Wisconsin and Michigan power grabs: Lame-duck lawmakers are threatening democracy itself

In Madison, Wisconsin, on Dec. 3, 2018.

The 2018 midterm elections ushered in a wave of Democratic officials throughout the country, both on the state and federal level. States like Michigan and Wisconsin provide the clearest evidence of this historic blue wave. However, Republicans in both states are attempting to use their lame-duck legislative sessions to limit the power and authority of incoming Democratic officials.

In Michigan, Republican lawmakers introduced bills to limit the power of the incoming governor, attorney general and secretary of state — all Democrats and all women. Similarly, Republican lawmakers in Wisconsin are trying to diminish the powers of their Democratic governor-elect and attorney general-elect as well as limit access to early voting.

These tactics are not new. In 2016, Republicans in the North Carolina legislature used a lame-duck session to pass a series of laws to curb the powers of the incoming Democratic governor.

These three examples are blatant and extreme forms of abuse via lame-duck sessions. However, they are not the only ways legislators can abuse the institutions of governance in the awkward limbo between the outgoing and incoming legislatures. For instance, after losing their House majority in the 2010 midterms, Democrats in Congress used the lame duck to pass major (and controversial) legislation, including the repeal of "don’t ask, don’t tell" and the ratification of the new START treaty.

Partisan lame-duck sessions betray democracy

Whether done by Republicans or Democrats, whether stripping incoming officials of power or passing controversial bills, the increasingly partisan use of lame-duck sessions is a clear violation of foundational democratic principles.

Democratic theorists have long argued that democracies derive legitimacy through procedural justice, that fair application of decision-making rules builds legitimacy by engendering trust, ensuring fairness, and minimizing uncertainty. This is a core argument made by researchers E. Allan Lind and Tom R. Tyler — that process, not just  outcomes, shapes attitudes and behavior. 

In a democratic system, decisions are considered legitimate if they embody the will of the people, which comes through citizen participation in electoral processes. Ultimately, representative democracy allows citizens to impact policy by choosing between competing candidates to defend their interests and by holding them accountable at the ballot box. It is this threat of electoral accountability that binds legislation to the will of the people.

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The use of lame-duck sessions to push through controversial policy proposals and to strip one’s opponents of power undermines this procedural legitimacy because it lacks democracy’s critical accountability mechanism. Legislators and executives who will no longer hold office once the new government convenes have clearly lost their democratic mandate, and thus cannot claim to embody the will of the people. Additionally, they can no longer be held accountable for their actions because, in all likelihood, they will not appear on the ballot again.

Thus, citizens lose their most fundamental check on government power, the ability to “throw the bastards out” when they fail to meet expectations. And the incoming elected officials can lose their ability to follow through on the promises they've made to voters.

Because they lack these critical elements of procedural justice, the proposals in Wisconsin and Michigan cannot be considered legitimate exercises of democratic authority.

We need to rebuild trust in our institutions 

Some argue that lame-duck sessions are inevitable as an institution prepares for its new members. In fact, so-called caretaker governments are quite common in multiparty parliamentary systems and often govern while coalition negotiations take place following an election. While these caretaker governments maintain daily governance, they are not authorized to make dramatic or controversial changes.

However, forming a government does not require an extensive lame-duck period in a system like ours. After an election, it is clear which party will take the reins of power and which will be left in the minority. Additionally, legislative and executive functions are divorced in our system, which further removes the need for a lame duck. Some states already skip these sessions some or all of the time. In Delaware, new legislators are seated as soon as the election results are certified. Thus, the lame duck is not only undemocratic; it is also unnecessary.

In a time of diminishing faith in democracy, we should reconsider the process of government formation, starting on the state level. Eliminating or at least greatly diminishing lame-duck sessions would be the most appropriate way to ensure democratic accountability, respect the will of the people, and rebuild trust in our institutions.

For the sake of democracy, it’s time to put the lame duck out of its misery.

Joseph F. Cozza is a Ph.D. student at the University of Texas-Austin Department of Government. Follow him on Twitter: @JoeFCozza

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This article originally appeared on USA TODAY: Wisconsin and Michigan power grabs: Lame-duck lawmakers are threatening democracy itself