On Solving the Shutdown

In my mind, government shutdowns represent an existential failure of the separation of powers to sustain good government. Whereas regular checks and balances among our three branches helps to maintain democratic order, the appropriations process has a fundamental flaw that ultimately allows the president to suspend government unilaterally. The veto power should not be able to instantly cancel 30% of the government and put a million people out of work. Consider how dangerous that authority could be if in the hands of a genuinely cunning autocrat.

As this strikes me as a betrayal of the founding principles of this country, let’s look at the mechanics of the shutdown and see if there is anyway we could legislate ourselves out of this absurdity.

If the government cannot agree on how to appropriate funds for non-essential discretionary programs, then they must pass a continuing resolution if they want to avoid a shutdown.

But why does the government shutdown? It’s simply a consequence of the Antideficiency Act, which prevents the government from entering into contracts that are not fully funded.

So the way I see it, you could amend the Antideficiency Act (it’s been amended more than once since the 19th century, see previous source) or you could pass a law that mandates a continuing resolution in the event that a budget cannot be passed.

If you go with amending the ADA, you would need to make sure the language is precise, because things can go terribly wrong if you are too vague. If legislators are careless, it’s easy to imagine situations where the government enters into contracts for which it eventually won’t have the funds, and so would open up the government to legal risk for breach of contract en masse.

Obviously that would be bad, but it’s avoidable so long as the amendment is specific to the issue at hand. We need to address how the ADA actually necessitates a shutdown, and then amend that.

The ADA prohibits “making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).”

Notice the language of “unless authorized by law” already allows for a separate theoretical law that would mandate a continuing resolution in the event that a budget is not passed (in fact, that is what allows for a continuing resolution to be legal in the first place). But if you were set on amending the ADA, you could try changing the language to “prohibit authorizing an obligation over 30 days” or some other small number of days during which the budget could be resolved (the longest shutdown was only 21 days).

Could this be abused? It’s likely. I’m not clever enough to come up with a scenario off the top of my head, but my first feeling is that the worst ramifications would manifest not in Congress, but in the federal bureaucracy. I basically don’t think it’s a good idea to try and amend the ADA, especially since it allows for the passage of a law specific to the shutdown issue, but it’s still an option.

What’s different about mandating a continuing resolution than what we currently do, is that 1) Congress would not have to come together and pass a CR every time and 2) the president wouldn’t have to sign it every year. Once we require a CR to be in effect, that’s the law – it just needs to pass the one time. Currently, the president is not signing a full CR, which by consequence is causing the partial shutdown. Under a new law, this scenario wouldn’t occur because the CR would simply come into effect by force of the law.

But could a law mandating a continuing resolution be abused as well? Sure. Let’s say your party has it in for the DOD and you know that they need to enter into some multi-year contracts where a large bulk sum is made at the top of the agreement. If you simply sit on the budget and force a CR, you can really jeopardize those contracts by not releasing those funds. Here is a much more detailed account of how CRs hurt the DOD, I think it’s a fascinating read.

You could already do that now, but what usually stops that kind of activity is the threat that the CR actually doesn’t pass, and instead you get a shutdown. My feeling though is that if the shutdown isn’t a good enough risk, then it just shouldn’t be a part of the equation. I think budgets should function just as laws do – if you cannot agree to changing the law, then the previous law remains. In the same way, if a new budget cannot be agreed to, then the previous budget should remain.

Nonetheless, CRs are not ideal, because it’s difficult for agencies to plan their yearly activities if they don’t know what their funding is going to be, and a CR doesn’t really address that at all. If you wanted to address that issue, I think you would have to change the budget process entirely. One idea is that budgets could be for two years, but are still negotiable yearly. For instance, in 2019 you could pass a 2020-2021 budget, but in 2020 you could pass a 2021-2022 budget, where the 2021 section of the budget is simply amendments to the previous budget. In this scenario, you sacrifice flexibility for security, but you also get an additional year to agree to a budget.

However, in order to implement a bi-annual budget, you would have to amend the ADA such that the Congress could authorize expenditure forms without appropriated funds. The reason is because our deficit spending is so tied to the annual budget that we couldn’t appropriate those funds without skyrocketing through the debt ceiling. Considering that Pelosi’s’ new rule package includes both PAYGO and automatic raising of the debt ceiling after a budget is passed, frankly, I have no idea what would be needed to enact a budget with a time horizon longer than a year. It’s so fantastical it’s really not even worth thinking about.

And even if it were possible, I can still see scenarios where a budget is still stalled for that additional year due to partisan gridlock – basically there’s a good argument that the problem with the negotiations here isn’t a lack of time, but a lack of will to compromise. In that case, it makes sense that there should be a punishment that inspires compromise, but since a government shutdown isn’t good enough, you might need to replace it with another doomsday measure. What that would look like unfortunately eludes me (and no, taking away salaries from our wealthy legislators isn’t good enough either).

So what should we do? Unless I am missing something, I think the cons of an automatic continuing resolution are surpassed by its benefits.

Outside of political theory, shutdowns are also a massive waste of resources. Shutdowns cost the economy billions of dollars a week. I find this to be an absurd expense, especially in the context of this shutdown where we are losing more money a week than what the demand for the wall costs.

There needs to be a way to negotiate this stuff without sabotaging our own economy, national parks, federal worker morale, etc. in the process. Obviously there is going to be enough political will every year to negotiate a new budget, so from a practical standpoint the risk of having a mandated CR that lasts for 10 years while Congress endlessly haggles over a new budget seems minuscule to me.

Sadly, my cynical view is that I think Congress likes the shutdown – it gives considerable leverage to whatever side is able to utilize it best and it’s a dramatic way to rally your base against the Other.

And for it to pass, Democrats would have to have both houses and the presidency, because the shutdown is too perfect a metaphor of the dumb-government mantra that the Tea Party celebrates. There will never be bipartisan support.

Nonetheless, I think the shutdown is so outrageous as a dysfunction of our federal government that we should loudly advocate for some solution. I’m sure there are procedural issues with an automatic CR that can only be discovered in the weeds, but that’s great. The idea itself isn’t obviously stupid, it’s common-sensical, and most importantly stresses the democratic failure of our political process to sustain itself against the tantrums of the executive. As Trump threatens to keep the government shutdown “for months or even years”, it’s imperative that, once again, we can make laws out of the norms we thought no one would betray.

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