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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.

Machavity
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uhoh
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    The devil is in the details for these sorts of things, I was able to find the full text of Sen. Langford's proposal on his website here for anyone interested. A quick scan I was not able to find any sort of backstop in the bill, so legislators could enact it and then decide amongst themselves they're just never going to deal with anything hard fiscally ever again because that problem has now been "solved". –  Sep 24 '23 at 07:51
  • @JeffLambert so the "and require Congress to focus solely on spending bills" (from the block quote) is not really hard-wired? – uhoh Sep 24 '23 at 08:15
  • How do you propose to stop Congress if it simply decides not to "focus" on spending bills? If Congress is deadlocked about the budget, it will just end up deadlocked on the matter of whether to censure members for violating this rule. And no one else is supposed to regulate Congress's ability to do its job for separation-of-powers reasons. – Cadence Sep 24 '23 at 09:05
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    @uhoh The only enforcement mechanism I have seen so far are restrictions placed upon campaign funds used for travel and (arguably) unconstitutional restrictions placed on the rules of future Congresses. If a future Congress doesn't like a phrase, they'll just strike it out or replace it with one they like better. That may be easier to do than actually hashing out any deal, because deals require people to actually talk to one another. –  Sep 24 '23 at 09:06
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    FWIW, the Constitution of the U.S. installed government in Afghanistan had a similar provision before that government fell. – ohwilleke Sep 24 '23 at 21:14
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    @ohwilleke now that's an interesting story in itself! Since there's (of course) no Wikipedia page for "U.S. installed government in Afghanistan" can you point me to a fime frame so I can start reading a little bit about it? Perhaps then I might get oriented enough to be able to ask about it. Like most people I have "Afghanistan fatigue" and have not been able to make heads nor tails of what goes on there. Thanks! – uhoh Sep 24 '23 at 22:39
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    Are there not broadly two simply choices? Are they not, run up unlimited debts, or set some limit? (What limit is a very different thing.) How could any other country not be in the same situation? – Robbie Goodwin Sep 25 '23 at 19:15
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    Almost no other country has a debt limit separate from the spending limit, because it's very rare for taxation predictions to be significantly off and a functioning government can impose emergency budgets as well if there is a genuine emergency. – pjc50 Sep 26 '23 at 11:46
  • @RobbieGoodwin: There's a sane way to implement a debt limit ("This bill authorizes $200 billion in new spending." "No can do; our debt limit only has room for $100 billion." "Well then, let's find $100 billion we can cut elsewhere." "No, let's raise the debt limit.") and then there's the American way of doing it. – dan04 Sep 27 '23 at 00:18
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    @RobbieGoodwin: for good or ill, not all countries have an executive that lacks the support of a majority of the legislature. For example, in the UK the chance of a budget failing to pass is essentially nil: all the negotiation has been done in advance within the ruling party. If there is no majority party, or that party cannot internally agree a budget, then it will seek a coalition. If it doesn't find one, then failing to pass a budget is a confidence issue and (with a small amount of procedure) guarantees an immediate general election. – Steve Jessop Sep 27 '23 at 01:52
  • Then technically, the "run up unlimited debts" option is taken until the actual election day. You'd think that if the election still fails to produce a government, then eventually the country could be bankrupted by indefinite extension of "business as usual". In fact this has not happened yet, although the country has defaulted on debts a couple of times for other reasons: in 1932 on some war debt owed to the USA, and in 1294 to the Ricciardi banking family, prior to the current political system being in place ;-) – Steve Jessop Sep 27 '23 at 02:00
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    As for what a UK budget actually looks like: it contains changes to taxation, allocations of spending to various government departments, and a projection of what this means for debt. The projection is always incorrect: in a small way because it's inherently uncertain, and in a large way because the long-term projections are always based on agreed but completely unrealistic assumptions that future governments will benefit from untramelled economic growth and low spending increases. Actual borrowing is reported monthly in arrears and is not constrained by the projection. – Steve Jessop Sep 27 '23 at 02:25

5 Answers5

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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.

Machavity
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – CDJB Sep 26 '23 at 11:31
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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.

Nobody
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    This is the correct answer. It is not possible to enact such a mechanism without amending the Constitution itself. And, even then, it would be difficult to craft, as it would require intentionally breaking separation of powers in order to give someone other than Congress power to compel Congress to do something. Without amending the Constitution, not only can no one outside of a house of Congress make rules for that house, but no one outside of that house can even force them to abide by the rules they already made for themselves. See the 'nuclear option' on the filibuster, for example. – reirab Sep 25 '23 at 19:46
  • @reirab The question isn't asking for what is possible within the guidelines of the constitution but what the downsides of such a system would be. – Joe W Sep 25 '23 at 20:28
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    @JoeW "It's not enforceable" is a pretty darn big downside, I'd say. As is intentionally breaking separation of powers. – reirab Sep 25 '23 at 20:30
  • @Nobody, The current congress can't obligate a future congress funds. But a current congress and senate can absolutely pass laws which a future congress is obligated to follow. –  Sep 25 '23 at 20:44
  • @reirab Again, that isn't the point of the question. They are asking what are the downsides to doing it. Sure some might claim that it can't be enforced but that doesn't matter unless someone actually makes the claim that it is unconstitutional and the courts agree with that claim. Even if they agree with the claim the constitution can be amended to make it constitutional. – Joe W Sep 25 '23 at 20:52
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    @JMS Not if that law is unconstitutional, and the Constitution unambiguously gives the houses of Congress the right to determine their own rules of procedure. On top of that, the courts have repeatedly rejected, at both the state and federal, legislation that purported to dictate how a future legislature must vote (e.g., laws that provide that they shall not be repealed without some special circumstance). You could probably get a more definitive answer over at Law.SE, but the principle that you can't legislate how a future legislature must vote seems well established. – Nobody Sep 25 '23 at 21:00
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    @JoeW I interpreted the question as asking about this particular approach to ending shutdowns. It was tagged "specific-legislation" after all. The alternative interpretation, "What are the downsides to any conceivable legislation to accomplish this?" is way too broad to answer in a forum like this. The answer depends entirely on what sort of disincentives you put in place for kicking the can down the road. The one proposed in the bill mentioned in the question won't work, and I think that's useful information for people to have. Your mileage may vary, of course. – Nobody Sep 25 '23 at 21:14
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    @JoeW You have it backwards. No one needs to challenge it in court as unconstitutional. All Congress has to do is ignore it. Especially with regards to the part about requiring Congress to focus solely on spending bills if the deadline is missed, Congress could simply ignore it and there's nothing that anyone - the courts included - could do about it. If someone tried to bring a suit seeking to force Congress to abide by it, courts would (correctly) dismiss the case as non-justiciable. An amendment could be considered, but the question doesn't ask about that. – reirab Sep 25 '23 at 21:18
  • @reirab If congress passes it why would congress ignore it? But that is still ignoring the point that the question is about any drawbacks to the idea, not if it is constitutional or not. – Joe W Sep 25 '23 at 23:25
  • @Nobody I am not saying anything about the contents of your answer, just disputing the claim that it is the only correct answer because the question isn't about the idea being constitutional or not, rather any drawbacks with the idea. – Joe W Sep 25 '23 at 23:26
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    @JoeW The will of Congress changes over time, but, also, Congress frequently passes things for show, when they know those things will have no effect or that they will ignore them later. Publicly promising to solve a complicated problem to get votes is typically much easier than actually solving it in a way that does not lose votes. Again, the question is about a specific proposal, which this answer correctly points out has no legal enforcement mechanism. Inability to be enforced is a rather large drawback and, even if it could be, it would break separation of powers, which is also a drawback. – reirab Sep 25 '23 at 23:46
  • @reirab Again, the question is about drawbacks of the idea, not if it is constitutional or if congress would try not follow it. The fact that you are suggesting that they would try to ignore it instead of challenging the constitutionality if it suggests that it isn't so clear about being unconstitutional and that the problems with it that are being asked about are real. – Joe W Sep 26 '23 at 00:06
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    @JoeW Ok, got it. Thanks for the feedback. On the subject of whether a legislature can bind a future legislature, you could see, for example this discussion, which emphasizes that the principle dates back to at least the Roman Republic: https://ij.org/cje-post/state-con-law-case-of-the-week-can-one-legislature-bind-the-next/ . A more scholarly treatment can be found at: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1587&context=faculty_scholarship . – Nobody Sep 26 '23 at 07:23
  • @reirab Why are you continuing to focus on something the question isn't about? Do you really think that if congress was going to look at something like this they would work on amending the constitution before looking into it and deciding if it was a good idea to do or not? – Joe W Sep 26 '23 at 12:25
  • @JoeW That last response wasn't from me. And, as has been addressed repeatedly, this answer is addressing potential downsides of a specific piece of legislation that was proposed, which is exactly what the question is asking about. If you have a piece of proposed legislation that is supposed to accomplish some purpose and it cannot legally accomplish that purpose, that's a pretty big downside. – reirab Sep 26 '23 at 19:03
  • "in practice voters seem to be pretty good at figuring out who is responsible for the shutdowns" - equivalently, "voters seem to be pretty good at deciding which side of the appropriations argument they support". For all that politicians enjoy blaming things on each other, fundamentally whether it's the principle of what services government should (not) provide, or just pork in your district: if it's worth a shutdown to your constituents then it's worth a shutdown. One person can't disagree on their own, and nobody who agrees with your position will think the shutdown was your fault. – Steve Jessop Sep 26 '23 at 19:42
  • @reirab I apologize, I thought it was from you by mistake. – Joe W Sep 26 '23 at 20:30
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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.

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.

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.

o.m.
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  • Dual key system? Congress already authorized the spending and in most cases has already spent the money. What good can come out of trying to change that after the fact? – Joe W Sep 24 '23 at 17:32
  • @JoeW, that was the way the US system is set up. Back then, they had quite different ideas about the role, scope, and procedures of the federal government. – o.m. Sep 24 '23 at 17:43
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    Just for context, essentially every other democratic country has this single key system for budget control and generally without any detailed month-to-month adjustments. Government debt very often does increase but not at a rate that is significantly different from the US. In other words most other democratic countries just operate on the principle that passing a law automatically allows the budget for it and they are doing fine. – quarague Sep 25 '23 at 06:18
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    This question has nothing to do with the debt ceiling. Government shutdowns occur when the government fails to pass new appropriations bills before the old ones expire; they would still be a possibility even if we ran a balanced budget. – Nobody Sep 25 '23 at 18:43
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    @JoeW You're referring to increasing the debt ceiling, which has nothing to do with this question. This question is about the actual Congressional authorization of the spending, so, no, Congress, by definition, has not already authorized the spending (and, if the government has already spent it, then someone in the executive branch [not Congress] has done something illegal.) – reirab Sep 25 '23 at 19:42
  • @Nobody, passing the debt ceiling would lead to a partial default, also a rather messy kind of shutdown. Re the new bill, that was the next part of my answer. – o.m. Sep 25 '23 at 20:16
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    @o.m. The question was about a bill proposed in response to an impending failure to pass the appropriations bills on time. I'm not sure what purpose trying to shoehorn the debt ceiling into that discussion serves; the situations are not analogous. – Nobody Sep 25 '23 at 20:54
  • @Nobody, consider my last paragraph. The appropriations are the symptom, and so is the debt ceiling. The root problem is people who would rather burn the country down before they compromise. – o.m. Sep 26 '23 at 14:52
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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.

Joe W
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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.

user121330
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  • The functional part of ranked-choice voting is preventing the spoiler effect. When it does that, it disincentives tactical voting (compromising) and gives indenpendent and 3rd-parties a level playing field with the major parties. Ranked-choice voting, using the Hare method (instant runoff) of tallying ballots, can *utterly fail* at that very goal. Check out the latest issue of Constitutional Political Economy and read about it. – robert bristow-johnson Sep 29 '23 at 14:33
  • @robertbristow-johnson Interesting point - I think I covered that one when I said "it might not work." Perhaps you have something interesting to say about the "do your job" amendment? – user121330 Sep 29 '23 at 17:27