When President Joe Biden on Saturday signed the bill keeping the government open through March, he ensured that he would complete his presidency without experiencing a government shutdown of any length.
He is the first to do since George W. Bush and only the second since 1980, when an obscure directive from the Attorney General required immediate government shutdowns when Congress failed to pass appropriation bills on time.
After last year’s debt ceiling deal, which included a two-year budget agreement, I wrote that Biden “made Washington functional again” as he promised in the 2020 campaign. Despite the last-ditch attempt from Donald Trump to inject chaos into the legislative process at the end of Biden’s term, Biden will be leaving behind a Washington far less dysfunctional than when he arrived in the Oval Office.
Relative calm is unlikely to last once Trump is sworn in. But we should remember that dysfunction is not destined.
Not only can we choose leaders who are serious about legislating, bipartisanship, and effective governing, we can revisit the 1980 Justice Department opinion that set the stage for so much reckless brinksmanship.
First, here’s what’s leading the Washington Monthly website:
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Gray Expectations: Anita Jain, editorial director of the Open Markets Institute, reviews the new book Golden Years: How Americans Invented and Reinvented Old Age by James Chappel. Click here for the full story.
A Trump-Era Question: What is the Meaning of “Rape?”: James D. Zirin, former federal prosecutor and Senior fellow at the Eisenhower Institute, explains why ABC News should not have settled with Trump. Click here for the full story.
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Last week, I noted that Trump’s demand to raise the debt ceiling on Biden’s watch revealed the inherent weakness of the incoming lame duck president. He is not confident he will have the influence to corral his own Republicans and take care of basic business.
In a rare case of Trump making sense, he even told NBC News he would get rid of the debt limit entirely if Congress passed such a law. This is a tacit acknowledgement of the ridiculous premise of the debt ceiling, which forces Congress to repeatedly pass laws to cover the debts it had previously incurred with its own prior spending votes, or else induce economically devastating debt defaults. All the debt limit system accomplishes is creating opportunities for reckless brinksmanship. It does not actually limit debt.
Just as we should junk the debt limit, we should cut off the possibilities for Congress to use threat of government shutdowns as a bargaining tool.
The shutdown era began in 1980, when Attorney General Benjamin Civiletti strictly re-interpreted the 19th century Anti-Deficiency Act which declared, “it shall not be lawful for any department of the government to expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or to involve the government in any contract for the future payment of money in excess of such appropriation.”
Even though officials in the Jimmy Carter administration were divided on the opinion, the Washington Post reported that Civiletti “intended to back up his interpretation to the fullest: the law provides criminal penalties of $5,000 in fines and two years in jail for agency heads convicted of violations; the Justice Department, Civiletti said, would prosecute violators.” That view has essentially held ever since.
In theory, one way to end the shutdown era is for the Attorney General to overrule the Civiletti opinion.
Might Trump want his top Justice Department official to take shutdowns off the table for his presidency, just like he wanted to take the debt limit off the table? Maybe.
On one hand, he enjoys chaos and eagerly instigated a 35-day shutdown in his first presidency. On the other, that shutdown was a political bust. And if he’s worried about renegade Republicans making his life difficult with debt limit threats, the same might hold for shutdown threats.
Still, an opinion from the Attorney General would surely be litigated, and the Supreme Court’s conservative majority could well uphold the strictest interpretation.
But whatever Trump wants to do or what the Court might do, Democrats should push to permanently end the threat of shutdowns with legislation that guarantees all government agencies stay open and all federal workers get paid even when there is a temporary lapse in congressional appropriations.
Moreover, broader reform of the musty Anti-Deficiency Act is in order. A new report on government reorganization from the Niskanen Center notes that the old law forbids “pre-commit[ting] to out-year expenditures prior to Congress allocating funds.” That means, for example, “government buyers of cloud can only commit annually to procuring cloud services, one year at a time,” which is costlier than buying multi-year packages. In turn, “government pays so much more for cloud services that in many cases moving to the cloud has cost more, not less.”
The Democratic Party should not abandon their work to define the GOP as the dysfunctional party, and itself as the functional party. It did not work this year because Biden’s diminished communication skills and Trump’s dishonest demagoguery warped public perceptions of governing reality, which Kamala Harris could not easily rectify. But that combination of factors will not repeat.
A more likely near-future scenario is another four years of GOP-orchestrated extreme dysfunction, after which American voters will be craving for some antidotes. A plan to end government shutdowns, as well as debt limit dramas, can be part of the solution.
Happy holidays,
Bill
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