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How to End Hostage Taking Through Government Shutdowns

This morning the government has shut down: Democrats in the Senate have refused to back a continuing resolution because it fails to protect against deportation children who immigrated to the United States illegally. 2018 is thus almost a mirror image of 2013 when the government also shutdown: then the House Republicans refused to back a continuing resolution because it did not include very substantial revisions to Obamacare. Neither the revisions to Obamacare nor protection for this class of illegal immigrants (unless bundled with other substantial changes to immigration law) could pass the House and Senate under regular parliamentary procedure. Hence the Democrats now and the Republicans then tried to take the operations of government hostage to get their way.

These kind of threats are not sound legislative practices. They disrupt the normal operations of government. Even worse, they permit a constitutional minority to use a kind of nuclear option to get what they want without the normal give and take in the legislative process. Unfortunately, given the polarization of our parties, we can expect more such hostage taking.

Most of the proposed mechanisms to prevent this kind of behavior would be ineffective. A pending bill would prevent members of Congress from collecting salaries during a shutdown. But similar state laws have not forced state budgets to get done on time and members of Congress are generally wealthier than state legislators. Senator Angus King has suggested Congress not be allowed to recess until it gets all its appropriation done in regular appropriations bills, but the prospect of spending more time in Washington is not likely to deter a determined partisan minority.

What is needed is to deprive hostage takers of the prize of the shutdown itself. The best way to do this is to have a law that would continually fund government at 85 to 90 percent of last year’s appropriations. That level of funding still preserves the ability of Congress to make realistic cuts to the budget. Indeed, as Mike Rappaport and I have argued, it facilitates this capacity, because, other things being equal, government shutdowns are disproportionately blamed on the party that is more opposed to big government.

Interestingly, over time the executive branch is itself moving toward tempering the effects of a shutdown, by classifying a greater portion of services as essential to health and safety and finding other ways to allow the public to enjoy what the government services they most enjoy, like visiting National Parks. When I advised the Justice Department on these matters, only a very few government workers could stay employed during a government shutdown. But now according to this report that number is very large indeed.

Nevertheless, blocking government funding still can help legislators who do not command a majority, because some functions of government are still impaired and because a public ignorant of what actually happens in a shutdown, believes a government shutdown is more disruptive than it actually is. Thus, even with recent executive action, a law assuring government funding at modest levels is needed to eliminate the enduring temptation of a minority to shut down the government in order do what it believes is necessary to save it.

Reader Discussion

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on January 22, 2018 at 11:11:06 am

I think your solution misses the point that using a Senate rule, the filibuster, to avoid voting on revenue and appropriations bills frustrates the ideas of separation of powers and legislative accountability that are fundamental to the Constitution.

The Constitution's chief defect is that it made the Senate too strong and the House too weak. The House's only great power is the power of the purse. It has no role in shaping the Judiciary and no advise and consent function with respect to Executive appointments.

Allowing a 40% minority in the Senate to avoid a majority vote in the Senate and House on spending and revenue measures has had the effect over the last 40 years of destroying the budget process, further weakening the House of Representatives and preventing the House from using the power of the purse to correct abuses by both the Judiciary and the Executive agencies.

I notice that the Senate has already removed the filibuster from judicial nominations for separation of powers reasons with respect to the Senate and the Executive. The same should be done with revenue and appropriations bills arising from the House.

Your remedy will make the House simply superfluous.

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EK
on January 22, 2018 at 11:32:18 am

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How to End Hostage Taking Through Government Shutdowns | Top 100 Blog Review
on January 22, 2018 at 15:07:38 pm

What is needed is to deprive hostage takers of the prize of the shutdown itself. The best way to do this is to have a law that would continually fund government at 85 to 90 percent of last year’s appropriations.

1. Hard to say whether McGinnis is being cynical or stupid. How, exactly, would this strategy deprive hostage-takers of the prize they seek, if the prize they seek is to cut the size of government? Far from removing an incentive for shut-down, it would greatly enhance it.

It's not as if government doesn't have models for dealing with such impasses. Court regularly confront circumstances in which competing parties (labor vs. management, debtors vs. creditors) are at impasse, and the impasse threatens the welfare of a going concern or the public interest. Under these circumstances, courts sometimes impose "stand-still" arrangements to compel a business (for example, an airline) to continue operations while a dispute is being resolved, and to enjoin certain competing legal proceedings (such as efforts to collect debts). The goal is to preserve the status quo as far as possible.

With this in mind, it seems obvious that the appropriate remedy under McGinnis's theory would be to maintain government's current level of real discretionary spending. This is the status quo. This policy would frustrate the ambitions of legislators that want to increase government spending and those that want to decrease it, as well as those who want to shift the spending from one purpose to another. Thus, it would reduce incentives for any of these groups to promote gridlock.

2. Of course, EK and others may argue that gridlock is a functional part of our governmental system. I have some sympathy for this view, but that strategy generally works when the people who are at impasse both feel the pain of the impasse. As McGinnis observes, because the public is unlikely to appreciate the long-term harms, it is unclear that legislators will.

Maybe we should regard this as an inevitable problem of democracy in a complicated world--or maybe we should design mechanisms for dealing this this problem, such as a mechanism for maintaining the status quo. But I can't see the rationale for maintaining 85% of the status quo.

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nobody.really
on January 22, 2018 at 18:01:08 pm

Nobody:

I suspect you are correct re: the effects of McGinnis proposal.

However, your suggestion to maintain 100% discretionary funding would appear to place the government on autopilot and may very well eliminate the possibility of ANY short or long term cuts in government spending. All one need to do, say the Dems, is to force a shutdown AND they will be able to KEEP their high le vel of discretionary spending.

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gabe
on January 22, 2018 at 18:21:32 pm

Well ... yeah. McGinnis (and others) have suggested having a default level of funding that applies when government deadlocks. That puts government on autopilot. That's an inevitable aspect of having a default level of spending: it favors those who favor the status quo--for better and worse.

I don't think anyone is disputing that. What I'm disputing is that we should adopt a mechanism with a built in bias in favor of some outcome OTHER than the status quo. I favor a larger social safety net, but I don't propose that a default level of spending automatically increases the safety net by 15%, because I know that such a proposal would be transparently biased. McGinnis favors a smaller government, so he proposes creating a default level that implements a 10-15% cut, apparently unconcerned that his proposal is transparently biased.

But here's a proposal for reconciling my solution with McGinnis: If he thinks the default level should be 15% lower than current spending, then he should first persuade Congress to cut spending by 15%, and then let Congress deadlock over the next budget. But to suggest that a default level should be CONTRARY to Congress's expressed preferences (as evidenced by their most recently adopted appropriations) seems fundamentally anti-democratic.

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nobody.really
on January 23, 2018 at 11:45:07 am

Professor McGinnis, your point is excellent and to the point!

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Nancy D.

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