever the reason, the result is clear. The Twentieth Amendment in no way requires adjournment of the second session of post-1933 Congresses prior to the November elections. Indeed, when Norris himself became a lame-duck senator in 1942, without raising the least objection, he participated and voted in Senate meetings held between the November elections and the end of his term in January 1943. He saw it as his duty. World War II was in full swing, and continued congressional action was needed.

Matters of Debate

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