Tea Party of Scottsdale, AZ
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How to End the Government Shutdown Option

Budget impasses have a way of working out badly for the GOP. Here’s a way to avoid the next crisis 

stop and a large number of federal employees are furloughed. The result is that national parks close, small businesses are not able to get government loans and government contractors are severely impeded.

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The GOP almost always bears the blame for a shutdown, because the smaller-government message of Republicans is easily portrayed as aiming to deprive the public of government services. President Clinton faced off against House SpeakerNewt Gingrich in 1995, and Mr. Clinton won. President Obama dueled with the Republican House in 2013 and Mr. Obama won.

The advantages to the political party that favors higher spending—i.e., the Democrats—reflect the existing legal regime. But the next Congress can change the law (the most relevant one being the Antideficiency Act) so that the public suffers less inconvenience when the political parties cannot agree on spending levels. In case of a government shutdown, the government would continue to spend on discretionary programs at a level close to the amount authorized by the previous year’s budget. A reasonable default target might be 95%.

Such a law could be a political game-changer. The public would be less likely to suffer serious inconvenience with spending at this default target, and a 5% solution would strengthen the leverage of the party favoring less spending, i.e., the GOP. A 5% cut would in any event be closer to what Republicans ultimately want. They could hold out for a deal preferable to the default, since there would be very low costs imposed on the public in the interim.

A budget reform law should also include provisions to deter a president from increasing the political costs of a government shutdown. Pursuing what is known as the Washington Monument strategy, the executive branch often closes down popular government services such as the Washington Monument or White House tours, claiming that it lacks the funds to keep them open.

The law could discourage this strategy by requiring each agency of the federal government to reduce spending in the way that would be the least disruptive and costly to the public. The government should also be prohibited from taking certain specific actions, such as furloughing employees, that are known to cause significant disruptions to the public.

These provisions could be enforced by requiring each agency to report to the Congress two weeks after the initial shutdown and then each month thereafter explaining the cuts it has made and justifying them in terms of imposing the least burdens to the public. Yes, the executive branch could attempt to dissemble in order to inflict pain on the public—but such pain could be more easily traced and exposed.

If the new Congress passed such a bill, Mr. Obama might veto it. That veto would suggest to the American public that he regards government shutdowns as a weapon to use their pain in pursuit of his own ends. And a veto would make it harder for Mr. Obama to blame any future government shutdowns on Congress.

But even if the president did veto the bill, it would remain on the legislative shelf, ready to be enacted when a Republican president comes to office with a Republican Congress. We need enduring structural change to transform the long-term balance of powers between the forces of spending restraint and those of spending growth.

Mr. McGinnis is a law professor at Northwestern University. Mr. Rappaport is a law professor at the University of San Diego.

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How to End the Government Shutdown Option
published this page in Home 2014-12-31 05:53:52 -0700