Downsides to, or pitfalls of legislation that produces a permanent end to government shutdown threats in the US?

Question

Politico's September 22, 2023 Senators seek to stop shutdowns forever, after McCarthy’s spending stumbles describes several early discussions, but doesn't address the implications. For example, one proposal

would trigger two-week stopgap bills and require Congress to focus solely on spending bills if Congress misses its Sept. 30 funding deadline.

At first glance it feels perfectly reasonable to me, serial, mini "stay the course" edicts while working on plotting the new one. One might argue that the original calls to "stay the course" did not produce ideal outcomes, but simply not making any drastic changes two weeks at a time coupled with a requirement to not do anything else until you agree on a new one seems better to me than a shut down.

It also takes a bit of wind of of the sails of individual politicians calling for shutdowns as a way of getting attention for their personal careers (which should be distinguished from those who do it out of a sense of service to their country).

But every rule or law has the potential for unintended and often unanticipated gamesmanship, loopholes and abuse. So I'd like to ask:

Question: What would be the downside(s) to or pitfalls of legislation that produces a permanent end to government shutdown threats in the US?

I specify the US only because I'm totally unfamiliar with recurring shutdown threats in other countries; certainly known downsides and pitfalls from permanent ends to shutdown threats in other countries might be relevant examples of what could happen here.

Answer 1

We actually have an example of what happens when there is an automatic mechanism to do this sort of thing: the automatic mechanism becomes the norm.

In 2010, the House was won overwhelmingly by Republicans, while the Senate and the White House were still controlled by Democrats. This lead to a series of budgetary fights. One of them was the Budget Control Act of 2011, which had this provision

The agreement also specified an incentive for Congress to act. If Congress failed to produce a deficit reduction bill with at least $1.2 trillion in cuts, then Congress could grant a $1.2 trillion increase in the debt ceiling but this would trigger across-the-board cuts ("sequestrations"), as of January 2, 2013. These cuts would apply to mandatory and discretionary spending in the years 2013 to 2021 and be in an amount equal to the difference between $1.2 trillion and the amount of deficit reduction enacted from the joint committee. There would be some exemptions: reductions would apply to Medicare providers, but not to Social Security, Medicaid, civil and military employee pay, or veterans. Medicare benefits would be limited to a 2% reduction.

Sequestration was basically a promise that the budget would be cut by 2013 in exchange for a debt ceiling hike in 2011. The theory was that Congress would have to act or everyone across the board would feel the pain of a 2% budget cut. Nobody could agree to what changes to make, so Sequestration kicked in

Billions of dollars in sequester-induced budget cuts appear set to stay for the time being, with leading political figures in Washington indicating no early resolution to the impasse, as they eye next year's congressional elections.

For better or worse, government shutdowns are truly politically painful and tend to force the side causing the shutdown back to the negotiation table.

A situation where an automatic continuing resolution kicks in would likely mean cruise control on budgets, because that incentive to compromise would be removed.

Answer 2

If the description in Politico is accurate, then the bill is a non-starter. Here's how the article you linked describes the bill:

Their bill would trigger two-week stopgap bills and require Congress to focus solely on spending bills if Congress misses its Sept. 30 funding deadline.

The first problem is that the present Congress has no authority to require a future Congress to do anything. Each house is empowered by the US Constitution to set its own rules of procedure, and no legislation can take that privilege away from them. Therefore, if they decide not to include the requirement to focus solely on spending bills, or if they decide to remove it when it becomes inconvenient, then they can do so; no legislation passed today can stop them.

The second problem is that it's not clear that the triggered extension will work. Appropriations must be passed into law, and you cannot write a law that simply deems an appropriation to be passed at some point in the future if certain conditions are not met. Thus, you have to find some way to enact the extension now and enforce it in the future. It's worth noting that the Gramm-Rudman-Hollings Balanced Budget Act of 1985 tried to do something like this, with automatic spending cuts rather than automatic spending authorization, by including language directing executive branch officials to withhold funds when the specified conditions were met. However, that law was held to be unconstitutional the next year in Bowsher v. Synar. It is not clear that there is any valid way to accomplish this sort of triggered extension [1].

On top of that, even if you could come up with a workable mechanism, the whole idea of automatic extensions is misbegotten. A "two-week" extension that automatically renews whenever it expires is not a two-week extension; it's an indefinite extension. With no downside to exercising the extension, the likely result would be that in every appropriations dispute one side or the other would see the extension as preferable to negotiating and so would refuse to negotiate. In today's highly partisan environment, appropriations would get passed only when one party gets control of all three lawmaking bodies so as to force a bill through. The result would be zombie appropriations that linger for years until the political pendulum swings far enough one way or the other to change them.

The appropriations process is a little ugly, especially when it breaks down, but in the long run it does work. Even during periods of divided government we usually manage to keep government operations from being interrupted, and in practice voters seem to be pretty good at figuring out who is responsible for the shutdowns and punishing them in the next election. Compared to the waste that would result from appropriations staying in effect for years on end, not to mention the chaos that would result from the adjustments when one party finally gets enough of a majority to change them, it's better just to put up with the occasional shutdown.

[1] One possibility would be the same mechanism that authorizes "essential" services to continue through a government shutdown, but I can't find where that mechanism is actually defined.

Answer 3

Government spending in the US runs on a "dual key" system.

• First, Congress passes legislation which causes government income and spending, notably the budget but also all other laws which cause the government to spend money. The problem is that neither income nor expenditures will be fully known in advance. Income tax depends on what people earn, veteran's medical benefits depends on how many get sick and for how long, and so on.
• The government has to manage income and expenditures day by day with the uncertainties mentioned above. If there is not enough cash on hand for expenditures, it borrows money. If there is more cash, the government repays debts.
• It used to be that Congress had to authorize any government borrowing. Early in the 20th century, this became too cumbersome, and instead Congress introduced the debt ceiling. Government did not have to come back to Congress for every bond issue, it could manage accounts day-to-day within the limit.

So to prevent a government shutdown, two things would have to happen:

First, the "dual key" would have to be replaced by a "single key" for legislation. If Congress passes laws which cause expenses, and laws which cause income, it would implicitly allow the government to borrow, repay debts, or invest to make up the difference.

The obvious pitfall from this would be that public debt could skyrocket "uncontrollably" if Congress has miscalculated income and expenditure. They would have given instructions to the government without knowing, in advance, what following those instructions would do to government debt.

The pitfall could be resolved if congress was constantly monitoring debt levels, and taking immediate corrective action, but then life would become rather uncertain. How do citizens plan their own budgets if taxes or benefits change from month to month?

Second, there would have to be a rule that in the absence of a new budget, the old budget goes on. The old budget would have to specify which expenses are recurring unless canceled by the next budget, and which are intended as one-off.

The pitfall with this is that gridlock for the new budget means falling back to last financial year, which is outdated and probably inappropriate/wasteful in many respects.

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A different option would be to remove either the Senate or the House of Representatives from the budget process, to remove the Presidential veto, and to introduce the rule that if there are multiple proposed budgets, the one with the most votes wins, *even if no budget had a majority.

Doing that would be completely alien to the US constitutional structure, and it would be problematic regarding non-budget bills which cost money.

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In the end, the shutdown is because of hyperpartisanship, not because of any one aspect of the constitutional framework. If the voters are almost evenly split into uncompromising factions, there will be consequences.

Answer 4

It doesn't actually require them to fund the government and keep it running. Requiring them to pass a two week funding bill and focus only on spending bills doesn't ensure that they would actually pass one. They could easily get in the situation of a two week funding bill getting triggered every two weeks and being required to focus on nothing but spending.

The issues that they are having is agreeing on what should and shouldn't be funded and at what levels. Forcing them to work on nothing but spending bills won't change that. As they are already leaving for the weekend without a solution it would still be the same with that system in place just no other work could get done.

Answer 5

Question: What would be the downside(s) to or pitfalls of legislation that produces a permanent end to government shutdown threats in the US?

It depends on what the mechanism you chose for permanently ending shutdown threats. Other answers have addressed "the Sequester" and the "automatic extension" methods, but there are other options.

First, suppose the real issue is hyper-partisanship. Open primaries, un-gerrymandering districts and ranked-choice voting each help diminish hyper-partisanship. Each of these strategies would need to be legislated at the state level and it would still be possible to have a government shutdown, so these solutions (while hopefully having lots of other positive effects) do not guarantee that appropriations gets passed on time every year. The downside is that it might not work.

For something a bit more direct, imagine a constitutional amendment revoking electoral eligibility to federal offices (congress, senate, president/veep) for any person who held one of these offices and failed to pass appropriations. This would only end shutdowns if politicians desire power more than legislative concessions (I'll take this bet). Of course, a minority party might also look at the incumbency advantage and play really hard-ball, but that assumes an entire conference would put their party above individual political ambitions (I'll also take this bet). If they shut it down anyway, of course, an entire government changing hands in a scant 5 years would result in a profound loss of knowledge and expertise. Obviously, staffers would find new politicians and old politicians will just move over to K street, but experience and expertise have value - believe it or not, there are good legislators and executives in government (not that anybody knows who). If nobody shuts down the government, both sides would have compromised more than they hoped when they got elected which is certainly a downside - Americans prefer the other side to compromise.