Ducks in a Row


That hashtag has a certain connotation today. But back in the early 1900’s, when Twitter was still in beta testing, it meant something slightly different. A big topic of discussion then was the issue of “lame duck” politicians. I already littered the blogosphere with that topic under the post about the 22nd Amendment, but the issue has quite a lengthy history (and you may recall I prefer a purely “duckish” solution to the problem).

To revisit, a “lame duck” is a politician whose remaining days in office are precisely numbered, either because he or she has hit a term limit, or he or she lost the most recent election. I should add a footnote to that: the term has historically referred more to people who actually lost. But when Congress recently neutered an attempt to nominate a Supreme Court justice nearly a year before the end of that President’s term, I submit the definition of “lame duck” was effectively broadened – regardless of your position on that particular happenstance.

Prior to the ratification of the 20th Amendment in 1933, newly elected Presidents and Congresspeople couldn’t get started until the March following the election. Meanwhile, the old Congress and President would have a good three or four months to wreak havoc, or to do nothing – neither of which is a good return on our tax dollar. As an extreme example of the problems this can cause, when Abraham Lincoln was elected in 1960, he could do nothing for three months while seven states seceded from the Union as a prelude to the Civil War.

The timing problems were actually even worse than that for Congress; they were required to start their sessions in December, so the newly elected House of Representatives as an example could not begin their first session until thirteen months after they were elected. So they got one full-year session and one three-month session, with many Representatives being lame ducks during the latter. A Constitutional Amendment was the only way to solve this problem, but it took many tens of years and many tens of tries before one finally made it through. The final push took ten years on its own, led by Nebraska Senator George W. Norris through multiple sessions of Congress before its passage in 1932 and ratification in 1933.

The 20th Amendment begins thusly:

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Perhaps the most striking aspect of Section 1 is the use of “3d” instead of “3rd”. Which then made me wonder, when did we start using “3rd” instead of “3d”? From what I could gather in a quick Google search, use of the “3d” convention waned after the 19th century. Or is that 19h century? One can only imagine the passion and determination of aging “3d” supporters during its inevitable decline, imploring us all to respect tradition and gaining one final victory through its inclusion in a Constitutional Amendment. “3d”, meet immortality. But I digress. I’ll do my best to make sure it doesn’t happen a 2d time.

Section 2 of the 20th Amendment states:

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Combined, in addition to addressing lame duckery, Sections 1 and 2 ensure that a new Congress is available to deal with any ambiguities that arise in the Presidential election. More on that below…

Sections 3 and 4 take a sharp turn into Presidential succession:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Remember the 25th Amendment? That one has generally become the go-to resource on Presidential succession matters of late. But the 20th Amendment could become much more relevant depending on what happens in 2020. The current political climate, along with the emergence of multiple potential independent candidates, could lead to a situation where no one gets the requisite 270 electoral votes to win, in which case it would fall upon Congress to resolve the matter. This underscores how truly stuck we are in a two-party system, by the way. Even if an independent candidate were to gain equal ground with the Democratic and Republican candidates, no one would get enough electoral votes, and the matter of who should take office would be decided by Congressional partisan politics – which offers no discernible path to victory for an independent candidate. Which, in turn, sure seems to make independent candidates look like they’re doing something naughty in public rather than actually accomplishing anything. But that’ll likely be the subject of a 2020 post.

Sections 5 and 6 of the 20th Amendment are basically cleanup:

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

So what’s my biggest takeaway from all this? Well, for one thing, it makes me look at Mount Rushmore in an entirely different light. All four faces there are from Presidents who had unique challenges and/or contributions relevant to the idea of presidential succession. George Washington – perhaps out of nothing more than sheer exhaustion – set the two-term convention that didn’t become law until the ratification of the 22nd Amendment. Thomas Jefferson was consistently outspoken about the need for some form of term limits (including at the conclusion of his own second term). Abraham Lincoln was hamstrung by the faulty system that led to the 20th Amendment, and his assassination fed the confusion that wasn’t fully resolved until the ratification of the 25th Amendment. And Theodore Roosevelt actually ran for a third term, only to lose to Woodrow Wilson, four years after his first two terms – one must wonder if the 22nd Amendment would have been accelerated had that happened.

In my opinion, it’s no coincidence that presidential succession has been an important topic at the same time our most revered leaders have served. But it’s also about the times in which those leaders have served, and we may be in such times again in 2020.

Do you think they’ll ever get it right, Abe? I don’t know, Teddy, I just don’t know.

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