Use the Looming Shutdown to Prevent Future Shutdowns
A previous blogpost by The Concord Coalition reviewed the two options available to federal lawmakers in the event Congress is unable to enact some or all of the 12 annual discretionary appropriations bills before the start of the fiscal year on October 1—a continuing resolution (CR) or a shutdown/funding lapse. After a series of failed efforts to find a CR that would please at least 218 members of his narrow Republican majority, on September 21st Speaker of the House Kevin McCarthy (R-CA) sent his members home early for the weekend, signaling that a government shutdown/funding lapse may be inevitable.
Since Congress almost never enacts all the discretionary appropriations bills on time, the specter of a disruption in government services is now an annual cloud over Congress and is a source of major embarrassment to lawmakers and citizens alike. The longest shutdown in the modern budget era was just four years ago and lasted 34 days.
Seeking a solution, seven bills have been introduced this year to prevent a shutdown/funding lapse, two of which have bipartisan support. Since a CR or other type of discretionary appropriations bill will be required to avoid a shutdown or to emerge from one, that measure could be an excellent vehicle on which to attach additional language preventing future shutdowns/funding lapses. Below is a summary of the two bipartisan bills that could be a basis for bipartisan, bicameral negotiations.
The Prevent Government Shutdowns Act of 2023 (S. 135)
Introduced by Senators Jim Lankford (R-OK) and Maggie Hassan (D-NH), the Prevent Government Shutdowns Act of 2023 (S.135) would establish an “automatic” 14-day CR that would begin on October 1 and provide funding at a level equal to the prior full-year appropriation’s act for any federal agency lacking authority to incur obligations (spend money) in the new fiscal year. If full-year appropriations are still unfinished after the 14-day period, another 14-day automatic CR would begin for any remaining unfunded agencies—and the process would repeat every 14 days until all full-year appropriations bills are enacted.
The Lankford-Hassan bill would also incentivize House and Senate members to negotiate a quick funding solution by restricting the activities of lawmakers and certain staff for the duration of any automatic CR. Anyone who has ever worked in Congress will tell you that the most dangerous place to be on a Thursday evening is between a Senator or Representative and the airport. In the legislative branch, weekends are for campaigning back in the district, fundraising, congressional delegation trips (codels), and families. The Lankford-Hassan bill would take that time away by restricting official travel and prohibiting legislative activity unrelated to discretionary appropriations for the duration of an automatic CR:
- House and Senate offices (including members and their personal staff) and committees (including members and committee staff) and all officers and employees of the Office of Management and Budget (OMB) would be prohibited from incurring expenses for official travel. Using campaign funds for official travel would be similarly prohibited.
- The House and Senate could not adjourn or recess for more than 23 hours.
- During this time, only appropriations bills could be considered in either chamber. After 30 days under an automatic CR, exceptions would be provided (if needed) for certain nominations (for example: to fill a Supreme Court vacancy) and to reauthorize federal programs (without substantial changes) that expired during those 30 days.
- Each day the Senate is in session under an automatic CR, it would conduct a live quorum call to ensure the presence of all its members. (Note: under the Standing Rules of the Senate, the Senate has the authority to compel the presence of absent Senators and, if necessary, task the Sergeant at Arms to arrest the missing members.)
- The Senate is permitted to waive any of these restrictions but for no more than seven days and would require the assent of two-thirds of the Senate (67 votes in a fully seated Senate).
An attractive feature of the Lankford-Hassan bill is that the automatic CR doesn’t penalize federal agencies for lawmakers’ failure to do their jobs. It provides the same level of funding for agencies under the automatic CR as they received in the most recent full-year appropriations measure, including adjustments for agencies to maintain current program levels. This means agencies like the Department of Agriculture, which administers the Supplemental Nutrition Assistance Program (SNAP, or food stamps)—a program whose costs are significantly affected by inflation—would not have to discontinue benefits for current recipients in order to comply with the funding level in the automatic CR. Other shutdown prevention measures such as H.R.5543 introduced by Rep. Nancy Mace (R-SC), S. 2041 introduced by Sen. Mike Braun (R-IN), and S.299 introduced by Sen. Rand Paul (R-KY)), would all establish automatic CRs, but at reduced funding levels; these bills punish federal agencies for the sins of Congress.
The Lankford-Hassan bill builds upon an earlier measure, The End Shutdowns Act of 2023 (S.2729) introduced by Senator Tim Kaine (D-VA), and its companion bill in the House introduced by Rep. Don Beyer (D-VA) (H.R.5353). The Kaine-Beyer bill would also establish an automatic CR at current levels that would expire only when full-year appropriations are enacted. It would prohibit the consideration of legislation other than appropriations legislation during this period (with an exception for emergencies) but would not restrict member and staff travel.
The No Pay for Congress During Default or Shutdown Act of 2023 (H.R.3538)
Introduced by Representatives Abigail Spanberger (D-VA) and Brian Fitzpatrick (R-PA), the No Pay for Congress During Default of Shutdown Act of 2023 (H.R. 3538) would reduce the annual salary of members of Congress on a pro rata basis for every day the federal government has reached the debt ceiling and cannot pay its bills (i.e., every day the federal government is in default) or for every day a government shutdown/funding lapse is in effect. To avoid conflict with the 27th Amendment to the Constitution, the measure would take effect after November 2024 elections. In the interim, the pro rata amount of salary reduction would be held in escrow and returned to members at the end of the 118th Congress.
On its face this measure is gimmicky, but it makes the point that lawmakers should not be paid for work they don’t do. Faultless federal employees and contractors are furloughed during a government shutdown/funding lapse and do not receive a salary during this time even though some must still report for work (e.g., active-duty members of the military). A 2019 law ensures federal employees receive back pay when a shutdown/funding lapse ends, but a prolonged work stoppage can have a significant effect on household finances—bills still must be paid even though no salary is earned. The Spanberger-Fitzpatrick bill would not eliminate shutdowns/funding lapses, but it would ensure that lawmakers experience the same financial penalty as federal employees and contractors. It would help align incentives across the executive and legislative branches—and that is a key to ending future shutdowns/funding lapses.
Never Let a Crisis Go to Waste
During a shutdown/funding lapse, lawmakers often express regret for not ending the practice during the last crisis, but that regret is fleeting. Once normal operations recommence, the window for reform slams shut. Former Obama Chief of Staff Rahm Emanuel once said, “You never let a serious crisis go to waste. And what I mean by that is it’s an opportunity to do things you think you could not do before.” As this Congress barrels headfirst into another government shutdown/funding lapse, perhaps lawmakers should heed Emanuel’s words and work to prevent future shutdowns in concert with their current efforts to extricate the government from the looming crisis.
