This post comes as a case study. While we shouldn’t strictly endorse the position, it has great power: it shows how good intentions can run into structures, incentives, and systems. When good intentions don’t address the wider system, there are unintended consequences. These unintended consequences can be the heart of how good ideas go wrong. Enjoy.
Without further ado:
Don’t End Government Shutdowns
by Clint Lohse, Guest Author
Government shutdowns are surely one of the worst outcomes in American politics. The failure of elected leaders to accomplish one of their basic duties dampens the economy, disheartens the federal workforce, and incenses voters. And so, after every shutdown, a small chorus of legislators calls for passage of the End Government Shutdowns Act—an outcome that, despite their best intentions, would be far worse.
The End Government Shutdowns Act is straightforward: if Congress and the president cannot agree on legislation to fund government operations, then—rather than putting government operations on hold and furloughing the federal workforce (without pay)—federal spending would be automatically extended at the current level (known in appropriations parlance as a Continuing Resolution, or CR). Congress already regularly enacts CRs to give itself more time to finish negotiations, but sometimes the process collapses and a shutdown ensues. By making the CRs automatic and indefinite—even if Congress can’t agree, even if the president would have vetoed it—the artificial deadlines and brinksmanship that herald a shutdown would be a thing of the past.
Except, sometimes Congress needs artificial deadlines and brinksmanship to do its job. And most of the time, the pressure works to force an agreement and avoid a government shutdown. For all the frustration that Congress doesn’t get enough done, the last thing legislators need is an excuse to run on autopilot and delay hard decisions further.
The bigger problem with the End Government Shutdowns Act, though, worse than letting Congress off the hook from one of its central constitutional duties, is that it shifts powers out of Congress’s hand and gives the president overwhelming leverage over the appropriations process. Currently, if the president doesn’t get what he wants in an appropriations bill, he already has the power to veto it, but at the end of that process, he must choose between something and nothing—either a compromise that keeps federal agencies running or a government shutdown and the political pain that comes with it.
The End Government Shutdowns Act would mean that the president no longer has to choose between a compromise and a shutdown. He could always keep what he has, holding out for concessions from Congress without having to give any ground, facing no consequences for refusing Congress’s budget proposals. Any legislator who has a basic understanding of checks and balances should be appalled at the idea.
Imagine if the recent shutdown hadn’t been about Democrats blocking funding for Trump’s border wall, but rolling back funding that they opposed. Suppose the Republican-controlled Congress in 2017-2018 had thrown the president a few billion dollars for border wall. After the 2018 midterms, the new House majority of anti-wall Democrats zeroes out funding for construction of a border fence. President Trump vetoes the bill. Then what?
We saw how it played out normally. The two parties tried to navigate public opinion until the other side caved. But under the End Government Shutdowns Act, the Fiscal Year 2018 Omnibus Appropriations Act would have simply been automatically extended. No shutdown, but also no updates to the federal budget. No funding increases for agencies that Congress wants to see doing more work, no reductions for programs that need to be canceled. And with government operations continuing on autopilot, no public pressure for either side to resolve the situation.
Could President Trump just continue to run his administration through 2020 on a nearly three-year-old appropriations bill? If the 2020 election keeps Trump in the White House but hands the Democrats a majority in both the House and the Senate (not so far-fetched given the Senate map and vagaries of the Electoral College), could President Trump stretch the 2018 appropriations bill out to 2024, batting away Congress with a stroke of his veto pen? Would Congressional Republicans, who’ve shown little appetite for defection, side with Democrats to override vetoes and assert their constitutional powers? That scenario would seem far-fetched if we weren’t living with political realities that seemed impossible just a few years ago.
The End Government Shutdowns Act also undermines Congress’s oversight over the administration. For example, if Congress wanted to prevent President Trump from further lifting sanctions on Russia (which were mandated by nearly unanimous votes), it could include a provision in the annual appropriations bill that “no funds shall be available” to reduce sanctions from current levels. It’s a common way Congress pumps the brakes on an administration in specific cases without going through the cumbersome process of amending the law itself. But without the threat of a government shutdown, President Trump could simply veto the bill, letting government operations run on autopilot, unchecked by Congress’s power of the purse not just on the overall budget, but on larger policy questions.
Lawmakers are supposed to make hard decisions, but the End Government Shutdowns Act doesn’t just let them avoid difficult choices, it sacrifices Congress’s constitutional powers to the whim of the president.
There are ways, though, that Congress can take the sting out of the shutdown for federal workers and mitigate the economic costs without abandoning their responsibilities or ceding unchecked power to the president.
First, make Continuing Resolutions automatic only for the Legislative Branch and Judicial Branch. Unlike the Executive Branch, putting the legislature and the courts on autopilot does not pose any political risk, imbalance constitutional powers, or erode checks and balances. There’s no reason the courts should be put on hold for a political dispute between Congress and the president, and plenty of reasons to make sure the courts are fully functional. The huge case backlog in immigration courts—which fall under the Department of Justice, rather than the Judicial Branch, and so were subject to the recent shutdown—is one real example of the damage accrued by a furloughed judiciary. The problems of being unable to pay jurors or proceed with thousands of cases pending before federal courts are easy to imagine.
Automatically funding Congress will be unpopular but is necessary. The impulse to punish senators and representatives for the political failures that lead to shutdowns may be understandable but is misguided. For one thing, there’s little point to it, since most members of Congress are already independently wealthy. For another, furloughing congressional staff (who are not independently wealthy) only makes it harder for Congress to write sound laws, respond to constituents, and do oversight, all of which are fundamental functions of democracy. Keeping Congress on the job is more important than making individual members share the pain of the shutdown.
Second, continue to pay federal employees (including contractors) even as non-essential employees are furloughed and prohibited from working. This is not just a matter of fairness to workers who have to go without pay—particularly those who have to work without pay—when our political leaders fail. According to the Congressional Budget Office, the downturn in spending and reduction in demand from 800,000 federal employees missing paychecks measurably decreased GDP. Paying federal workers helps mitigate some of the real costs that shutdowns impose on the country.
And in the long term, assuring federal workers some reliability in their jobs is necessary to sustaining a stable, experienced workforce. Every shutdown brings stories about federal employees considering leaving their jobs because of the hardship of delayed paychecks. And how many promising, smart, capable people decide to avoid the public sector where political dysfunction could cost them a paycheck? Paying workers despite shutdowns supports a healthy federal workforce and the competence associated with good government.
Congress and the President are on the brink of another shutdown. It’s unlikely to be the last. If legislators choose the easy way out through the End Government Shutdowns Act, they’ll be handing over immense power to the Executive branch and eroding the constitutional balance that underpins our democracy. They won’t just be choosing to avoid hard choices, they’ll be choosing to give up all their choices.