Are the Democrats Planning a Lame-Duck Donnybrook?

Despite GOP fears, chances are the Democrats don't have the stomach, or the numbers, to push through controversial legislation

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Charles Dharapak / AP

House Speaker Nancy Pelosi, Representative Paul Kanjorski, Senate majority leader Harry Reid and Senator Chris Dodd attend the signing of the financial-reform bill in Washington, July 21, 2010

If you listen to Republicans, the lame-duck session of Congress — a special session held on Capitol Hill between the November midterm elections and the seating of a new Congress in January — will be filled with scary Democratic attempts to pass controversial climate-change legislation, tax hikes and union sops before the party loses some or all of its majority. Listen to Democrats, and that lame-duck session promises to provide a brief, postpartisan window in which there's a chance of addressing some of the country's most pressing issues such as immigration, global warming and the skyrocketing federal deficit. In reality, the much anticipated lame-duck session is likely to be far less eventful than advertised.

The GOP alarm bells play well with a base petrified of further Democratic spending and convinced the Dems will use any obscure tactic to ram through controversial bills. Republican parties in several states are going so far as to look into ways the state laws can be interpreted so that winners might be seated immediately after the midterms — for example, special elections for the Senate seats in Delaware, New York, Colorado and Illinois.

As Republican chances of taking back the House — and maybe even the Senate — have increased, the dire warnings are also an attempt to delegitimize any potential legislation Democrats may attempt. House minority leader John Boehner has already called upon Democratic leaders to promise not to pursue a "sour grapes" session after the election, and on Tuesday he asked voters to join him in that effort by pressing Democrats on the matter over the August recess. "A couple of weeks ago I challenged [House Speaker Nancy] Pelosi and [House majority leader Steny] Hoyer to pledge right now that they won't use a lame-duck session to pass controversial bills like a job-killing national energy tax," Boehner told the press. "We should all be calling on the Democrats to pledge that they won't do this." Representative Chris Van Hollen, head of the Democratic Congressional Campaign Committee, which works to elect Democrats to Congress, on Tuesday denied the existence of any secret plan to pass climate-change legislation in a lame-duck session.

Still, some in the party may have other ideas. Democrats have floated the idea of passing the Employee Free Choice Act, a controversial bill that makes it easier for unions to organize, as well as voting on recommendations from President Obama's deficit-reduction commission during the lame-duck session. And Senator John Kerry, who's leading the Senate efforts on climate change, says he hopes to pass a bill to regulate greenhouse gases. "We will continue to try over the next weeks, but if it is after the election, it may well be that some members are free and liberated and feeling that they can take a risk or do something," Kerry told Bloomberg News.

It may be a long shot, but Kerry does have some reason for hope. In past lame-duck sessions, the results of the elections have sometimes freed members to take controversial votes they might have avoided before — like in 2004, when the large GOP wins persuaded some in Congress to help push through a debt-limit increase and the 9/11 commission's recommendations. Some major pieces of legislation have passed in previous lame-duck sessions, including raising the gas tax and immigration reform in 1982 and passing the Clean Air Amendments of 1970. But it's highly unusual for a party that has lost one or both chambers to ram through controversial legislation in the waning days of their power. More often the session has led to bipartisan agreements: in 1994 Republicans worked with President Clinton to pass the General Agreement on Tariffs and Trade, and in 2002, when Democrats lost control of the Senate, they worked with President George W. Bush to push through the creation of the Department of Homeland Security as well as the Defense and Intelligence Authorization Acts. The most controversial lame-duck measures have come not in legislation but in actions like the 1998 House impeachment of President Bill Clinton, the 1954 Senate censure of Senator Joe McCarthy and the 1974 confirmation of Nelson Rockefeller as Vice President.

In any lame-duck session, the Democrats would still have one important problem: having less than the 60 votes needed to overcome a GOP filibuster in the Senate. Finding GOP votes for a climate-change bill appears unlikely; it's equally doubtful any Republicans would vote for raising taxes, even if recommended by the bipartisan Deficit Reduction Commission. And to pass the union bill, Democratic Senator Blanche Lincoln, a staunch opponent, would have to have a sudden change of heart.

Still, a lame-duck session will almost certainly take place this year, for a very practical reason. With Republicans latching on to Democratic spending as a campaign issue, Dems are postponing passage of next year's funding bills until after the election to avoid providing the GOP with more political fodder. That will likely mean that the lame-duck session will feature a noncontroversial resolution that continues funding the government, until Congress can pass the delinquent spending bills in a new session next year — after a new Congress is seated.