Today, Explained - Abolish the lame-duck period?

Episode Date: January 19, 2021

America’s two-month lame-duck period gave supporters of the outgoing president ample time to plan a violent uprising. Vox’s Ian Millhiser argues the long transition needs to end. Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Visit connectsontario.ca. You ever wonder why they call it the lame duck? Apparently, it used to be an investment term. Ian Millhiser knows why. So, yeah, it's a term from the 18th century. And a lame duck used to refer to an investor who had defaulted on their debts. And so like the idea was because they have defaulted on their debts, their ability to remain in the market was limited and their powers were diminished. And then that term came to be applied to politicians who were also on the way out. Short-timer syndrome. Yeah.

Ian usually writes about the Supreme Court for Vox, but lately he's been looking at the lame duck sessions presidents get and wondering whether it's high time the United States just do away with them. Yeah. So, I mean, my beat broadly focuses on legal policy and on the Constitution. And the U.S. Constitution is very bizarre in how it handles transitions of power. So two months ago, the American people went to the polls and they said fairly emphatically, we do not want Donald Trump to be president anymore. And yet here we are more than two months after the election and Donald Trump is still president. And it doesn't have to be that way. You know, provided that we had the votes to amend the Constitution, it would be very easy to have a much shorter transition period. But as you say, it's in the Constitution. This is how it's worked from the jump. And this is how the founders envisioned the country working. Why change it? Let's talk about what

the founders envisioned. The way that a presidential election was conducted close to the founding of the country is that people would have to travel wherever the election was being held. And that itself could be an ordeal if you lived many miles from your county seat. The ballots would be gathered in one place. They'd be counted. But there wasn't telephones. There wasn't even telegraphs. So the only way to get word of how many people in your community voted for who was to send someone probably by horse and buggy to a central location to tell them,

hey, like, you know, we had this election and 800 people voted for George Washington. So people would have to travel, you know, by horse and buggy, often through swamps as the South especially wasn't very developed at this point in time. And then once the state knew who had won the election in that state, they'd have to notify the presidential electors. And so we would have to travel to the presidential electors, often across swamps by horse and buggy. And then the electors would have to meet and then Congress would have to meet. And congress would have to meet and all of this just took a lot of time when you didn't have any way to communicate quickly when

you were traveling on horseback and when you didn't in many parts of the country have like good reliable roads so this nation that i'm describing right now, that doesn't look like what the United States looks like right now. Like, we don't need this big, long period that exists to accommodate the fact that it used to take a really long time to conduct an election. can't wait. Let's talk about what the presidential transition in this lame duck period looks like some, you know, 250 years later in 2021. Right. How has this transition gone from, let's say, November 7th, when the major media networks and much of the country, the majority of the country realized Donald Trump had lost the election? So this has been an unusually active lame duck period. So it started really the night of the election with Donald Trump falsely claiming

that the election was stolen from him. From all of us, from me, from you, from our country. This was a fraudulent election. We've had a rush of corrupt pardons. With just four weeks left in his presidency, President Trump late tonight granted 15 pardons and five commutations. Among them, full and unconditional pardons for two congressmen who had been convicted on corruption charges and forced to resign. We've had a major stimulus bill. A standoff between President Trump and U.S. lawmakers has ended with word he has finally signed a U.S. COVID relief and government funding bill.

And then we had an insurrection. And all of this was happening under the auspices of a defeated president and under the auspices of a Senate majority leader who we now know is about to become the Senate minority leader. OK, so that was the condensed version. But since this particular lame duck period is the reason you're arguing, you know, the country reconsider the lame duck period altogether, you want to maybe break it down a bit more? Yeah. So, I mean, election night was basically election week this year because it took so long to count the ballots.

And so people probably remember there was a while early in election night where Donald Trump looked like he was performing very well because a lot of his ballots were counted before the mail-in ballots that overwhelmingly favored Biden. And so if you just looked at the ballots that had already been counted on election night, you might have come away with the misimpression that Donald Trump was winning. And Trump went on TV and decided to feed that misimpression by falsely declaring himself to be the victor. Because of the lame duck period, he then had more than two months to feed this myth that the election was somehow stolen from him. And I think that plays a big role in why we saw the insurrection recently, because it was just two months of this unfiltered propaganda. Once Trump seemed to accept that he probably wasn't going to stay in office much longer, he then started doling out favors to his cronies and specifically doling out pardons to people like Michael Flynn, his former national security advisor,

or George Papadopoulos, his former campaign manager. And then we had a big fight over two really important bills. One was an almost $1 trillion stimulus package. The other was the annual legislation that basically authorizes the entire military budget for the next year. And you'll recall Trump vetoed the defense authorization bill and that veto had to be overridden. He threatened to veto the stimulus bill at the very last moment. And Republicans who had been defeated in the election got to play an outsized role in deciding what would be in those bills,

because, of course, they still had a Republican president, even though he had been defeated. And so you had major legislation being shaped by people who had been voted out of office. And then you had the insurrection. And it wasn't just that Donald Trump had spent two months repeating a lie that fueled this insurrection. It was that the participants in that election had two months to plan the thing. And I don't know if that insurrection would have happened if the lame duck period hadn't given them a huge amount of time to plan for it. And so this has been a particularly disastrous lame duck period. And a lot of these disasters, I think, could have been averted if it wasn't for the fact

that this thing is so long. I mean, we can assume that the insurrection wasn't the founders' intention, but they did build pardons into the Constitution. They did build the ability for the president to veto legislation into the Constitution. How much of what the outgoing president has done in the past few months is in total violation of, let's say, you know, the founder's intent? And how much of it is just par for the course on some level. I mean, presidential pardons certainly aren't a new thing. Right. I mean, well, I want to state out front nothing that Donald Trump has done, at least none of the things that he's done in exercising his official powers as president is unconstitutional. The problem is the Constitution. You know, the problem is that the Constitution allows a defeated president to continue to

wield power for so long. And so, yes, he does have the power to pardon. That is in the Constitution. The problem isn't that it is unconstitutional for the president to exercise presidential powers after they're defeated. The problem is that the Constitution lets the president exercise these powers. And as bad as the Trump transition has been, this problem of presidents using their power in very shady ways after they are supposed to leave office is not a new problem. Support for Today Explained comes from Ramp.

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cards issued by Sutton Bank, member FDIC, terms and conditions apply. Ian, I think, you know, the mistakes of the outgoing president in his lame duck period are pretty fresh on everyone's mind. But you wrote an article up on the website Vox.com that points to a few examples throughout history. How many you got? Yeah. So, I mean, before this disastrous transition that we're now finally coming to the end of, I think there were three previous transitions that really just ended catastrophically. What's the worst? So the worst transition in American

presidential history is the transition from James Buchanan to Abraham Lincoln. This is how the Civil War happened. That's pretty bad. Yeah, it was bad. So after Lincoln was elected, Lincoln was from the newly formed Republican Party, which at the time was the closest thing that America had to a racial justice party. And the southern slaveholding states didn't like that very much. And so after Lincoln's election, but before his inauguration, seven states seceded while a politically paralyzed Buchanan presided. That was made worse by the fact that Buchanan was

pro-slavery. He gave an address to Congress while this was all going on, where he said, basically, look, I can't do anything about these seceding states. I can't even secure, use the military to secure the U.S. military forts in the South. And so what happened was that the South got this entire lame duck period. And it's worth noting that back then the lame duck period was longer. It went until March. The South got this long lame duck period where they got to set up their government, where Southern militias actually invaded many of these U.S. military forts and seized weapons that would later be used to fight a civil war against the North. The ensuing civil war would become known as Buchanan's War. I don't think that the Civil War could have been avoided.

But if Lincoln had come into office much sooner, he would have potentially been able to secure those forts. He could have begun the Civil War more quickly and prevented the South from consolidating its government. And the war wouldn't necessarily have been as bloody. OK, so a presidential lame duck that started a civil war is probably hard to beat, but you still flagged a couple more examples. Yeah. I mean, like having started with the Civil War,

I feel like my next example is going to be a bit of an anticlimax. So the 1892 election happens. Grover Cleveland defeats Benjamin Harrison. Benjamin Harrison was not happy that he was defeated. He had some economic disagreements with Cleveland. And so Republican newspapers after Cleveland won just started spreading the idea that the markets are going to collapse. Everyone's investments are going to dry up. Cleveland's economic policies are going to destroy everything.

You know, boo scary tariff. And a lot of investors listened to these Republican newspapers. And there was a panic. The market started collapsing. At one point, J.P. Morgan, the banking titan, went to the lame duck President Harrison and said, You've got to do something. Like, you've got to reassure people because we're going into a depression. And Harrison refused to do anything. His Treasury secretary said explicitly, look,

Our job is just to keep there from being a catastrophe until the Cleveland administration comes in. Then it's their problem. And his treasury sector actually spent his last several days in office sitting for his official portrait while the markets were collapsing. So the result was that there was a depression. I don't know if it could have been avoided if Harrison had bothered to do his job in that period. But it certainly didn't help. So we've got a civil war and a huge economic downturn. What else rates? Well, we got the Great Depression. Oh, an even bigger economic downturn.

Even bigger depression. Yeah. So this was, of course, the transition from Hoover to Roosevelt. And Hoover lost in a landslide, largely because people were not happy with his listless response to the Depression. Roosevelt campaigned on what at the time was completely unprecedented. I mean, the type of active government, the regulation, the like the the kind of big federal programs that Roosevelt promised in the New Deal were just unprecedented in this period. They were viewed as illegitimate by many of the elites in American society. And one person who viewed them as illegitimate was Herbert Hoover. And so rather than trying to, you know, spending that lame duck period mitigating the depression, Hoover spent it trying to convince Roosevelt to

embrace austerity and to abandon the New Deal. It didn't work, but it delayed our ability to respond to the Great Depression. And it's worth on, I think it was so obvious to the country that this long lame duck period that we had back then was untenable, that the 20th Amendment was ratified. It was actually the 20th Amendment that shortened the lame duck period to January. The 20th Amendment, not to be forgotten here, we have as a country come together before to say this lame duck period is problematic. And yet it has continued to be problematic since then. Yeah. I mean, I think that there's several problems that are inherent in any kind of lame duck period. One is just that it's anti-democratic.

You know, again, Donald Trump was thrown out of office. The American people said, we do not want this guy to be in charge. So why is he still wielding power? The second problem is that when you've been voted out of office and you know you don't have to face the voters again, there's no accountability mechanism. And so you tend to see things like corrupt pardons. You know, you know, it can be a time where presidents can push unpopular policies because what do they have to lose if they've already been thrown out of office? And then there's another problem, which is that other countries don't know how to conduct diplomacy necessarily with with a lame duck president. In the early 1980s, two senators proposed shortening the lame duck periods that the presidency would turn over on November 20. Senator Claiborne Pell from Rhode Island

was one of the sponsors of this amendment. And one of the reasons that he gave was he pointed to the Iran hostage crisis in the late 70s and the early 80s. We continue to face a grave situation in Iran where our embassy has been seized and more than 60 American citizens continue to be held as hostages. While this was going on, President Carter was defeated. And the problem was that Carter couldn't effectively negotiate with the Iranians to free these hostages because Carter was on his way out. And like Iran didn't even have any way of knowing whether they could trust Carter's successor to keep a deal that they struck with Carter. And Reagan couldn't negotiate with the Iranians because Reagan wasn't president yet.

So he wasn't authorized to speak on behalf of the United States. So you had this period where there was a foreign policy crisis going on and there was no one person who was really empowered to speak on behalf of this country. Day one of Ronald Reagan's presidency and day one of freedom for 52 Americans. Though thousands of miles apart, these two historic events moved almost on parallel tracks today. The new president had not been in office an hour when the former hostages became free men and women again. And so one of the arguments that Senator Powell raised was, look, we just can't have that for

the sake of our own national security. Other nations need to know who to talk to if they want to speak to someone who speaks on behalf of the United States. How do other countries do this? Most of our peer nations have much quicker transitions, partially because they have constitutions that weren't written in the horse and buggy era. So let's start by talking about our neighbor to the north. Canada last had a transition of power where power shifted from one party to another in 2015. And from the day that Justin Trudeau's Liberal Party won that election

until the day that Justin Trudeau was sworn in was a little over two weeks for them to get from their election to the completion of the transition period. And that's actually fairly long compared to other countries. India took 10 days for its transfer of power the last time they had a transfer from one party to another. Japan also took 10. France, when Emmanuel Macron was elected president, he became president seven days later. And Britain, of the nations I've looked at, has done this the fastest. Britain, when the Tories beat the incumbent Labour government in 2010, that's the last time that there was a transfer of partisan power in Great Britain. David Cameron was sworn in as prime minister five days after the election.

So, you know, modern democracies don't find it difficult to do quick transitions. I don't think that we could do our transition instantaneously. I mean, there's still some time necessary to count the votes and to certify the elections. And that, you know, especially in a decentralized system where you have 50 different states all with their own process, maybe that takes two weeks. I mean, maybe we need a full two weeks. Maybe we can't do it as fast as England does it or as fast as India does it. But there's no reason why we need to spend two and a half months on this.

You know, we have known for sure that Joe Biden was the president-elect of the United States for more than two months now. You make a compelling case, Ian, but thinking about all the things on president-elect Biden's agenda, is there any momentum or, you know, will for abolishing the lame duck? Well, I mean, I think realistically, there's a lot of things that are higher on the priority list right now. The Senate has to confirm Biden's cabinet. Biden just proposed a nearly two trillion dollar stimulus bill. There's an impeachment trial coming up. So like there are a lot of items on the list. And there also isn't going to be another presidential transition for at least another four years. So we've got time to deal with this.

But I hope that we make the choice to fix this problem. It's very hard to amend the Constitution, but I don't see a reason why either party should oppose this. You know, Democrats, they've just seen what can go wrong if you have a long transition. And Republicans, like they have no way of knowing that they would be hurt by it. They could be helped by it. I mean, if they push through an amendment right now that shortens the transition period, the biggest loser out of that amendment is going to be Joe Biden because it's going to

cut two months off of his term. Maybe that's enough for Republicans to say that, you know, we like that enough that that we'll do the right thing here. So, you know, I don't know that there is yet been a movement to get rid of this long lame duck period, but we have seen how it can go disastrously wrong. And I hope that a movement like that forms. So there's no need to spend this long waiting for a new president to be sworn in ever again. You can read Ian's piece about the lame duck and why he thinks it's time to shorten it even further over at Vox.com. I'm Sean Rottmisfurum. It's Today Explained. Thank you.