This Congress Ends January 3, not 5

Dear Senator Reid:

Please consult your calendar and the Constitution. You have several times indicated that you will keep Congress in session until January 5 to work on an ambitious legislative agenda. Not to be too technical, but you cannot keep Congress in past noon on January 3.

Everyone understands your point. As majority leader, you are engaging in a tried and true tactic of making it difficult for the minority to run out the clock on your legislative priorities. And the threat of votes in the Christmas week or even just past New Year’s may raise the price of opposition.

But you are getting two dates mixed up. January 5 is the day that the incoming 112th Congress will first meet. January 3 at noon, however, is the day that the Constitution specifies that the term of the 111th Congress will end and when the term of the 112th Congress will begin.

The simplest way to cut through the confusion is to look directly at the text of the Twentieth Amendment to the Constitution. That amendment took effect after FDR’s first inauguration. It changed the dates of the beginning of the term for Congress and the president.  Prior to that amendment, the presidential term began on March 4 after an election year and ended four years later. Congress’s term also began on March 4.

The Twentieth Amendment not only changed the start and end dates for both the president and the Congress, it also specified that Congress would come into existence before the new president’s term began. Under this amendment, the current arrangement is that a new Congress begins on January 3 and a new president takes office January 20.

One reason for the change was to ensure that the newly elected Congress would count the Electoral College votes, possibly resolve disputed votes, or deal with a case where no candidate had a majority of the Electoral College. Under the old system, it was the lame-duck Congress that might have say over the counting of the electoral votes for the new president.

It only rarely occurs that Congress has any issue counting electoral votes. The real practical import of the change was to enshrine Congress as a more permanent institution that met early and regularly. And this starting point of Congress is where the confusion of dates comes in.

Under the old system before the Twentieth Amendment, the term of a new Congress began on March 4. But the original Constitution also specified that Congress had to meet at least once a year, and the default date for their first meeting was on the first Monday in December. Unless Congress specified by law or unless a president called Congress in for a special session (which was sometimes done), a president might not see a new Congress until December even though their term technically began in March. This system seems bizarre to us today, but the December meeting date was the norm for a century and a half.

When the Twentieth Amendment changed the starting date of the congressional term to January 3, it also set January 3 as the default date for Congress to first meet. Like before, Congress has the option of specifying a different meeting date by law, and for 2011, Congress has specified that it will begin on January 5 instead of January 3.

But that change in start date does not change the time when the term of the old Congress ends and the new one begins. That date is January 3 at noon.

And there is no fudging here. For some matters, Congress uses “legislative days” instead of calendar days, for example. But here the Constitution prevails over any congressional rules or procedures.

As majority leader, you may keep the 111th Congress in session until January 3 at noon. But at that time, the terms of office of all House members and one-third of the senators will expire, the 111th Congress will end, and the term of the 112th Congress will begin.

Sincerely,

John Fortier