Shutdowns and their discontents

To:             The Select Committee on the Modernization of Congress

From:       Josh Chafetz, Cornell Law School

Reform:   Shutdowns and their discontents

Almost no one is a fan of government shutdowns.  They’re messy, disruptive, inefficient, and unfair to federal employees and contractors.  Especially in the immediate aftermath of the longest shutdown in American history—albeit only a “partial” one—it is unsurprising that a number of reform proposals are being put forward to try to prevent future shutdowns.  But the fact that shutdowns are bad does not mean that proposals to prevent them are good.  I’d like to offer here a few words of caution about some of the proposals that are currently being floated.

My starting point is that the budget and appropriations processes provide a significant source of leverage for the houses of Congress in their dealings with the executive.  (I have developed this argument in significantly more detail in chapter 3 of my recent book, Congress’s Constitution.)  Changes that reduce or remove this leverage may wind up shifting power towards the executive in ways that are worse than the problems they are meant to address.

Consider proposals for automatic continuing resolutions that would kick in if any appropriations bills were not passed by the beginning of the new fiscal year.  Under the current regime, assuming that the priorities of the president and at least one house of Congress diverge, presidents have an incentive to negotiate with and make concessions to that congressional house so long as those concessions are preferable to a government shutdown (i.e., the furloughing of a large portion of the executive workforce).  For an example of this dynamic, consider the near-shutdown in 2011, involving a standoff between the Boehner-led House and the Obama Administration (joined by a slim Democratic majority in the Senate).  Republicans had just (in Obama’s words) “shellack[ed]” Democrats in the 2010 midterms, and they could plausibly believe that they would win the politics of a shutdown.  In this context, Obama and the Democrats caved, keeping the government open by agreeing not only to large spending cuts sought by Republicans, but also to collateral policy changes in a diverse array of areas.

By contrast, an automatic CR would significantly change the bargaining dynamics.  Under that regime, a president in Obama’s situation would only have an incentive to come to the table if an appropriations bill with concessions to a congressional house controlled by the other party was preferable to the government continuing to operate under a CR.  In that situation, it is hard to imagine presidents being willing to make much by way of substantive concessions.  Indeed, this would be the case even if both houses were controlled by the other party, so long as there was a less-than-veto-proof majority in one of the houses.  This is a significant transfer of power from Congress to the White House.

Some advocates of this policy understand that it would “end the practice of using government shutdowns as leverage for policy debates,” but it is far less clear that they have given much consideration to the question of who would be giving up leverage to whom.

Likewise, proposals to move to a biennial budget process—especially proposals that would move to a biennial appropriations process—would reduce the frequency with which houses of Congress could exert pressure on the White House to agree to collateral policy changes.  Once again, this is not simply a technocratic “fix” to the problem of shutdowns; it is a reallocation of power with significant constitutional implications.

This is of course not to suggest that there are no changes to the budget or appropriations processes that would be beneficial.  The debt ceiling, for example, may be too blunt an instrument to effectively exert leverage, which may in turn tip the scales in favor of arguments for eliminating it.

Likewise, there may be proposals that would make shutdowns less likely by making them more painful for presidents, thus shifting greater power to Congress.  Consider, for example, that the Anti-Deficiency Act provides that, “An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.”  Department of Justice Office of Legal Counsel opinions have adopted a capacious interpretation of the “emergencies involving the safety of human life or the protection of property” carve-out, giving us the familiar “essential personnel” formulation in popular parlance.  A statute that tightened the definition of who could work without pay still further and that enhanced the penalties for accepting (or perhaps even performing) unauthorized voluntary services might serve to make shutdowns significantly more painful for presidents, thereby enhancing congressional leverage.

In the end, my caution boils down to this: We should not let the desire to prevent something we don’t like (government shutdowns) lead us to support reforms that would reallocate power in a Congress-diminishing fashion.  Or, more broadly, we should make sure that we are aware of the ways in which seemingly technocratic fixes may have large-scale consequences for the allocation of governing authority.

Thank you for your consideration. I’d be happy to answer any questions committee members or staff may have. You may contact me at jc2284@cornell.edu.