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Are Lame-Duck Sessions Undemocratic?

Welcome to FiveThirtyEight’s weekly politics chat. The transcript below has been lightly edited.

sarahf (Sarah Frostenson, politics editor): Today we’ve assembled a larger-than-usual crew to figure out just what is happening in Wisconsin and Michigan. In both states, lame-duck Republican state legislatures are trying to pass a number of bills that will limit the power of incoming Democrats. Let’s unpack what is happening and whether this has happened before.

perry (Perry Bacon Jr., senior writer): The GOP-controlled Wisconsin legislature has a huge package of bills that would limit early voting and strip power from both the attorney general and governor, both newly elected Democrats. And the Michigan legislature is also trying to strip power from the attorney general and governor.

nrakich (Nathaniel Rakich, elections analyst): In both states, bills have been proposed to give the legislature the power to intervene in the state’s lawsuits, which are usually left to the governor and attorney general.

That would allow the Republican legislature to be involved in cases regarding some state laws that the soon-to-be Democratic governors and attorneys general might not be eager to defend. For example, Michigan has a law carving out a religious exemption that allows adoption agencies to refuse to work with same-sex couples. And the Wisconsin legislature might want to keep the state involved in a lawsuit challenging the constitutionality of Obamacare.

Michigan Republicans are also proposing to take campaign-finance oversight away from the newly elected Democratic secretary of state and give it to a bipartisan board, which would probably just result in gridlock and not a lot of active regulation.

galen (Galen Druke, podcast producer): In Wisconsin, the Milwaukee Journal Sentinel has been covering this extensively and has a detailed list of the proposed changes.

nrakich: Let’s back up for a second.

In both Wisconsin and Michigan, Republicans currently have a state-government trifecta — i.e., they control the governor office, the state Senate and the state House.

But Democrats won the governor offices in both states last month (plus the attorney general offices).

However, those Democrats won’t take power until January, so Republicans still have one month of total control. And they’re making the most of it with lame-duck legislative sessions.

perry: All of this is a bit reminiscent of how Republicans stripped power from the governor of North Carolina after a Democrat was elected in 2016.

nrakich: That’s right, Perry — after Democrat Roy Cooper won the gubernatorial election in North Carolina that year, the Republican-controlled legislature took away or restrictions on the governor’s power to make appointments (to the state board of education, board of elections, even his own cabinet). That’s similar to what Wisconsin Republicans are trying to do right now.

For example, in Wisconsin, the governor would no longer have the power to appoint the head of the Wisconsin Economic Development Corp., which functions as the state jobs board.

sarahf: But wasn’t what happened in North Carolina in 2016 challenged by the courts?

galen: Yeah, the litigation in North Carolina is still ongoing.

nrakich: For example, Republicans changed the law that said that the governor appoints a majority of members on the North Carolina State Board of Elections. That change was found unconstitutional, but the board is still in limbo — in fact, it has to dissolve by Dec. 12, which isn’t great timing considering that there is currently an open investigation into possible election fraud in the state’s 9th District.

perry: I think the big, broad questions are 1. Is this unprecedented (that is, do Democrats do this kind of thing too?) 2. Is this any worse or different from politics as usual? 3. What should be happening right now?

galen: The tension we’re seeing here is about what governments can do with the power afforded them and what they should do according to democratic norms. There is no easy answer and this conflict isn’t new, but in our current partisan era, it may have become more acute.

nrakich: I think it’s bad anytime one political party tries to strip powers from an office only after it knows that its political opponents have taken control of that office.

I have much less of a problem with more typical lame-duck legislating.

For example, Republicans in the Wisconsin legislature are also trying to pass a bill that shortens the early-voting period.

You might disagree with that policy, but the current legislature (and Gov. Scott Walker) were elected to serve through the end of 2018, so they’re entitled to continue making laws until then.

There’s always a last-minute scramble to get stuff done when you know you’re running out of time — it’s as true for legislatures as it is for procrastinating students.

sarahf: But in response to Perry’s first point, it does sound as if what happened in North Carolina in 2016 was motivated by what Democrats had done previously back in the 1970s. From a NYT article:

But Republicans reminded anyone who would listen about the sins of the Democratic past, including an incident in which a Democratic governor, Jim Hunt, victorious in 1976, asked for the resignation of scores of employees from the previous Republican administration.

galen: I’m familiar with this from the perspective of gerrymandering. Once Democrats started losing congressional seats in the South in the 1990s, they sure as hell did as much gerrymandering as they could to hold on to their seats. Republicans returned the favor once they secured control.

natesilver (Nate Silver, editor in chief): Shouldn’t we talk about how Wisconsin’s state legislative maps are unbelievably gerrymandered? Otherwise, Democrats might have won control of the legislature too, right, Galen?

galen: Yes, Nate. Wisconsin is an extreme case when it comes to gerrymandering. The state legislature might not even have the votes to pass this kind of legislation if it used a more neutral map. In both 2012 and 2018, Republicans won a majority of the state Assembly seats with a minority of the votes. In fact, this fall Democrats in Wisconsin won 54 percent of the state Assembly popular vote but will only control 36 percent of the seats come January.

nrakich: And at least one court has found Wisconsin’s legislative districts unconstitutional.

One proposal that didn’t make it through committee was one to move the 2020 presidential primary so that it no longer coincides with Wisconsin’s annual spring election.

A conservative Wisconsin Supreme Court justice is up for re-election then, and the Democratic presidential primary is expected to be heavily contested, which generally means higher turnout for that party, so some conservative lawmakers hoped that moving the primary would negate any boost the liberal candidate might get in the judicial election.

natesilver: So … is that outrageous, necessarily? You’re going to have a highly contested Democratic primary, and probably not a highly contested Republican one (we’ll see, I guess). I don’t like the idea of having a general election on the same day as the primaries.

nrakich: It’s open to interpretation on whether you think it’s outrageous, but Wisconsin Republicans apparently didn’t have the votes for it. FWIW, it would have cost an extra $7 million to hold a standalone election for Wisconsin Supreme Court.

natesilver: That seems cheap! Like 1 buck for every person in Wisconsin? Sign me up.

geoffrey.skelley (Geoffrey Skelley, elections analyst): To answer Perry’s question, this sort of behavior is not unprecedented, nor is it one-sided in terms of which party does it. In Alabama in 1999, for instance, the Democratic-controlled legislature removed many powers from the lieutenant governor’s office because a Republican won the post for the first time in decades. It remains a weak office to this day.

nrakich: In my opinion, asking people to resign so that you can appoint your own staff like Hunt did in North Carolina is more reasonable than changing the partisan composition of the state elections board because you don’t like who the governor is. It’s also very different when a governor takes an action that might seem hyper-partisan than when a legislature actively strips powers away from the governor, which carries separation-of-powers concerns.

galen: Part of the reaction in Wisconsin I think has to do with the environment in which it’s taking place.

Scott Walker is a polarizing figure, and Democrats, nationally, saw unseating him as a big midterm victory, which then primes them for a big reaction to this. On top of that, because Wisconsin is so gerrymandered, people are doubtful that elections there result in majority rule. Plus the legislature and governor have implemented highly polarizing legislation over the past almost 8 years.

This is salt on an already gaping wound for Wisconsin Democrats.

natesilver: Yeah, both parties gerrymander. But I keep coming back to the fact that Democrats won the popular vote by a pretty big margin, but but we’re going to have a Republican-dominated Assembly.

galen: Also, if you want to understand how this happened … have we got a podcast episode for you!

perry: I think it’s worth considering that even if there is some Democratic precedent in the past, do we think Gov. Malloy of Connecticut or Gov. Brown of California would have cut the powers of the new governor if a Republican had been elected? I really, really doubt it.

For example, Maryland Democrats did not do this in 2010. I think part of the issue is right now, in the 2010s, it seems like one party is regularly pushing the envelope.

natesilver: I think the literature is pretty convincing that it’s asymmetric. Asymmetric doesn’t mean that Republicans push the boundaries 100 percent of the time and Democrats do it 0 percent of the time. Maybe it means the GOP does it 70 percent of the time and Democrats do it 30 percent.

nrakich: Certainly, in this century, it is asymmetric.

Given how much the parties have changed, I’m not sure it’s relevant to say, “Well, Democrats did it back in the 1970s.”

geoffrey.skelley: I think the point with historical examples, like the 1999 Alabama case, is that parties have long done things in the name of power. And currently, it’s the GOP that’s pursuing this course in multiple states where they lost executive power.

galen: Are there any repercussions for these kinds of power grabs, or can politicians just keep pushing the envelope? Can or do voters react negatively?

One of the issues with gerrymandering is that it prevents voters from counteracting it.

nrakich: Well, Galen, it’s a small sample size, but Democrats made big gains in the North Carolina legislature this year. They picked up six seats in the state Senate and 10 in the state House, breaking Republicans’ veto-proof supermajorities.

That’s certainly fewer than they would have in a non-gerrymandered map (Democratic candidates won 51 percent of all votes cast for the North Carolina state House), but considering the circumstances, that’s pretty darn impressive.

natesilver: You’d think there would be repercussions. After all, we’re coming off an election in which Democrats won 40 or 41 U.S. House seats and the popular vote by 8 to 9 percentage points. And they flipped a bunch of governorships, including in Wisconsin. So the things that bother me the most are the things that make it hard for the system to be responsive to these power grabs, meaning gerrymanders, and things that make it harder for people to vote.

galen: Can we rank every state in the country by how responsive its politics are to the will of the people? I would love to see that list.

nrakich: It’s worth noting that Democrats have sued to throw out the North Carolina legislative map. The case is likely to ultimately be decided by the state Supreme Court, where Democrats have a majority. So we could very well have a neutral North Carolina legislative map in 2020. It would be something if Democrats were able to take total control of North Carolina state government after everything that’s happened there since 2012.

perry: One question I had: Should lame-duck sessions exist?

Are lame-duck sessions inherently anti-democratic?

nrakich: I was going to ask that too, Perry!


perry: I hated senior week.

But I’m not fun.

Beach time? Why?

galen: When else are you going to make a ton of bad decisions with zero repercussions?

sarahf: I was going to ask why we aren’t seeing similar things at the national level … but maybe Congress has a better understanding of the associated political fallout.

nrakich: There doesn’t have to be a gap between when legislators are elected and when they assume office. For example, in Florida, legislators’ terms begin upon election!

Some governors take office with minimal delays too: In Alaska, newly elected Republican Gov. Mike Dunleavy has already been sworn in.

It seems like an easy solution to just move up legislators’ swearing-in dates to as early as possible after the certification of the election, essentially making lame-duck sessions impossible.

geoffrey.skelley: Well, at least with Congress, lame-duck sessions used to be longer than they are now — the new Congress didn’t begin until March 4. The 20th Amendment to the Constitution, ratified in 1935, shifted the start of future Congresses to Jan. 3, thereby reducing lame-duck periods by two months.

perry: Basically, at the national level, the GOP doesn’t have total power because of filibuster rules and the need in some cases for 60 votes in the Senate. But Trump is trying to jam the border wall through while the GOP still has control of House.

galen: And lame-duck lawmaking is certainly not a one-sided issue.

perry: But we all think lame ducks are inherently bad?

galen: I don’t know … I liked senior week.

natesilver: In the abstract, you could say, for instance, that the lame-duck session could only be used for emergency business. If a hurricane hits North Carolina and the new government isn’t in place yet, you need people in charge.

perry: I think these are emergencies for the Republicans. But I know what you are getting at.

nrakich: I think legislators should get their full two years to legislate, and governors should get their full four years to govern. So in that sense, under the current system, I don’t think they’re inherently bad. But I do think it would be better if those terms could just run from Election Day to Election Day.

sarahf: So the state legislature is supposed to vote Tuesday in Wisconsin on their proposals (although they haven’t voted yet). What happens? Do they pass it? And say they don’t, what should we be taking away from all this? That lame-duck sessions don’t honor the will of the people and open up opportunities for undemocratic power grabs?

galen: My guess is they pass at least a good portion of their plan. If they backtracked on this, it would be one of the first times since 2011 that the Republican trifecta backed off highly partisan legislation. This is not their first rodeo by a long shot. They got used to all the Capitol protesters like seven years ago.

perry: I think what I have learned is that what Republicans are doing has precedent, or newly elected officials have been stripped of power before. Democrats have done it, too.

But I don’t think this is a great method of honoring the views of the voters. And I still think that right now, the Republicans are doing this kind of stuff more. And I think we have to be worried that this kind of political hardball played by Republicans will be matched by Democrats. Just see my colleague Clare Malone’s piece on Democrats pushing to add more seats to the Supreme Court.

I am very worried that norm violations will lead to others and make politics even more divided and toxic. Yes, politicians love power. But there has to be a way to push for power while respecting some sense of broader democratic values.

geoffrey.skelley: If they don’t pass these power-limiting plans, they are still a close call and full of ideas that will hang around for others to consider in the future. And if one side is asymmetrically pursuing the limitation of powers just because the other side won, surely the other party will begin to consider similar options if they take control of the necessary levers of power.

Perry and I are on the same page.

nrakich: And a sensible page it is.

Nate Silver founded and was the editor in chief of FiveThirtyEight.

Perry Bacon Jr. was a senior writer for FiveThirtyEight.

Nathaniel Rakich is a senior editor and senior elections analyst at FiveThirtyEight.

Geoffrey Skelley is a senior elections analyst at FiveThirtyEight.

Galen Druke is FiveThirtyEight’s podcast producer and reporter.

Sarah Frostenson is FiveThirtyEight’s former politics editor.