THE CASE AGAINST LYNN JENKINS CHAPTER 57 - H.R. 339, A LAME BILL THAT DOESN'T END LAME DUCK SESSIONS AND IGNORES THE CONSTITUTION

This is Lynn Jenkins, she doesn't represent us, and she doesn't understand the Constitution

Having invented a new Holocaust,

And been the first with it to win a war,

How they make haste to cry with fingers crossed,

King's X—no fair to use it any more!

                                               -Robert Frost

H.R. 339, the much ballyhooed Lynn Jenkins opus, the End the Lame Duck Act has been filed in the House.  Jenkins managed to get 26 other Members of Congress to sign on to this poorly crafted bit of propaganda.  It is as though these 27 Representatives are waving a flag proclaiming their utter ignorance of the Constitution.  This is not a good bill.

The bill starts off with a big exception. We are going to adjourn sine die if we are properly adjourned on election day. Even a blind elephant can stumble around that exception. So this is the end the Lame Duck Session Maybe Bill. Of course Jenkins didn't really mean to say that the lame duck session would be ended. Of course not, she wrote in even more exceptions.

The first exception shines a bright light on Jenkins' failure to understand the Constitution and the Congress as an institution. Her first formal exception deals with counting electors. Gee, that's great. Jenkins wants the lame duck Congress to cast votes in the archaic process of formally electing the President and Vice President.  The language of her bill says "(1) COUNTING OF ELECTORS- Nothing in subsection (a) shall be construed to prohibit the Congress from meeting to count electoral votes pursuant to section 15 of title 3, United States Code."  Read the full text at Thomas, the web site for the Library of Congress at: http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.339:.


Two problems with Lynn's Lame Bill. The first problem takes us back to the Twentieth Amendment to the Constitution. That was the change to the Constitution where the start of the new Congress was accelerated to January 3rd following the general election for a new Congress every two years and for President and Vice President every four years. Remember that date, January 3rd.

The second problem, again of Constitutional dimension, is that the counting of the votes of the electoral college are governed under the Twelfth Amendment to the Constitution . This Amendment does not allow the former Congress to have any authority in the counting of the votes of the electors. What is really pathetic about this section of Jenkins' opus is that she correctly references the federal statute codifying the appropriate provision of the Twelfth Amendment, 3 U.S.C. § 15.  That law begins: 

"Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer."

If the new Congress starts on January 3rd, as the Twentieth Amendment says it does, and the Congress meets on January 6th to perform their roll in counting the votes of the electors of the Electoral College, then H.R. 339 doesn't make any sense.  H.R. 339 doesn't make any sense.  You'd think a person claiming to be a Certified Public Accountant would be good enough at math to know that 6 follows 3. 

Which goes to show that you can read the Constitution on the floor of the House but you can't get Members to understand it. The new Congress, not the former, counts the votes of the electors. Jenkins just gets it wrong, as usual.

Now when Jenkins says the Congress is to adjourn sine die she didn't really mean it. She meant that it would adjourn for good if and only if the:

the Speaker of the House of Representatives and the majority leader of the Senate, or their respective designees, acting jointly and with the written agreement of the minority leader of the House and the minority leader of the Senate, may notify the Members of the House and Senate, respectively, to reassemble if each determines that it is in the interest of the United States to do so.

So if those in the driver's seat just got tossed out, then maybe they'd see it in the nation's interest to keep legislating up to the bitter end. That way they can get everything done they want to get done.

Of course Jenkins wouldn't want the government to have any money problems while the Congress is dormant. That's why she provides for AUTOMATIC CONTINUING APPROPRIATIONS in her bill. This section seems to undercut the reasoning for not having lame duck sessions. Consider that the electorate, We the People, may be fed up with the spending habits of a given Congress and vote to throw the rascals out. What good is it to have thrown out the rascals only to have their spending policies put on automatic pilot?

H.R. 339 reminds me of Robert Frost's poem Kings X. Jenkins' crosses her fingers and cries "Kings X" only we can end the lame duck session when and if we want to end the lame duck session. And the money keeps getting spent on automatic pilot. "King's X, only kidding, didn't really mean it" is what Jenkins seems to be saying. HR. 339 is a really bad bill.

THE CASE AGAINST LYNN JENKINS CHAPTER 54 - HER BEST IDEA IS THE LAST THING SHE HEARD

This is Lynn Jenkins, she does not represent us

Lynn Jenkins isn't a very good student of the institutions of Congress, in general, nor of the House of Representatives in particular, and that goes double for the Constitution. She recently demonstrated her lack of acuity in understanding the historical perspective upon which the Twentieth Amendment to the United States Congress was made.

The Google is such a wonderful thing. I am amazed that more politicians don't use it to find factual footing before inserting their proverbial foot into their endlessly propaganda spewing mouth. I am really amazed that Lynn Jenkins doesn't use the Google before saying silly things.

In a recent Tweet Jenkins said she plans to introduce legislation that will outlaw lame duck sessions of the Congress. Gosh, Jenkins doesn't know much about the Constitution. You see the dates of the terms of the Congress are not set in statute. They are set in the Constitution. Article I §4 originally read:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Yes that is the way the verb "to choose" was conjugated by the founders.  I can't wait for the debate on original intent to hit America's grammar books!

The underlined portion of the original language was redacted when the Twentieth Amendment to the Constitution was ratified in 1933. The pertinent part of that Amendment reads: "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."

Jenkins doesn't appear to understand why the Twentieth Amendment changed the time for beginning a session of Congress. She should really learn how to use the Google. But then you can lead certain Members of Congress to facts but you can't get them to engage in critical thinking.

An excellent thumbnail of the whys and how comes behind adoption of the Twentieth Amendment was written by Mary Cornelia Aldis Porter and published by Answers.Com in a piece apparently underwritten by West Law. These are all good sources which Jenkins should start using. You can read it at: http://www.answers.com/topic/amendment-xx-to-the-u-s-constitution.

Ms. Porter explains that the "Norris Lame Duck" amendment was adopted because it was no longer necessary to have an extra long period of time for newly elected members to travel from their home districts to Washington, D.C. Development of railroads substantially shortened travel time.

Prior to rail travel being available it took weeks, if not months, for the new members to reach the nation's capitol. After rail travel was available the Members of Congress who were not re-elected tended to serve out their terms engaging in obstructionist activities and filibusters. Oddly enough, this is what Lynn Jenkins and the Party of No did throughout the majority of the 111th Congress.

Congress could not pass a law mandating the change to the start of Congress because of Article I §4 of the Constitution. Those in the first session of the 72nd Congress realized this and the Twentieth Amendment passed each chamber of that Congress by a ⅔ majority. It took less than a year for the States to ratify the Twentieth Amendment.

Jenkins would incorrectly have us believe that the Twentieth Amendment passed so that defeated majorities could not pass last minute legislation which in-coming majorities oppose. As usual, Jenkins gets it completely backwards. Prior to passage of the Twentieth Amendment lame duck sessions stalled the people's business. The 111th Congress' lame duck session advanced the people's business.

The Twentieth Amendment is often called the "Norris Lame Duck Amendment" after Nebraskan George William Norris who served five terms in the House as a Republican, four terms in the Senate as a Republican, and a final Senate term as an Independent. Norris was a Progressive, what we now call a Teddy Roosevelt Republican. He also was a proponent of abolishing the electoral college in favor of direct voting for President by the people. Norris led the efforts at bringing electricity to rural America with the REA. George William Norris was one of the great Americans profiled by John F. Kennedy in the book Profiles in Courage.

A statue of Senator George Norris in McCook, Ne.

Lynn Jenkins' knee jerk Tweet was inspired by a Washington Post article which cites John Copeland Nagle, a University of Notre Dame law professor as saying the activity of the 111th's lame duck session is exactly what the Twentieth Amendment was meant to prevent. Nagle gets it wrong, and Jenkins can do better than rely on the Washington Post for inspiration on new bills to be introduced. See, http://www.washingtonpost.com/wp-dyn/content/article/2010/12/17/AR2010121703572.html.

In a classic case of mixing his applesauce with his chicken manure Nagle appears to be fantasizing that the Twentieth Amendment intended to truncate the role of the Legislative Branch of the American Government in much the way a vote of "no confidence" causes a collapse of  government in the British Parliamentary way of governing. Nagle is considered an expert because his theories are published in a law review journal, See, "A Twentieth Amendment Parable." New York University Law Review 72 (May). Of course, it is possible that Nagle has been taken out of context, that seems to happen all too frequently these days.

Suggesting that the Congress should stand down after an election is a dangerous interpretation. It is inconceivable to say that the Legislative Branch should be inactive from November until January following each Congressional election.

The Washington Post article, by David Fahrenthold seems to be weak on research. It would not have taken a Herculean effort to get a better historical perspective by Farenthold. An article in the Atlantic by Garrett Epps published July 23, 2010 speaks directly to the sort of danger that could come from Nagle's interpretation as reported by Farenthold and which Lynn Jenkins (whose best idea appears to be the last thing she heard) picked up. Epps is also a law professor. He teaches at the University of Maryland and once worked as a reporter for the Washington Post.

Epps argues that "There's no way to ban lame-duck sessions altogether, and we shouldn't. What if Pearl Harbor had happened on December 7, 1940, instead of 1941? Should the government have to wait a month to declare war on Japan? In a genuine crisis, even a lame duck impeachment might be proper. (Draw your own conclusions about Clinton's case.)" Bill Clinton was impeached in a lame duck session, and John Boehner voted for that impeachment even though the will of the American electorate had spoken. See, http://www.theatlantic.com/national/archive/2010/07/its-not-dead-its-only-lame-john-boehner-and-the-20th-amendment/60404/.

I can't wait to read the bill Lynn Jenkins plans to introduce in Congress banning lame duck sessions. With bated breath I will linger for her to explain how she can magically transform the law of the land to do by statute what the 72nd Congress, a true statesman - Senator George William Norris, and everyone else with half a brain understands.  THE CONSTITUTION CHANGES BY AMENDMENT NOT BY STATUTE. 

Of course if John Boehner, Lynn Jenkins, and the Party of No want to adjourn the Congress Sine Die after the Republicans are soundly thrashed in the 2012 elections, or move to make the Minority Leader the interim Speaker of the House for the balance of their term, then they can give existential import to this confused thinking about how sessions of Congress ought to conclude. In the meantime I will just enjoy this little holiday gift from Jenkins.