Editor's Note: Lame-Duck Legislators Are No Longer Accountable to Voters

Jan 1, 2013

Dana Heupel
Credit WUIS/Illinois Issues
Gay marriage. Gambling expansion. State employee pension reform. Medical marijuana. Forcing some businesses to disclose tax breaks. Driving privileges for undocumented immigrants. Keeping open prisons and mental health and developmental centers. Implementing federal health care expansion.

Those and a host of other pressing issues make up the bricks in the wall that Illinois lawmakers and Gov. Pat Quinn are up against. Serious issues — difficult decisions — many of which drill to the very core beliefs of politicians and taxpayers, alike. Yet it is likely that many — if not most — of those tough choices will hinge on legislators who either no longer want to serve or whom the voters no longer want to represent them.

Lame ducks. Lawmakers who won’t be around after January 9, when a new two-year legislative session begins. Legislators who are no longer accountable to the voters back home and are free to vote their consciences — or to follow the commands of party leaders and special interests that can pay off campaign debts or find them jobs after their terms expire.

There are more of them than usual this year — at least 35 — primarily because of the changes in district boundaries that occur every 10 years, but also because of the Democrats’ smack-down of Republicans in last November’s elections. So Illinois Senate leaders have scheduled session days to begin January 2 and extend through the beginning of the new legislative session, while the House will convene on January 3 and follow the same schedule. (Since this was written, both the House and Senate have reduced the number of lame-duck session days. D.H.) During that period, the legislative leaders will most likely try to persuade those lame-duck members to cast controversial votes that many legislators who must face voters again wouldn’t touch.

Session days are also scheduled during that time because after January 1, legislation only needs a simple majority to pass and become effective immediately upon the governor’s signature. Between the previous June 1 through December 31, a three-fifths approval is necessary under the Constitution for bills to take effect before June 1 of the next year.

Lame-duck lawmaking is not a new phenomenon, and it’s not unique to Illinois. Two years ago, lame-duck legislators played key roles in approving the 67 percent increase in income taxes and in abolishing the death penalty and allowing civil unions. Congress’ 2010 lame duck session saw the extension of the Bush tax cuts. This year’s lame duck session in Washington, D.C., focused on the “fiscal cliff.” And Steven Spielberg’s current blockbuster, Lincoln, shows politicians plotting to pass a constitutional amendment abolishing slavery during a lame-duck congressional session near the end of the Civil War.

So it’s not new, and it’s not illegal. But is it a sterling model for how a representative democracy should work? Should the most important legislative decisions wait until a significant number of lawmakers are no longer accountable to the people who elected them?

“These people are no longer on board,” David Morrison, deputy director of the Illinois Campaign for Political Reform, told the Chicago Tribune. “They're not tied to their constituents. They’re unmoored.”

“Lame-duck sessions are when legislators (some of whom won't again face voters) can run riot,” Thomas Suddes of the Cleveland Plain Dealerwrote in a recent column. “They pass bills that belong in a wastebasket, and they kill bills they should pass.”

Yale law professor Bruce Ackerman wrote in the Washington Post in 2010, referring to Congress: “It is utterly undemocratic for repudiated representatives to legislate in the name of the American people. Worse, the prospect of a lame-duck session encourages sitting politicians to defer big issues till after Election Day and thereby avoid scrutiny by the voters.”

But Quinn, who made his bones as a government reformer, is all for doing the legislative heavy lifting during lame-duck sessions. “I really feel that all the legislators who are in the General Assembly right now have more work to do before their term is up,” he told the Tribune soon after the November election. “And we want to make sure the entire term is used in order to get big things done for the public, for the people.”

Maybe not surprising, though, from a man who desperately wants to deal with the state’s fiscal problems in whatever way is expedient. A crusader who shed his good-government mantle after his election and instead governs with one finger moistened to test the political winds and another pointed upward and inexplicably extended toward the constituencies that elected him.

Insiders at the Statehouse would likely scoff at any suggestion that lame-duck sessions might not be the best time to enact major legislation. That’s simply how the process works, they’d say. And they would be right. This is, after all, Illinois, where important votes are often made with little regard for or consultation with voters or stakeholders. Witness the practice known as “shell bills.” They are designed to skirt the constitutional provision that before a final vote, “a bill shall be read by title on three different days in each house.” Instead, important issues such as statewide electric deregulation or pension changes for new state employees were passed in one day with little last-minute input from anyone, especially those most affected. And it’s long been Statehouse lore that toward the end of a legislative session, House Speaker Michael Madigan and other legislative leaders will keep lawmakers in Springfield doing busywork so they won’t travel home and be influenced by the people they represent.

Granted, the pressure on the Illinois General Assembly and the U.S. Congress to deal with major issues is immense. Political gridlock has made passage of controversial legislation nearly impossible without resorting to chicanery. And bond rating houses and influential interest groups such as the Civic Committee of the Commercial Club of Chicago and others are pushing loudly for solutions to the state’s fiscal mess or to controversial social issues.

But it’s a shame — better yet, a sham — that legislative leaders, the governor and the special interests believe that the only way to make those major changes is through votes by legislators who don’t have to answer to the voters who elected them.

Illinois Issues, January 2013