by RICH CASSIDY on DECEMBER 27, 2010
Legislation doesn’t always work the way lawmakers think it will. (Some believers in the law of unintended consequences think legislation never works out the way legislators think it will.)
Sometimes, as members of the public, we should be grateful that it does not.
With few exceptions, the accomplishments of the 111th Congress were themselves such unintended consequences. This Congress got a lot done. Except for health care reform and the Dodd-Frank Wall Street regulatory legislation, almost every one of those accomplishments were products of the lame-duck session: the meetings of the House and Senate conducted after the mid-year election and before the Congress chosen at that election takes office.
Even those who do not like much of the new legislation will have to admit that very significant action was taken: “Don’t Ask, Don’t Tell” was repealed, the Bush Tax cuts were extended, the estate tax was revived, and the START nuclear arm reduction treaty with Russia was ratified. Five new circuit court of appeals judges, and fourteen new district court judges, were finally confirmed. These confirmations reduce, but no means eliminate, a record high vacancy rate on the federal bench.
And there were other, less noted, lame-duck session achievements.
Among the most important of these from a lawyer’s perspective was the adoption of legislation preserving Interest on Lawyer Trust Account (IOLTA) programs. IOLTA programs operate in all 50 states and provide critical funding for access to justice programs such as support for legal services programs for people with low incomes. The program devotes the income earned on funds held in common trust accounts where the amounts on deposit are too small, or are held for too short a period of time, to make it appropriate to credit the interest earned to the individual clients. IOLTA funds not only support civil justice programs for the poor, they also fund law-related education, such as high school mock trial competitions and summer civics training for teachers.
During the financial crisis in 2008, FDIC coverage was extended to IOLTA accounts, but that coverage was due to expire on December 31, 2010. Without it, lawyers would have been left in a dilemma: deposit client money in uninsured IOLTA accounts or in non-interest bearing, but insured accounts? It’s good news for access to justice that FDIC coverage has been extended.
The irony of all these accomplishments is that the apparent purpose of the 20thAmendment of the United States Constitution (ratified in 1993) was to curtail the power of lame-duck office holders. It reduced the time delay between election and the assumption of office by moving the up the beginning of congressional terms from March 4 to January 3. A. Reed Amar, America’s Constitution: A Biography p. 428-30 (Random House, Inc. 2005).
Given the fact that travel was more difficult and took more time when 20th Amendment was under consideration than today, and the fact that the Thanksgiving, Christmas and New Years’ Holidays all intervene between election day and the opening of a new congress, it is hard to imagine the framers of the amendment expected a lame-duck congress to meet for long, if at all.
But partisan grid-lock largely paralyzed the 111th Congress until the elections were history. It was only after the elections that members of the two parties (and the two independents in the Senate) were able to find any consensus.
At least this year, I’m glad the 20th Amendment did not preclude lame-duck legislation.
Rich