It’s Time To Make Government Shutdowns Impossible
There's a way that Congress and the President could make future government shutdowns impossible, but they probably won't do it.
With the government shutdown entering its thirty-third day, some in Washington are talking about changing the law to make shutdowns impossible going forward, a proposal that makes more sense the longer this ordeal goes on:
With the partial federal shutdown having entered its second month and no resolution in sight, a Democratic senator is introducing a bill that he says would prevent such crises in the future.
The name of the bill: the Stop STUPIDITY Act.
The measure, introduced Tuesday by Sen. Mark R. Warner (D-Va.), would automatically keep all of the federal government running in the case of a future funding standoff — with the exceptions of the legislative branch and the Executive Office of the President.
“The Stop STUPIDITY Act takes the aggressive but necessary step of forcing the president and Congress to do the jobs they were elected to do,” Warner said in a statement. “Workers, business owners and tax payers are currently paying the price of D.C. gridlock and my legislation will put an end to that.”
The full name of Warner’s measure is the “Stop Shutdowns Transferring Unnecessary Pain and Inflicting Damage in the Coming Years Act” — a moniker that, some astute Congress watchers pointed out, actually results in the acronym “Stop STUPIDITCY Act.”
The Washington Post’s Aaron Blake writes about Warner’s proposal, as well as another proposal from Kentucky Senator Rand Paul:
Hundreds of thousands of federal workers will soon go without their second paycheck this month, as the 32-day shutdown drags on with no end in sight. But if there’s a silver lining for them, it might be this: The messier this gets, the more momentum there could be for a mechanism to effectively outlaw future shutdowns.
Sen. Mark R. Warner (D-Va.) on Tuesday introduced a bill called the Stop STUPIDITY Act. In the event of a lapse in government funding, the act would reinstate funding levels from the previous fiscal year — except for Congress and the office of the president, which would not receive funding until they reached an agreement.
Warner’s Republican colleague Sen. Rand Paul (Ky.) reintroduced his own proposal last week. Rather than shut down the government in the absence of a budget, it would institute an across-the-board 1 percent funding cut for all agencies and would cut another 1 percent every 90 days that no agreement is reached.
Lawmakers introduce bills all the time, and there’s little reason to believe that either of these plans will pass or even earn a vote. But if there were ever an environment conducive to such a bill, this could be it.
One of the dirty little secrets of the shutdown is that it’s not even a fight Republicans particularly desired. In fact, the GOP-controlled Senate passed a regular government funding bill via unanimous voice vote last month, before President Trump changed his mind and insisted on money for a border wall. Republicans largely have stood behind Trump, but they seem to be tolerating him more than cheering his strategy.
It’s a strategy they could pay a price for. Polling shows that a majority of Americans blame the GOP and Trump for the shutdown. Republicans seem to be jammed between that political reality and their deathly aversion to angering the president. Senate Republicans could try to end the shutdown by passing a clean government funding bill, but doing so would come at a significant cost to the president’s political capital.
Democrats would probably support such a proposal, given that shutdowns tend to be a weapon used by Republicans. Democrats did force a brief shutdown last year, over the Deferred Action for Childhood Arrivals program, but the last big one came in 2013, when Republicans tried to defund Obamacare. The last lengthy shutdown before that came in the mid-1990s, when Republicans insisted that President Bill Clinton balance the budget with specific estimates.
None of these shutdowns really worked, which is another argument for taking the option off the table.
All of this brings to mind the fact that government shutdowns amid funding lapses are, in some sense, a relatively recent phenomenon. Prior to 1980, there were several occasions when the government fell short on passing a budget by the time required by law. During the Ford Administration, for example, there was funding lapse in 1976 that lasted 12 days. Under President Carter, there were a total of four funding lapses that lasted a total of 28 days over the course of four years. (Source) None of these lapses resulted in government shutdowns, though. Government workers continued to work and, as far as I have been able to determine continued to be paid, as did other Federal obligations. That changed in 1980 when President Carter asked his Justice Department for a legal opinion on this issue, which involved the interaction of two laws, the Budget Control Act of 1974 and the Anti-deficiency Act. The first law established the basic outlines of the budget and spending procedures that we have followed and made changes that were designed to address perceived abuses by the Nixon Administration when it came to allocating government spending. With some revisions unimportant to this discussion, this law continues to govern the budget process to this day. The second law, which has existed in one form or another since the late 19th Century, basically prohibits the Federal Government from spending money not specifically allocated. In that legal opinion, then-Attorney General Benjamin Civiletti determined that the two laws required that all Federal Government work must cease in the event of a shutdown and that no funds not specifically allocated could be paid, including salaries and payments to government contractors. In an updated opinion handed down later, Civiletti determined that government services deemed “essential” could continue, but workers covered under that category could not get paid until a funding bill was passed. (Sources here and here.)
If it wanted to, Congress could pass legislation that would essentially return us to the pre-1980 status quo by providing that, in the event of a failure to pass a spending bill by a set deadline, funding of the relevant government agencies would continue until the new budget was passed and put into effect. This would end entirely the idea of the distinction between “essential” and “non-essential” government functions, end the furloughs of Federal employees during these funding lapses, and guarantee that all Federal workers and contractors would continue to get paid as provided under the previously existing budget. This would end the absurdity of government shutdowns and would take away the ability of either party in Congress or the President to hold the government hostage over unrelated policy issues, as occurred in 2013 and as we’re seeing unfold today. The proposals from Senators Warner and Paul come close to this idea, but unfortunately, neither one of them is not likely to get very far. Perhaps once we get passed this current shutdown, though, Congress and the President will realize just how insane what we’re going through now actually is and take some action to make it less likely in the future.