Politics

The Shutdown to End All Shutdowns

The government doesn’t have to come to a halt every time Congress and the president can’t agree on funding it. Now might be the time for a big fix.

Photo illustration by Slate. Photos by Getty Images Plus.

As we enter the 20th day of federal workers being unable to go to their jobs, contractors being unable to get paid, and those reliant on federal services being unable to access them, all because the president is unyielding in his demand that a physical barrier be constructed on the southern border, it is worth considering: Isn’t there a better way?

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Of course there is. Various options exist for eliminating government shutdowns permanently, some of which have been kicked around for years. But there are reasons why our government has not adopted a more hostage-proof protocol for itself.

This government shutdown marks the third, and by far the lengthiest, funding gap of the past year. The shortest occurred in February, when Sen. Rand Paul had a conniption fit on the Senate floor during a funding deadline, albeit one that was over by the time most federal workers woke up. Let’s forget that one. The “weekend shutdown” that preceded came when Democrats refused to support a funding bill without a path forward to protect Dreamers from deportation. The previous gap before that came in 2013, when a hard-right faction in Congress sought to eliminate funding for the Affordable Care Act.

In the cases of the current shutdown, the “weekend shutdown,” and the 2013 shutdown, the pattern has been the same: An actor or bloc of actors has made a promise to its base that it cannot obtain. As a show of theatrics, it resists funding the government in order to show the base that it is willing to “fight.” And throughout all of these shutdowns, the group left feeling the pain is the millions of people employed by, on contract with, or reliant on the federal government. Shutdowns are disruptive to the economy, and the very mechanics of shutting down and reopening the government can run into the billions of dollars.

If you look at the events that led to the current shutdown, it’s quite clear who’s at fault. When the White House and congressional leaders couldn’t reach a full spending agreement before the deadline, congressional leaders did what they were supposed to do: punt—through a short-term continuing resolution that would fund the government at existing levels and give them six weeks or so to reach an agreement. The Senate passed the continuing resolution, and the House was prepared to as well, until Trump changed his mind and said he wouldn’t sign it. He broke off in order to show he would “fight.”

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One remedy for ending government shutdowns, then, would be to effectively remove the hostage-taking power from any one party. This would happen through what’s called an automatic continuing resolution.

Such proposals, numerous versions of which have been introduced and debated over the years, essentially say that if Congress doesn’t pass a spending bill by deadline, the government automatically enters into a continuing resolution. Under a system like this, it wouldn’t have mattered that the House Freedom Caucus, Rush Limbaugh, and Ann Coulter convinced the president overnight to oppose the stopgap bill and “fight” for the wall. The federal government would have automatically kept running at previously agreed-upon levels until negotiators came up with something better.

The fear about entering a state of automatic funding, though, is that Congress might never get out of it. If members know that there’s an easier path than voting on difficult, deeply compromised budget agreements, they will take the easier path. And operating under CRs in the long term is a terrible form of governance, as spending bills written one year wouldn’t meet the spending needs of the next year—or the next year, or the next year.

Even worse would be a scenario where the automatic CR legislation is written in a way that gives one party in particular a reason to prefer it over passing a budget. This is why recent automatic CR proposals, mostly introduced by Republicans, have turned off Democrats. In 2013, Ohio Sen. Rob Portman and then–Oklahoma Rep. James Lankford introduced automatic CR legislation that would enact cuts the longer the automatic CR was in place. This would have incentivized some Republicans to never lift a finger and watch as government spending whittled down.

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More than five years later, Lankford, now a senator, is still pushing for some version of an automatic CR. He conceded in a brief interview on Tuesday that his past proposals have made the issue more “complicated” than it needs to be and that he understood Democratic objections to versions involving cuts. His most recent proposal, then, which he introduced as a member of the Joint Select Committee on Budget and Appropriations Process Reform, wouldn’t include the cuts. It would be neutral. And in order to ensure that it wouldn’t replace budgeting forever, it would state that “Congress members cannot travel, Cabinet members cannot travel, while there’s a continuing resolution. No one can travel until this is resolved.”

When I spoke with Democratic members, they emphasized that the goal of the committee was to move away from CRs altogether and toward completing full budgets and appropriations bills on time. The automatic CR proposals, House Budget Committee Chairman John Yarmuth told me, seemed like “the easy way out.” They dropped the idea.

“The feeling was that we should try to develop procedures that prevented a CR, that a CR was an outcome to be avoided rather than to be sought,” Rhode Island Sen. Sheldon Whitehouse told me. “Of course, now that one’s in a shutdown, one has a different perspective about a CR.”

The Joint Select Committee on Budget and Appropriations Process Reform threw its hands up and disbanded in late November, unable to agree on any reforms.

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Another way to eliminate shutdowns, though, would be to look directly at the specific law that requires them.

The era of shutdowns didn’t begin until the early 1980s. There had been funding gaps before, with many during the late 1970s, but the government still stayed up and running. People went to work. That a funding deadline had passed, for example, wasn’t Congress expressing its opinion that the whole government should cease operations.

The “inventor” of the shutdown was President Jimmy Carter’s attorney general, Benjamin Civiletti. He issued an opinion in 1980 strictly applying the Antideficiency Act—a series of laws dating back to 1870 that generally forbids federal officials from spending money that hasn’t been appropriated—to funding gaps. In a funding gap, Civiletti’s memo stated, agencies and departments would need to suspend all operations except those where there is “some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property.”

Civiletti’s opinion was shocking in its rigidity.

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“The opinion of the attorney general, at the time, was quite surprising,” Charles Tiefer, a professor at the University of Baltimore Law School and former House deputy general counsel, told me. “No one thought that agencies had to close down just because there was a short gap between appropriations. Civiletti himself had to eat some of his words because he had gone so far in disrupting agency operations.”

Indeed, Civiletti issued another opinion in 1981 that offered some additional flexibility and exception categories for “essential” personnel. Although the Antideficiency Act and Civiletti’s opinion have been tweaked over the years, that 1981 opinion—that nonessential personnel must be furloughed and nonessential operations shut down—is still the basis of government shutdowns.

Tiefer, though, believes that Civiletti’s own effort to “eat his words,” and allow for more exceptions to the Antideficiency Act, shows that there’s plenty of space for either Congress or the Justice Department to amend it further.

“I think that the shutdown was largely born from the attorney general opinion, and that it could either be amended or there could be a different opinion by a current attorney general,” Tiefer said. “His backing off is an example, or an illustration, of what we could do now.”

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So why isn’t it done now? Why does Congress, when it has multiple available options to eliminate the threat of a shutdown, not do so?

Because Congress, in its Congress-y way, likes the threat of a shutdown, and likes the way things have worked since the Civiletti opinions.

The threat of the ever-“looming” shutdown raises the stakes of inaction and serves as a forcing mechanism for parties to come to agreement. Individual members can defend votes on vast, sometimes ugly spending legislation as “necessary to prevent a shutdown.” It creates “must-pass” vehicles for legislation that leaders and members can lard up with extraneous bills that couldn’t pass on their own. This threat, typically, works, and funding gaps were much less frequent and shorter in duration in the years after the Civiletti memo. When a group did try to weaponize a shutdown, as Speaker Newt Gingrich did in the mid-1990s, the experience was so painful that there wasn’t another one for 17 years.

But with frequent shutdowns returning, and leaders seemingly more willing to bear the consequences of a shutdown than they used to be, could we soon be nearing the time for shutdown reform?

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“I think this shutdown is a powerful call for reform,” Tiefer said. “On the other hand, that depends on what conclusion the public draws. If the president’s supporters end up still agreeing that it was right to shut down the government, then you could see big shutdowns again in the not-too-distant future.”

“It’s possible that there might be more appetite for doing something to make it harder for the government to shut down,” Molly Reynolds, a senior fellow at the Brookings Institution, told me. “But at the same time, when you think about a kind of coalition that would be needed to pass such a reform, in the current political environment, I’m not sure I see how Democrats and Republicans would come together to do that.”

If the current shutdown continues much longer, the crisis could be useful, at least, to determine how long a shutdown needs to last before members decide it’s time to eliminate them.