Jimmy Carter (above) and his Attorney General, Benjamin Civiletti (right), authors of the modern government shutdown.

In all the drama and commotion last week over the threatened shutdown of the US government, avoided literally at the last minute by a budget compromise between President Obama and House Republicans, has anyone noticed how frankly ridiculous this whole system has become?  How can it be that here in the USA, we have a rule that demands literally a shut-down of the entire Federal government, as self-defeating an outcome as anyone can imagine,  over a routine technical accounting glitch?

Benjamin Civiletti, Carter’s AG in 1980.

Who thought up this crazy idea?  Certainly not George Washington nor James Madison.  During the first 194 years of the American Republic, from 1787 to 1981, government shutdowns NEVER HAPPENED.  Our country survived the Civil War, the Great Depression, and World War II, all without anyone ever once shutting down the government.  




And no, it’s not that we’ve never had accounting snafus in Washington before 1980.  But up until that year, no President or Attorney General ever took the crazy position that a gap between agency funding bills — that is, the expiring of one coming a few hours or days before final enactment of the next — amounted to a doomsday machine for politicians to hurl around Capitol Hill causing the government to lock its doors.


Then came Jimmy Carter and his then-Attorney General, Benjamin Civiletti.




In April 1980, faced with a possible funding gap for one small agency, the US Federal Trade Commission, President Carter asked Civiletti what the law required.  No President had ever raised this question before in such a formal way.  Civiletti, in response, issued a legal opinion giving his reading of the Federal Antideficiency Act (31 USC 1341 and 1342) — a law on the books since 1870.  According to Civiletti, this ancient law required that “during periods of ‘lapsed appropriations,’ no funds may be expended except as necessary to bring about the orderly termination of an agency’s function” — that is, a shutdown, with a few exceptions for emergencies.  (see 43 U.S. Opinions of Attorney General, 224 (1980) and 293 (1981).)  


Many people at the time disagreed with Civiletti.   Funding gaps — mostly small ones affecting a single department or two — had occurred at least seven times between 1950 and 1980, with none resulting in a shutdown.  And nobody had complained about it.  In four of those cases, Congress itself simply shrugged and voted to ratify the work done by the government employees and made sure they got paid.  When a funding gap had threatened the US General Accounting Office in 1979,  the Comptroller General, Elmer Staats (who had been in the job for 15 years) formally ruled that no shutdown was needed since Congress, in enacting the 1870 statute, never intended that federal agencies be closed.  Instead, both GAO and OMB had instructed agencies to limit new contracts or financial commitments during these periods — but keep the doors open. 


In other words, there was nothing inevitable or necessary about government shutdowns.  It was simply one lawyer’s opinion.  Still, with Civiletti’s opinion now set, the doomsday device began to work:

• 1981: a half-day shutdown.  President Reagan vetoed a continuing resolution and sent 400,000 Federal employees home one day around lunchtime, then signed a new version a few hours later allowing them back the next morning. 

• 1984: a one-day shutdown.  500,000 federal workers were sent home until an emergency spending bill was approved the next day.

• 1990: a weekend shutdown.  The funding gap came during that year’s three-day Columbus Day weekend and was settled before doors opened on Tuesday morning.  

• 1995-1996, two back-to-back shutdowns stemming from a disagreement President Clinton and House Republicans over funding for Medicare, education, and public health.   First, some 800,000 employees were sent home between November 14 to 19 after President Clinton vetoed a continuing resolution, and then, a few weeks later, 284,000 workers were sent home again, this time for three weeks, as some 425,000 employees deemed “essential” had to work those weeks on non-pay status.

Today, in 2011, we seem to take it for granted that the doomsday machine is enshrined in law, principle, or constitution.   If anything, the threat has expanded in recent years as Congress does a worse and worse job of passing its normal spending bills on time.  Today, in fact, many people view the threat of government shutdowns as a useful “action-forcing mechanism” that compels Washington to face difficult choices — as with the budget cuts last week.  


Still, do we really need political carnivals like last week’s cliff-hanger ?  Don’t they only make the country look weak and silly to the world?  


Maybe it’s time to deep-six the 1980 Civiletti opinions and restore sanity to the system.  How hard can it be to turn off the doomsday machine?