Deadline nears for shutdown aversion

Deadline nears for shutdown aversion

Carten Cordell, Senior Writer 12:14 p.m. EDT September 29, 2015

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(Photo: Molly Riley/Getty Images)

As time ticks down on the federal appropriations clock, the window for averting a government shutdown is growing perilously small.

But plans are afoot on Capitol Hill to keep the government open past Oct. 1, with outgoing House speaker John Boehner working to pass a continuing resolution before he steps down on Oct. 30.

Boehner’s resignation has seemingly evaporated a wave of partisan contention for budget negotiation, leaving many to wonder whether there will be a shutdown at all.

“I think his view was that by resigning, her would at least get some kind of [continuing resolution] passed that would put things forward or at least avoid a shutdown right now,” said Geoff Skelley of the University of Virginia’s Center for Politics.

“I think his decision has to be seen as at least lowering the temperatures a little bit.”

So far, it seems the plan has worked. The Senate passed a continuing resolution on Sept. 28 that proposes to fund the government through Dec. 11, seemingly delaying the budget battle for three months.

The House still has to pass the CR in a vote expected Sept. 29, but even if it averts a shutdown for October, that doesn’t mean there won’t be one come Christmas.

“It is more common than not that there are multiple short-term continuing resolutions passed before the executive branch and the legislative branch determine they are at an impasse,” said John Cooney, a former counsel for the Office of Management and Budget and current partner at Venable LLP.

“The short-term continuing resolutions are a recurrent feature of the Reagan-Tip O’Neill shutdowns. The shutdowns then tended to be shorter, but even before you got to those shutdowns there typically was a series of actions where Congress was contemplating a short-term continuing resolution to avoid having to energize the formal shutdown mechanism.”

So the Senate CR may be a prelude not to the hard shutdowns of 1995 and 2013, but instead a soft shutdown, where Congress passes a string of short-term CRs while it continues to negotiate or the government briefly limits some business until the next CR passes.

“The soft shutdown mechanism was design to give the president flexibility in a period like that where it appeared that Congress was considering a short-term continuing resolution, but the legislation hadn’t been passed or presented to the president as of midnight, when the money ran out.”

So if a CR doesn’t pass the House before midnight on Sept. 30, the president could use soft shutdown rules bring in the federal workforce for half-days to work on shutdown-related activity only.

Cooney described this activity at a Professional Services Council panel on Sept. 21 as way for the president not to furlough the federal workforce if a CR is expected in a matter of hours or days.

“It’s sort of one of those conundrums that agencies face on snow days,” he said. “Do you bring the workforce in so it turns out not to be a crisis that they are there, and they can work at their desks when the money’s turned on, or do you have everybody stay home?”

From November 1981 to October 1990, nine shutdowns occurred, but lasted no more than three days, but since December 1995, the shutdowns have been hard, lasting no less than two weeks.

Whether a shutdown comes Oct. 1 or Dec. 11 or at all depends strictly on Congress’ willingness to negotiate with the White House, Cooney said, though he added the energy seems to be focused on reaching a resolution.

“Unless you are in the negotiations, it is just impossible to tell,” he said. “It’s very difficult to know the intensity with which the two branches are discussing matters with each other unless you are in the middle of those negotiations. I never hazard to guess, because it would be just that.”

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