The latest government shutdown is the result of an obscure, 1870 law known as "The Anti-deficiency Act." This law states, in essence, that it is illegal for the government or any government employee to spend money that has not been appropriated by the Congress, except in the case of an emergency. So, if a "non-essential" federal government employee reports to work when there are no appropriated funds to pay her salary, she is technically violating the Anti-deficiency Act.
But if there's a bona fide "emergency," it's ok to spend money that the government doesn't have at the moment. You can't spend money that you don't have... except when you need to.
In November 1983, I was a 33-year-old Assistant General Counsel in the White House Office of Management and Budget. David Stockman was the OMB Director, and I reported directly to Michael Horowitz, the agency's General Counsel. The General Counsel was also known as the "Shutdown Czar," as both the planning and implementation of a government shutdown were carried out by less than a handful of OMB attorneys under the supervision of Mike Horowitz.
Like today, the Congress had failed to pass an annual budget, relying instead on a Continuing Resolution that was to expire on November 9. Absent Congressional action, the government was scheduled to shutdown on November 10. Which it did, until November 14. I also had the experience of two other shutdowns the following year -- from September 30 to October 3, 1984, and from October 3 to October 5, 1984.
Shutdown planning had actually begun many weeks before the event arrived, as all government departments and agencies were required to submit to OMB, well in advance of October 1 (the launch of a new fiscal year), their plans for an "orderly" cessation of activities. These shutdown plans were to identify, in detail, the essential functions of the department or agency and which employees were "essential" (i.e., had to report for work during a shutdown) and which were "non-essential" (i.e., got to go to the movies, go shopping, or spend time with their families).
Washington being Washington, of course, there was always a perverse incentive at work, as usual, driven by one's ego. The number of people who felt bruised because they were deemed "non-essential" was quite surprising. Being classified as "essential," on the other hand, was a huge boost to some people's egos -- a real badge of honor. I was always hoping to be classified as "non-essential" and sent home. Unfortunately, that didn't happen.
Instead, I was one of the two or three attorneys in our office, along with Mike Horowitz, responsible for enforcing the shutdown process. We divvied up the various departments and agencies and then proceeded to call them in advance of the shutdown (to make sure they had submitted their shutdown plans) and then, once the shutdown had begun (to make sure that they were, indeed, following their plans).
As luck would have it, I was assigned on each occasion the CIA, whose General Counsel at the time was Stanley Sporkin, who later became a prominent Federal District Court judge. It was my job to call Mr. Sporkin and order him to cease all but the essential activities at the CIA.
Can you imagine telling the CIA to close up shop?
My first thought was to call him during lunch and hope that he wasn't there. Or, if he was there, then perhaps he might not take my call given the obvious difference in rank. On each occasion, however, Stan Sporkin took the call himself and could not have been more gracious. And then, of course, did nothing.
The last time I called him in 1984, the call went something like this: "Stan? Hi! It's Charlie Kolb calling from OMB."
"Oh, hi, Charlie. How ya doing?"
"Well, you know, Stan, it's that time of the year again. Gotta close down the CIA and follow your orderly shutdown plan."
"You bet. We're on it. Nice to hear from you."
God it was great to be "essential." And paid.
People did get sent home -- by the tens of thousands. Most government employees actually enjoyed the time away from the office, and if my recollection is correct, all federal employees sent home were paid.
The personal highpoint during one of my three shutdowns was receiving an evening call from a frantic Assistant Secretary (of State or Defense, I can no longer recall) who was at Dulles Airport about to board an overnight flight to Paris. If he got on the plane and landed in Paris while the shutdown was still in effect, he faced charges of violating the Anti-deficiency Act. If he didn't go, he would miss an important meeting the next day.
This was pure power in Washington. There was no time to check with my boss, so I said that I thought the shutdown would be resolved before morning. I told him to head for Paris and that I'd assume the consequences if my prediction proved wrong. Fortunately, it didn't.
The entire shutdown exercise was one of pure gamesmanship - the ultimate in bureaucratic nonsense.
So here's my suggestion for the 2013 shutdown season. Congress should repeal the Anti-deficiency Act. It has absolutely no practical effect, since the government employees -- essential and non-essential -- will always be paid. The nuisance value is really for the American public and foreign visitors -- notably tourists -- who find monuments, museums, and national parks closed. (It does, however, provide political commentators with lots to talk and write about.)
Congress should replace the Anti-deficiency Act with legislation that permanently denies the compensation for all members of Congress, Congressional staff, the president, and White House budget staff during the period that the government does not have a budget enacted and in place by October 1 each year. No more Continuing Resolutions and shutdown drills. The appropriations process is where the political gaming should occur. The American people, plus our government departments and agencies, should not be affected in any way by the failure of the Congress and the White House to complete their Constitutional duties on time. We are not only a nation of laws but, presumably, one of adults as well.
Charles Kolb is President of the French-American Foundation--United States in New York City. He served in the first Bush White House from 1990-1992 as Deputy Assistant to the President for Domestic Policy. From 1997 until 2012 he was president of the Committee for Economic Development, a Washington, D.C.-based think tank. The views in this article are solely the author's.
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