Keeping Government Open

By Alex Duran

Government shutdowns already have a long history. Formal funding shortfalls began after the Congressional Budget Act of 1974, which formalized and constrained the Congressional budgeting process. Since the passage of that bill, American government has seen funding shortfalls 21 times. Initially, the government continued operations during such shortfalls, and government would continue functioning with the expectation that funding would arrive in the not-too-distant future. But this changed after Jimmy Carter’s Attorney General Benjamin Civiletti issued legal opinions indicating that the Antideficiency Act prohibits federal agencies from incurring financial obligations during a lapse in appropriations. From this point forward, federal agencies close up shop following a funding stop. Couple this with growing distrust of and resentment of “big government” in the Republican Party, and government shutdowns begin to look like they are not only legislatively required but good politics for the Republican base who desire a smaller role for government in their lives.

America is exceptional in this respect. Other countries have mechanisms to prevent government shutdowns. For example, countries with parliamentary systems only require a majority of the parliament to pass a budget. Should those legislatures fail to pass budgets by a bare majority, they are likely to face votes of no-confidence, and face speedy elections – something the governing party would like to avoid. So, why do we Americans have government shutdowns? Why do we have so many more now? And what can we do to prevent these in the future?

Divided government can predictably result in legislative inertia and often dysfunction, but more recently government shutdowns have been used as a tool to break through the inertia and push political opponents to accept legislation or appropriations they might not otherwise accept. The most recent example is Donald Trump’s effort to push Democrats to agree to more funding for his border wall. This strategy was also used in 2013 by John Boehner and Congressional Republicans in a fight over funding for the Affordable Care Act, and by Newt Gingrich and Congressional Republicans in 1995 and 1996 in order to convince then-President Clinton to curb government spending on social programs.

Of course, these are not the norm in American history, especially their increasing length. The most recent government shutdown was the longest in the history of American government, and in an era of bitterly divided politics, shutdowns may continue to be an attractive tool to push political opponents to the bargaining table.

The increasing frequency of government shutdowns, and their growing length, are not without cost. Moody’s Analytics estimated the 2013 government shutdown cost $23 billion in lost economic output. Additionally, the Office of Management and Budget estimated that the costs the Federal government incurred for services that could not be performed by furloughed employees during the shutdown was $2 billion. While the numbers have not yet been crunched for the most recent shutdown, reports indicate some irreparable harm created in national parks during shutdowns to protected wildlife. For example, The National Park Service reported trees being cut down at Joshua Tree National Park while furloughed employees were not there to prevent it.

The increasing use of government shutdowns to facilitate legislative bargains has led some in Congress to propose legislation which would provide ongoing funding for the government to foreclose such costly battles in the future. Republican Senator Rob Portman has proposed the End Government Shutdowns Act to prevent this from occurring in the future. The bill would provide continuing appropriations to prevent a government shutdown if an appropriations measure is not enacted in a timely manner. The bill would repeat the same level appropriations from the preceding year in order to fund the government until a new appropriations bill is passed. Similar bills have been proposed by House Democrats, like Representative Brendan Boyle’s Ban Government Shutdowns Act.

While these bills would provide a solution to a costly, ongoing problem in American government, they are unlikely to prevail. By providing ongoing funding for the government, the incentives for bargaining may alter radically. Representatives with sweet deals for their home districts may simply thwart new appropriations bills to keep the benefits rolling in, all while constraining the rest of Congress. As a result, there may be greater entrenchment of certain appropriations. This is not to mention that members of both parties may want to hold onto the opportunity to shut down government in light of the potential for divided government and disagreement down the road. However, the biggest impediment is that there is simply a lack of political will to solve this problem. Now that Congress and the President have agreed to appropriations and the government has reopened, there is little motivation to prevent hypothetical shutdowns down the road.

However, because of the historic length of the most recent shutdown, maybe there will be enough political will to foreclose future shutdowns. Additionally, Congress could do with a positive, bipartisan legislative achievement. Enacting legislation to bring an end to the seemingly endless series of government shutdowns may be a good way of restoring confidence in American government and Congress. Although this legislation is unlikely to receive high priority on the legislative agenda, it may be a good way of signaling to the American public that the current Congress is committed to making government work, regardless of differences about how it ought to work. This legislation will certainly not solve the problems of a bitterly divided Congress, but it will solve one problem which provides very little apparent benefit to the American public. If members of Congress can pick this up and develop a narrative to restore faith in government and bipartisanship, then maybe the bill can prevail.

Alex Duran is a Quorum Editor & J.D. Candidate, Class of 2019, N.Y.U. School of Law.