As anyone at TAP can tell you, I'm prone to long, angry rants against various figures and groups in 19th-century American history. Invariably, one of my targets is the original Progressive movement of the early 20th century. For all the good work they did to improve life for workers and their families, it's also true that they had a lot of misguided ideas about how American democracy should operate. One of them, as Bruce Ackerman approvingly notes in The Washington Post, is the notion that a midterm election heralds the end of that Congress' democratic legitimacy:
This emergency rationale continues to be valid: If terrorists attack after Election Day, it's appropriate for a lame-duck session to consider the need for emergency legislation.
But there's no need for a lame-duck Congress to meet when it comes to less-pressing matters. Here the old Progressive reasons motivating the 20th Amendment still apply with full force. 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.
If Congress began and ended on the week after a midterm election, then I'd be open to the idea that there is something illegitimate about Congress carrying on after voters have made their decision for the next year. As it stands, I'm unconvinced; Congress is elected to serve a full term, which includes the months following an election. That Congress can choose not to work after the elections, but there's nothing illegitimate about taking the opposite approach, for the simple reason that the election of a new Congress doesn't invalidate the democratic mandate of a current Congress. As far as I can tell, the lame-duck Congress could pursue a full agenda, and it wouldn't go against the democratic principles of this country.
That said, it would be a little awkward.
-- Jamelle Bouie