Charles Krauthammer today waxes indignant at the prospect that Democrats might pass legislation in a post-election session:
The only thing holding the Democrats back would be shame, a Washington commodity in chronically short supply. To pass in a lame-duck session major legislation so unpopular that Democrats had no chance of passing it in regular session -- after major Democratic losses signifying a withdrawal of the mandate implicitly granted in 2008 -- would be an egregious violation of elementary democratic norms.
Perhaps shame will constrain the Democrats. But that is not to be counted on.
Whenever I find myself sympathizing with the party I normally vote for on a process question, I try to imagine how I'd feel were the circumstances exactly reversed. I wish Krauthammer would try this. In his case, he doesn't have to imagine. Here he is speaking on Fox News in December of 2008, when President Bush flexed his lame duck muscles:
Well, this is the most active and important lame duck presidency in American history. Huge interventions in the markets, the signing of an agreement with Iraq of tremendous importance, the status of forces agreement, and now the intervention on the issue of the bailout.
I mean, this is a duck that roared, that people will remember historically.
For all the ridicule that the president has incurred from Barney Frank and others about his lack of leadership, he's leading here. And what he's doing on the auto issue is he's trying to enforce, essentially, a bankruptcy procedure of sorts.
A different tune, wouldn't you say?
As for myself, I'm honestly undecided at the moment. I believe in accountable majoritarianism. But this cuts both ways. Minority Republicans have pursued a scorched-earth policy of filibustering everything, even uncontroversial measures and nominations, in order to both thwart the majority will and to run out the clock on the majority's agenda. These practices violate both democratic norms and the traditional norms of the Senate, though of course Krauthammer raises no objection to that. You might defend a lame duck session as a rectification of that: Democrats would be squeezing in time for bills that were squeezed off the calendar due to counter-majoritarian extreme delay tactics. The counter to that is that this wouldn't justify passing bills that Democrats wouldn't be willing to pass even with unlimited calendar time.
The counter to that is, the new reality is that the rules are the rules and if one party pushes its legal advantage to the limit, the other party can respond in kind. If a lame duck session allows democrats to pass legislation they could have passed with a simply majority before the election, then it's a vindication of democratic norms rather than a violation. I think that's the most persuasive argument to me, but I may revise my view.