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Lame Duck Intensity A Term Limits Byproduct?

By Zachary Gorchow
Posted: December 18, 2018 2:37 PM

It is possible that of the 950 or so public acts that will be signed into law during the 2017-18 term, about one-third of them will have cleared the Legislature during the final seven weeks of the two-year session, also known as the lame-duck session.

That's right – 33 percent of the laws for the term crammed into 7 percent of the term.

It is a phenomenon that has triggered outrage among Democrats with majority Republicans looking to move as much as possible as their eight-year hold on the governor's office comes to an end in January.

Republicans retort that the Legislature is in session, thus it should be working. And lame duck has historically produced some notable bipartisan legislation that all sides have cheered. The energy legislation of the 2016 lame-duck session, for example. There was the phaseout of the industrial portion of the personal property tax in 2014. The bills setting up an authority to run the Cobo Center passed in lame duck 2008.

But the escalating Democratic anger this year owes to many factors. Part of it is the volume. Part of it is the tactic of advancing legislation, much of which didn't even exist prior to the election, after the election. And a big part of it is the nature of the legislation, some of which would curb the powers of the incoming Democratic elected officials. Such maneuvers were not attempted in prior lame ducks.

In the Senate, 37 of the 38 members as a result of term limits will never again face the voters for the seats they now hold. In the House, 67 of the 110 members will never again face voters for the seats they now hold, again as the result of term limits.

In the lame ducks of yore, lame duck was a lot less lame. Sure, there were the dozen or so members who had opted not to run again or lost re-election. But most of the members by far would have to face the voters again, assuming they decided to run again. Considerable time would have elapsed since any controversial votes, yes, but they could not vote with impunity.

So, I decided to look back at the history of the lame-duck session in Michigan since the first full-time legislative session in the 1969-70 term. During the part-time legislative era, there was no regular lame-duck session because the Legislature adjourned for the term many months before the election. There could be a special session after the election, but only on specific items and it was not a regular event.

The number of public acts signed during the lame-duck period offer a pretty clear trend.

The first year that jumps out is 1992. In the first 12 lame-duck sessions, from 1972-92, six of them saw less than 100 acts. Eleven of the 12 lame-duck sessions since then saw more than 150.

And what happened in 1992?

Voters passed the term limits constitutional amendment – three two-year terms in the House and four two-year terms in the Senate. The first four lame ducks following the adoption of term limits saw more public acts out of lame duck, but nothing wildly different than what came in the pre-term limits era. During those years, term limits was still phasing in, with veteran lawmakers still dominating at least one house of the Legislature.

The second year that jumps out is 2004.

That is the first lame-duck session in the pure term limits era, with virtually none of the veteran lawmakers of yesteryear in the fold.

Lame-duck sessions from 1972-2002 saw an average of 138 public acts. Those from 2004-16, when the full churn of term limits was in effect, saw an average of 234. If the state winds up with 300 public acts in the 2018 edition of lame duck as seems probable, the average from 2004-18 will bump up to 242.

There's a lot of anger at lame duck right now, but the numbers suggest it's a symptom of something bigger – large numbers of legislators with pet bills they desperately want passed before they return to private life and no worries about having to answer for those bills and votes.

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