After a 35-day government shutdown, just about everyone in Washington agrees that it was a terrible idea. Though it’s hard to see how President Donald Trump could credibly threaten another shutdown after his humiliating retreat last week, he wants to keep it as an option as Democrats head back to negotiations. But both the Republican congressional leadership, which never wanted to try another one, and the Democrats, who deplored Trump’s decision to go to the brink even as they profited politically from it, concurred that it was counterproductive.
But now that this shutdown has ended — as they always do, because whoever takes responsibility for them suffers politically — some in Congress want to come up with a measure that would ensure that the country never has to go through this again. Both Democrats and Republicans are pondering bills that would effectively ban government shutdowns, and it’s likely that the effort will be popular. Yet as much as this appears to solve everyone’s problem and remove a tactic that seems to do real harm and doesn’t benefit those who try it, the legislation is an even worse idea than a shutdown. Indeed, rather than solving the core problem that creates such impasses, such a bill would only add to the dysfunction at the core of our governing system.
Government shutdowns happen because Congress has fundamentally abdicated its role at the center of the process by which the Constitution dictates that differences over budgets must be resolved. Over the course of the last century, both Republican and Democratic majorities have abandoned their responsibility to govern, with Congress increasingly punting decision-making to the administrative state run by the executive branch. The only leverage it has retained is the power of the purse. Yet even there, so much of the government’s expenditures are dictated by entitlements that are baked into the budget cake that the areas where Congress can exercise its ability to fund or defund various programs are increasingly restricted.
When fundamental disagreements over the budget occur, such as the Republicans’ desire to defund Obamacare in 2013 and the Democrats’ refusal to pay for a border wall now, the normal legislative process fails. That is due in large part to the end of the go-along-to-get-along culture that once prevailed on Capitol Hill, as ideologues on both the left and the right have gradually remade both parties in their own image. With moderates on either side of the aisle an endangered species, and with the majority’s ability to spread pork around reduced through the banning of earmarks, gridlock is a given.
Thus when a faction or a leader in either party wants to make a stand on a specific controversial issue, the only way they have of forcing a decision is a government shutdown. That they always fail is a consequence of the pressure that builds on the side that is most blamed for the standoff as a result of the suffering endured by federal employees who go unpaid and of the services that are curtailed. Though past Congresses have sought to limit the impact of shutdowns, the scope of that inconvenience and hardship, as the recently concluded standoff shows, is still considerable. Indeed, even though some thought Trump would, unlike members of Congress, be impervious to the pressure, he too proved incapable of sticking to his guns on border-wall funding when faced with bad polling and news cycles dominated by stories about unpaid federal employees.
The proposals for banning shutdowns all center on a mechanism that would ensure that funding for federal agencies would continue even when money was not part of an appropriations bill passed under regular congressional order. In order to encourage a resolution of such standoffs, agencies would receive automatic 1 percent cuts under a proposal put forward by Senator Rob Portman (R., Ohio) and then another 1 percent cut every subsequent 90 days.
That would ensure that federal employees, national parks, and air travel would not be affected, as they were during the five-week shutdown. But it also codifies more congressional abdication. If passed, the governmental leviathan would no longer operate at the behest of the voters through their elected representatives. Instead, it would take on a life of its own even more than it does now, with so much government funding off limits for congressional infringement.
The measure raises obvious questions about constitutionality since, in effect, it abrogates Congress’s power to fund all government measures under Article I, Section 8.
That ought to end the discussion right there, but since both parties are more interested in avoiding responsibility for the process than in defending the enumerated powers of Congress, it would be up to the courts to strike down such a blatantly unconstitutional measure.
Yet, just as important, a shutdown ban would also accelerate the already alarming process by which the legislative branch has abandoned to executive agencies its constitutional mandate to govern the country. As awful and politically ineffective as government shutdowns might be, the threat to force one at least preserves the pretense that the federal structure is run by the people’s representatives rather than enduring due to the inertia of a spending process that mandates that the money keep flowing even when there is no legal consensus on how it may be spent. Ensuring that the legislative process can have no effect on spending means that the government runs itself rather than operating at the pleasure of those elected to govern.
For all the good intentions of those behind a shutdown ban, and with the knowledge of how destructive they are, this legislation does as much (if not more) to damage democracy as the spectacle of gridlock does, or even the suffering of unpaid government employees.
If the people don’t like the way either the president or Congress is doing their job, the elected officials can be replaced through the ballot box. But putting the administrative state in an untouchable box in this manner means that the constitutional process laid down by the Founders is being junked in favor of a funding machine that no voter or any elected representative can stop. One can only hope that the same gridlock that such bills are designed to eliminate will act to prevent a cowardly Congress eager to abandon its constitutional duties from passing such legislation.