Funding for the federal government expires Oct. 1, raising the specter of a government shutdown if Congress can’t come to an agreement on agency spending by that date. But the regular danger of shutdowns has not always been part of the federal calendar.
From a historical perspective, the federal government shutting down when Congress fails to pass funding legislation is a relatively new phenomenon.
Until 1980, federal agencies operated under an essentially automatic continuing resolution in the absence of funding legislation passing by the beginning of a new fiscal year.
Agencies would continue to remain open during a funding lapse, while minimizing nonessential expenditures, such as hiring, grantmaking and nonemergency travel. Once Congress passed full funding bills, agencies could then readjust their operations to meet Congress’s intent.
This practice came with its own challenges, as agencies would not enter into new contracts or begin potentially crucial projects without official funding. Such challenges are also present when Congress passes a continuing resolution today.
But in 1980 and 1981, then-Attorney General Benjamin Civiletti issued legal decisions determining that the Antideficiency Act — first codified in 1884 to prevent the government from accepting “volunteer” work by federal employees that would later be repaid once funding was passed — meant agencies could not operate except for “emergencies involving the safety of human life or the protection of property.”
“It is my opinion that, during periods of ‘lapsed appropriations,’ no funds may be expended except as necessary to bring about the orderly termination of an agency’s functions, and that the obligation or expenditure of funds for any purpose not otherwise authorized by law would be a violation of the Antideficiency Act,” Civiletti wrote in the April 1980 opinion.
“On its face, the plain and unambiguous language of the Antideficiency Act prohibits an agency from incurring pay obligations once its authority to expend appropriations lapses,” he added.
During the 1980s, this new response to funding lapses led to four federal employee furloughs that lasted no longer than a day each.
Since then, full and partial federal shutdowns have gotten significantly longer, with the longest government shutdown in history occurring in 2018 and 2019, when a Democrat-controlled House and Republican-controlled Senate and White House could not agree on funding for a wall at the U.S.-Mexico border. Portions of the government were shuttered for 35 days.
The budget process itself has gotten progressively more controversial in recent decades, due to both parties using the reconciliation rules to pass otherwise difficult pieces of legislation.
Under normal rules, bill passage in the Senate requires 60 of 100 senators to vote in favor of invoking cloture, which enables a bill to move from debate to formal consideration.
In a Senate with a narrow majority, that cloture requirement can prevent many bills from ever reaching a vote for final passage.
The Congressional Budget Act of 1974 created an exception to this process in the case of budget reconciliation, which could be passed by a simple majority.
Federal budget legislation could therefore become a vehicle to enact policy objectives that would not otherwise make it out of the Senate.
For example, the 2013 government shutdown occurred after the Republican-led House passed a continuing resolution delaying funding for the Affordable Care Act and the Democrat-led Senate refused to pass the CR unless the Affordable Care Act provisions were removed.
Those controversies, coupled with usual disagreements over how much the government should be spending in a given year, have meant that the last time Congress passed all 12 funding bills by the Oct. 1 deadline was in 1997. Every year since then has either faced a shutdown or continuing resolution for one or all of those funding requirements.
Legislation has been introduced in both chambers of Congress and by both parties that would end government shutdowns by automatically providing for a certain amount of funding if Congress fails to pass formal budget legislation, but none of those bills have yet made it out of committee.
“While our government is managing the immense challenges of the COVID-19 pandemic, the ongoing economic recovery, natural disasters and complex foreign policy challenges, agencies are now forced to plan for and potentially execute a shutdown,” said Max Stier, president and CEO of the Partnership for Public Service, in a statement.
“The work carried out by our government is too important for the regular disruptions and constant uncertainty of the current appropriations process,” he added. “There is no question: Congress must act to fund the government by Friday. Then, it is essential to pass a legislative fix to prevent the threat of shutdowns from derailing so much important work in the future.”
Jessie Bur covered the federal workforce and the changes most likely to impact government employees for Federal Times.