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Column: How Congress Acquired the Final Say

Clay Bennett, Chattanooga Times Free Press

Clay Bennett, Chattanooga Times Free Press

Yet another fight in Congress — this one over President Barack Obama’s Affordable Care Act — has resulted in a government shutdown.

Have politicians always been willing to bring the entire government and much of the nation’s economy to its knees simply to get their way? Was this standard operating procedure before modern-day Republicans came on the scene?

The answer is no. But that’s not because today’s Republicans are behaving worse than legislators of the past. (Sen. Ted Cruz of Texas has so far resisted assaulting supporters of Obamacare with fire tongs or a cane, as politicians once did over other divisive issues.) Instead, the blame belongs with the drastic changes in the laws governing the appropriations process in recent years, opening up possibilities for political warfare that didn’t exist a century ago.

The Constitution contains a clause that states that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” As soon as Congress began taxing, appropriating and spending in the 1790s, it found it difficult to enforce the “appropriations clause.” Federal officials would happily incur debts on behalf of the U.S. without regard to actual appropriations.

Legislators grumbled about this almost immediately. Rep. John Randolph of Virginia complained in 1806 that the appropriations process offered at best a “mere cobweb of defence against expenditures.” An official who disbursed funds given him, he fumed, is “like a saucy boy who knows that his grandfather will gratify him, and over-runs the sum allowed him at pleasure.”

Such complaints focused on the habit of executive-branch departments to spend money in excess of their appropriation for a given fiscal year. Congress, by contrast, rarely complained if the government spent money in the absence of a congressional appropriation. This happened quite frequently, largely because the fiscal year originally ended Dec. 31, when Congress wasn’t in session. In the early republic, few politicians contemplated the possibility the government should shut down if Congress refused to pass an appropriations bill.

That doesn’t mean closing the government was off the table. But those who threatened shutdowns were executive-branch officials, not hotheads in Congress. If, for example, a department of the government burned through its appropriation before the end of the fiscal year, it would send an emissary to Congress and ask for a supplemental appropriation. If the request was refused, the department could threaten to cease operations (the Post Office resorted to this tactic on several occasions). Faced with the threat of chaos, Congress invariably coughed up the necessary funds. Yet these open confrontations, according to the political scientist J. Roderick Kiewiet, tended to be the exception rather than the rule. Instead, government agencies and departments ran deficits, and Congress grudgingly made up the difference.

After the Civil War, Sen. John Sherman (a Republican of Ohio and the lesser-known but equally capable brother of William Tecumseh Sherman) led the charge to stop these “evils.” In 1870, Sherman and his allies amended the laws governing the appropriations process. A little-debated and little-noticed statute now declared that “it shall not be lawful for any Department of the Government to expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or to involve the Government in any contract for the future payment of money in excess of such appropriations.”

Yet this didn’t stop government departments from exceeding their appropriations. In 1905, Congress acted again, passing legislation that built upon the 1870 legislation. This became known as the Anti-Deficiency Act. The law permitted Congress to allocate appropriations in increments rather than in a single lump sum. Additional amendments to the act barred departments from spending money in the absence of an appropriation except in “extraordinary emergencies,” and required departments to set aside reserves to deal with potential gaps in funding.

Subsequent opinions handed down by government lawyers bolstered the Anti-Deficiency Act. In 1962, the comptroller general handed down a decision that affirmed the power of Congress to force government departments to live within their means. In short, they couldn’t spend money in excess of what they had been given via an appropriation. But these administrative rulings were focused on budget shortfalls. They were largely silent on the question of what would happen if Congress simply failed to appropriate any money.

By the 1970s, this question was increasingly relevant. Congress repeatedly failed to pass appropriations bills in time for the new fiscal year, and instead resorted to so-called continuing resolutions to fund the government on a temporary basis. But a growing number of officials increasingly asked what government agencies and departments could do when there was a “lapse” between the expiration of one appropriation and the beginning of another. Such lapses had taken place during the 1970s. Were they violations of the Anti-Deficiency Act?

In 1980 and 1981, President Jimmy Carter’s attorney general, Benjamin Civiletti, issued two opinions on this issue. Both are a bit esoteric for anyone without a firm grounding in administrative law. According to summaries by the Congressional Research Service, they held that “with some exceptions, the head of an agency could avoid violating the Anti-Deficiency Act only by suspending the agency’s operations until the enactment of an appropriation. In the absence of appropriations, exceptions would be allowed only when there is ‘some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property.’” Additional exceptions were made for spending “authorized by law,” a definition that encompasses a limited number of expenditures deemed essential.

Otherwise, the Civiletti opinions guaranteed that when Congress failed to pass an appropriation bill, most of the government would shut down. In the process, the balance of power subtly shifted back to Congress. Previously, its failure to act did little to stop the government from continuing its day-to-day operations. But by the 1980s and 1990s, the reverse was true. In the process, the failure to pass appropriations went from being evidence of legislative laziness to a “nuclear option” that one party could invoke in order to secure concessions from the other.

All that remained was for one party to embrace this option as a standard tactic.

Stephen Mihm is an associate professor of history at the University of Georgia.