Let’s shut down the shutdown, for good

With the most recent government shutdown concluded but still fresh in mind, Congress can and should take action to prevent future government shutdowns and their collateral damage – eliminating shutdowns entirely as a tactic to gain undue legislative leverage. Most immediately, the nation needs to avoid another shutdown in mid-February, which would in essence be a continuation of the recently concluded one, just with a brief and ineffective truce stuck in the middle. Hopefully the gridlocked parties can step back and negotiate a bipartisan compromise on the issues of the moment.

Next, we need to avoid another, larger government shutdown later in 2019. Even before we get to next year’s appropriations, the national debt ceiling will need to be increased, presenting a new opportunity for impasse. And the upcoming appropriations cycle has the potential to be particularly complex and contentious, because the Budget Control Act sequestration caps spring back into effect for GFY 2020.  Absent further affirmative legislation, appropriations for both defense and civilian missions will be cut back significantly – creating scarcity and competition that will likely make negotiations even more difficult.  Some form of constructive compromise will be needed.

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But also, for the long-run, we need to eliminate government shutdowns altogether.  Working on the short-run (February) and middle-run (later in 2019) challenges should not divert our attention from the greater problem. Rather, we should harness the pain of this most recent episode to enact a permanent fix. In our system of shared powers, there will always be legislative proposals that have some significant backing but cannot muster the support – majority vote in the House of Representatives and 60 votes in the Senate – needed to pass.  What often results is the proponents trying to attach the struggling idea to a piece of “must-pass” legislation – the more essential, the better.  And there is nothing more essential than funding the government. If funding actually expires and federal agencies need to cease operations, the stakes increase exponentially.

How can this dynamic of government shutdowns be changed?  Here is a menu of fixes:

  • First, Congress should enact a law that if annual appropriations have not been enacted for a new fiscal year, the prior year’s levels of appropriations continue in effect until new appropriations are enacted. In effect, this would be an automatic continuing resolution (CR), as my No Labels colleague Bill Galston wrote in his op-ed in the Wall Street Journal on January 22, 2019. Rather than gridlock resulting in a shutdown, with the attendant drama, it would simply result in continuation of the funding status quo. This would restore the system to the understanding that was in effect from the beginning of the Republic until the issuance of a pair of legal opinions by Attorney General Benjamin Civiletti in the waning months of the Carter administration.  Shutdowns just would not happen. Perhaps this automatic CR approach could be gamed over time, but it would be a vast improvement over the current system.
  • Second, Congress should move from annual to bi-annual appropriations, cutting in half the number of appropriations showdowns and thus opportunities for shutdowns. Given that appropriations bills have rarely been enacted on time – more on that immediately below – going to an every-other-year cadence might better match the amount of work needed with the capacity to get that work done. If Congress thinks this would put too much work into a given year, it could split up the 13 different appropriations packages into two sets, one group for odd-numbered years and another group for even-numbered years.
  • Third, Congress should take a page out of the No Labels playbook: “no budget, no pay” (NBNP). Huge percentages of the voting public – left, right and center – agree that Congress should not pay itself unless and until it has performed its most essential function, funding the government.  Only after all appropriations have been enacted, would members be paid. Constitutional restraints mean NBNP cannot be imposed on a current Congress, but only on future Congresses.  All the more reason to act quickly.

Taken together, these reforms should prevent future government shutdowns; indeed, the first alone should do the trick. Let’s hope we have experienced our last government shutdown. Congress has the power to end them.

Jerry Howe is co-founder and treasurer of the nonprofit organization No Labels.