How do shutdowns happen? Why do they happen? How are they prevented, and who do they affect?
Today we share a quick recap of what happened on Saturday, 9/30/23 when the government almost shut down, and then explain all the ins and outs of government shutdowns. Have they always been part of our legislative process? How do they happen? And what happens when they happen? Our guest is Charles Tiefer, professor at the University of Baltimore School of Law.
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Transcript
Nick Capodice: Doo doo doo doo doo doo doo doo doo doo. Are you recording? Yes, you are. Oh, hello, everyone. It is Monday, October 2nd, 2023. And as of this moment, the government is not shut down. But we came really close. So before we launch into what government shutdowns are, why they happen, what happens when they do happen here is a super fast summary [00:00:30] of what went down this weekend just in case anybody out there missed it. Now to start, government shutdowns usually happen when one party is pushing up against another party in a different seat of power. And an agreement cannot be made in time to decide how the government will fund itself. Now, what happened a few days ago was unique because it was kind of one sided. The Republican Party in control of the House could not come up with a consensus among themselves. Speaker of the House Kevin McCarthy [00:01:00] had worked with President Joe Biden months ago to create a budget. However, several hard right members of the GOP opposed that budget. Nobody was budging. No resolutions could pass. Shutdown seemed imminent, and everyone was having frantic meetings in back rooms. So the Senate presented bipartisan legislation that would avoid a shutdown, a continuing resolution, and House Speaker McCarthy refused to put it on the floor of his chamber for a vote.
Nick Capodice: Instead, McCarthy presented a different continuing [00:01:30] resolution that catered to the hard right members of the House thinking that would win, since the Republicans do control the majority there. But it was not hard right enough for certain members. And then that resolution failed. So to prevent a government shutdown, Speaker McCarthy would have to present legislation that wasn't just appealing to the GOP. It had to get support of the Democrats to pass. And that's what happened Saturday night. Hey, [00:02:00] Saturday night, just another Saturday night. A bipartisan 45 day continuing resolution was passed under suspension of the rules, which is a way to fast track legislation with limited debate. And you need a two thirds majority to do that. It passed 335 to 91 with 90 Republican votes. All the hard right members and one solitary Democrat vote against it. That lone Democrat, by the way, is Illinois Representative Mike Quigley. He has a very large Ukrainian constituency, and this [00:02:30] resolution lacked support for Ukraine. So next in the process, that resolution passed overwhelmingly in the Senate, 88 to 9, and it was signed by President Biden. Long story short, we're open for at least another 45 days. And we've clearly got to do an episode on the speaker of the House. Toute suite. All right. Here is everything you need to know about government shutdowns.
Hannah McCarthy: Nick Yeah, I think that I have done a pretty good job of [00:03:00] not referencing The West Wing on this show. I think I've shown a lot of restraint.
Nick Capodice: I think that's fair.
Hannah McCarthy: For someone who works on a show that's largely about government and still cries about a quarter of the time. When I watch The West Wing, I will admit I occasionally bring up the Bartlet for America napkin, but that's it, right?
Nick Capodice: You do bring that up. But in your defense, it's a pretty cinematic moment.
Hannah McCarthy: It is. But today I'm doing it. I'm breaking. [00:03:30] I'm going to reference The West Wing quite a bit. Also, by the way, for anyone who has never heard of or never seen The West Wing, it is a TV show from the 90s and the early aughts about a fictional president, Jeb Bartlet and his administration. And it has been roundly praised for being relatively true to the actual goings on of the West Wing, if pretty idealistic and sentimental, Which is why I cry all the time. And the government of Myanmar reportedly [00:04:00] used The West Wing to study how democracy works.
Nick Capodice: Although I do know that Gerald Ford's daughter couldn't watch it, apparently because they got the layout wrong and the frequent walk and talks, they turn left when it's actually a right turn and they turn right when it's actually a left turn, whatever.
Hannah McCarthy: Nevertheless, I recently rewatched a certain episode and Nick my how the world has changed.
West Wing: And I said no.Let's [00:04:30] be clear, sir. You will be held responsible for shutting down the federal government.Then shut it down.
Nick Capodice: Oh, it's so dramatic, Mr. President.
Hannah McCarthy: It is so dramatic. But, Nick. Government shutdowns actually used to mean something. The name of that episode, by the way, for anyone who's looking for it, is just shut down. I mean, can you even imagine at this stage a United States in which a shutdown warrants this kind of music?
Nick Capodice: I [00:05:00] feel like nowadays the announcement of a government shutdown would elicit nothing more than like a trombone going wah wah wah.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: I'm Nick Capodice.
Hannah McCarthy: And this is Civics 101 and today we are talking about the grind to a halt disaster that has taken on new meaning in recent years. The government shutdown.
Archival: Top Democrats Nancy Pelosi and Chuck Schumer. Tonight, the possible shutdown less of a concern now than tonight. Lawmakers racing [00:05:30] to prevent a government shutdown both chambers.
Archival: So we told the president we needed the government open. He resisted. In fact, he said he'd keep the government closed for a new.
Archival: Poll shows more Americans blame the president and his party for this historic.
Archival: Unfortunately, Congress has not fulfilled its responsibility. It's failed to pass a budget. And as a result, much of our government must now shut down until Congress funds it again.
Nick Capodice: I [00:06:00] feel like government shutdowns are pretty commonplace nowadays. But I do want to point out, I don't remember hearing about them when I was a kid.
Hannah McCarthy: Okay. Yes. The thing is, the government shutdowns were certainly happening as you were growing up. The public just was not paying as much attention to them.
Nick Capodice: Why wouldn't you pay attention to the government itself shutting down?
Hannah McCarthy: Well, before we talk about what a government shutdown used to be, [00:06:30] let's quickly establish what it actually is.
Charles Tiefer: A shutdown is like a disease in the budgetary process.
Hannah McCarthy: This is Charles Tiefer, a law professor at the University of Baltimore. He spoke with the original host of Civics 101, Virginia Prescott, back in 2017.
Nick Capodice: Right. So before we stumbled into our longest shutdown ever.
Hannah McCarthy: Correct. Just before the 2018 shutdown, this is when we were on the verge of it and everyone was like, what does the shutdown mean?
Charles Tiefer: Again, annual spending bills are supposed [00:07:00] to regularly follow one after the other. So as one expires, the one for the spending for the next year takes over. But if you have a giant glitch in the spending process, the one for a prior fiscal year expires and there's no new one in place. And that means the government finds it has an empty wallet without any money in it that it can spend.
Nick Capodice: In other words, a government shutdown [00:07:30] is when the government fails to fund itself.
Hannah McCarthy: And to understand government shutdowns. Today, it helps to know where this relatively recent phenomenon came from.
Nick Capodice: Wait, we haven't always had them?
Charles Tiefer: No.
Hannah McCarthy: Our government did not have its first shutdown until 1976.
Nick Capodice: So for the first 200 years of our government's existence, we didn't have a single shutdown. Correct. So what on earth went wrong?
Hannah McCarthy: Before the mid 70s, the [00:08:00] president had way more control over the budgeting process. Then Richard Nixon came along and took it to the next level. He refused to spend congressionally appropriated funds.
Archival: The time has come for a new economic policy for the United States. Its targets are unemployment, inflation and international speculation. And this is how we are going to attack those targets.
Hannah McCarthy: Congress got mad and passed the Congressional Budget and Impoundment Control Act of 1974 [00:08:30] to gain more control as is in the name. 1976 came along and President Gerald Ford vetoed an appropriations bill because he felt trapped by a Democratic Congress. He wanted more control and the government shut down for ten days.
Nick Capodice: Did everyone freak out?
Hannah McCarthy: Not really. Everyone assumed Congress would just figure it out. And they did. Also, because we'd never had a shutdown before, the government just went on spending money [00:09:00] that it hadn't appropriated. The attorney general later decided during the Reagan administration that spending money you didn't have was illegal. All right.
Nick Capodice: But I grew up in the Reagan administration and I still don't remember shutdowns.
Hannah McCarthy: Reagan had eight government shutdowns during his administration.
Nick Capodice: Eight shutdowns.
Hannah McCarthy: Yeah the most of any president ever.
Nick Capodice: Wait. We hear about Reagan's legacy all the time. Why doesn't anybody mention that he had eight shutdowns?
Hannah McCarthy: Alright. So [00:09:30] here is the big shift that changed government shutdowns forever. Before the 1990s, government shutdowns were typically about line item quibbles, disputes over very specific funding decisions. For example, we shut down under Carter for a full 18 days when he vetoed an appropriations bill that funded an expensive nuclear powered aircraft carrier.
Archival: We were going to hold down government spending, reduce the budget [00:10:00] deficit and eliminate government waste. So what.
Nick Capodice: Changed in the 90s?
Charles Tiefer: Oh, that was a titanic clash in 1995. A new Republican House and a Republican Senate had been elected in the 1994 election. So you had the first Republican Congress in ages and ages and ages had been decades since there had been a Republican House. This was led by Speaker Newt Gingrich, [00:10:30] and he thought that this would batter down the doors of the White House and that he would make them sign bills about key spending programs, including perhaps cuts in entitlements like Medicare, Medicaid.
Hannah McCarthy: He talked about letting Medicare wither on the vine. The fact is there is a 45% increase in general Medicare spending. [00:11:00] That is twice the inflation rate over the next seven years.
Nick Capodice: Okay. I do remember it being a huge deal that Republicans had control of Congress for the first time in like 40 years.
Charles Tiefer: And President Clinton, who had lost the Congress in the 1994 election, had been elected with a strong Democratic Congress in the 1992 election and then lost in the midterm election. He had laid low for a while. He hadn't been fighting. He hadn't been standing up visibly against the Republican Congress. But he stood [00:11:30] up on the shutdown and he said, you want to shut me down? Go ahead and shut me down. I'm here to protect Medicare, Medicaid, the environment and Social Security. And he drew the line in the sand. And that was what the government closed down on that clash at the top level.
Nick Capodice: That sounds familiar.
Hannah McCarthy: Doesn't it, though?
West Wing: You will be held responsible for shutting down the federal government.
West Wing: Then shut it down.
Hannah McCarthy: Okay. So this major shutdown happens in the 90s [00:12:00] and it lasts 21 days. And this is a big deal. And I don't know why you don't remember it, probably because you were a teenager and had other things on your mind. But the point is, the government shuts down for a long time and this time it is about something big. It's not some small line item. It's about political ideologies of a president.
Nick Capodice: Just like Jeb Bartlett.
Hannah McCarthy: Just like Jeb Bartlett.
West Wing: We still haven't cut enough spending. I [00:12:30] agree. I want you to cut agriculture subsidies. And you want me to cut Medicaid again. You know, I'll veto any Medicaid cuts. And I know you won't give me any agriculture cuts. So here we are.
Hannah McCarthy: And by the way, Republicans in the 90s made a bet that the public would back them in this fight, and they were wrong. It divided and hurt the Republican Party. And everyone was so wounded by this moment that for the next 17 years we avoided another [00:13:00] shutdown.
Nick Capodice: What year did that episode of The West Wing come out?
Hannah McCarthy: Ah 2003.
Nick Capodice: Okay. So when that episode came out, government shutdown had become a different, scarier political beast and a really big deal that we all worked hard to avoid.
Hannah McCarthy: Yeah even when we had budget issues, which happened all the time, Congress was able to prevent shutdown by passing what's called a continuing resolution. Here's Charles Tiefer again.
Charles Tiefer: When you have a gap, it's possible for Congress to say, we [00:13:30] don't have our act together to pass another full length appropriation bill that would be 100 pages or much more, depending on which one it is. We don't have our act to do that, but we could pass a one paragraph statement that you just continue spending for the next 30, 60 or 90 days at the rate from last year. And that's it's like a bandage over the sore and it works during that period. The government has a wallet. There are many complaints [00:14:00] about that situation, but it is not a shutdown.
Nick Capodice: Which is something that President Biden signed to avert the first potential shutdown of his administration in 2021 and again in 2023. But Hannah, our longest shutdown so far, 34 days under President Trump in 2018, that seemed to confirm this new normal that government shutdowns will be the inevitable result of partizan battles between Congress and the president, [00:14:30] and they don't seem to have any lasting political consequences. So what happened?
Hannah McCarthy: Well, we saw our first government shutdown since Clinton during the Obama administration with this big fight over the Affordable Care Act about. Three weeks ago. And. As the federal government shut down the Affordable Care Act's health insurance marketplaces open for business across the country.
Nick Capodice: Another example of a party not getting what they wanted and gambling on a shutdown.
Hannah McCarthy: And also I think another example [00:15:00] of partizanship of a Congress that does not want to compromise, because before the 90s remember, shutdowns were typically short and represented the time that it took to make a compromise on usually something smaller. And that's just not really the case anymore. So Obama had just the one shutdown, but then Trump had three, although one of them only lasted for nine hours. And now, you know, so for me, when someone at the FDA tells me, as they [00:15:30] recently did, that they might not be able to do an interview in a week because the government might be shut down. I'm like, Yep, that sounds about right.
Nick Capodice: All right. So government shutdown has gone from this sort of temporary hiccup, barring negotiation to a commonplace political tactic.
Hannah McCarthy: At least in our current political climate. And for us laypeople, us non-government employees, who can kind of shrug at a shutdown because it isn't reflected in our paychecks, I feel like we [00:16:00] should emphasize that a shutdown does matter to everyone. It does affect your life. And we're going to find out how after the break.
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Nick Capodice: All right. Let's get back to it. What actually [00:17:00] happens when the government shuts down?
Hannah McCarthy: Great question. Here's Charles Tiefer.
Charles Tiefer: The government has various guides, legal opinions of the past, practices of the past guidelines and so forth to follow, which say some activities can continue to be funded sort of on an emergency basis so that the armed forces aren't left without the ability to [00:17:30] to get ammunition. Things that must continue on an emergency basis are able to. But the government splits apart and quite a lot of its activity isn't. Emergency is just a continuing need of the public and that it can't spend on during a shutdown.
Hannah McCarthy: And for many of us, the problem does start and end at inconvenience.
Charles Tiefer: Among the examples. So most of the IRS shuts down. If you have a question [00:18:00] and you need to get an answer, you can't get an answer. You can't call up. No one will answer the phone.
Hannah McCarthy: Now, what shuts down during a shutdown? All depends on what has or is not been funded at that point. But you're usually going to see the park's services close up shop, meaning bye bye to your trip to Yellowstone. The same goes for Smithsonian museums and the National Zoo. Immigration courts typically close as if the backlog wasn't bad enough, most of the Department of Agriculture, which [00:18:30] monitors farming and forest regulation, shuts down. Nasa even has to power down some of its large scale instruments.
Nick Capodice: Really?
Hannah McCarthy: Yeah.
Nick Capodice: I didn't know that. What about stuff like regulation, like food and drug inspection? Does that continue?
Charles Tiefer: Food inspections are considered an emergency service and they do continue.
Hannah McCarthy: And things like entitlements, meaning Medicare and Social Security, those don't need annual spending bills. So those keep churning. But there are examples of people [00:19:00] being disastrously affected by a government shutdown.
Charles Tiefer: I can tell you what one of the most horrible examples of what happens during a shutdown in the Health and Human Services, they have what they call trials, tryouts, tests for for new drugs, new treatments, and new people cannot be enrolled in a clinical trial. New patients, desperate new patients cannot [00:19:30] be enrolled in clinical trials during a shutdown period. And so you would see you saw the last time that there was a shutdown, these frantic parents saying, I can't get my son or daughter into a trial. And they've got one of these rare types of childhood cancers that there's no good regular treatment for. I can't imagine what insanity is going on that they're not letting my child get enrolled.
Hannah McCarthy: And just to be clear [00:20:00] in terms of who is affected by something like that, as of October 2021, there were over 100,000 clinical trials registered in the United States alone. Halting that much work can have devastating consequences.
Nick Capodice: So if Health and Human Services were to shut down during a pandemic, what would happen to all the research, the response and vaccine development?
Hannah McCarthy: Well, fortunately, that's considered an emergency service. And for example, HHS created a full what [00:20:30] we're going to do with Covid 19 if the government shuts down plan. But keep in mind, these emergency workers, these people who still show up and do the job, they are technically working without pay.
Charles Tiefer: There is no money for them. It used to be the custom that when the shutdown was over, they would pay people retroactively. But there have been threats during recent pre-shutdown periods. By some you might call some anti-government or small government [00:21:00] people who who say let's we don't want to pay the civil service, let's not pay them at the end of the let's not pay retroactively at the end of the shutdown.
Nick Capodice: So who gets to make the call in terms of what actually is an emergency service or not?
Charles Tiefer: Well, that has gotten more organized a few decades ago. It was pretty random. Supervisors at low levels would make the decisions. But now the there is supervision on high from the White House. [00:21:30] They keep a pretty elaborate tab to make sure there's some uniformity in what's shut down and what's not shut down so that the different cabinet departments have some kind of a similar read.
Hannah McCarthy: No matter how well a shutdown is organized, it is still a shutdown. There is a civic impact. [00:22:00] A shutdown affects how we think of our government. The public does not like it.
Charles Tiefer: Well, they all think it shows gridlock in Washington and that Washington is dysfunctional. That's something pretty common that you see during shutdowns. They consider it the extreme example that the government can't get its act together. The public doesn't like disorderly things like shutdown.
Nick Capodice: Essentially, even if it is commonplace, it's [00:22:30] the kind of thing we roll our eyes at. But expect shutdowns do endanger faith in our government, which I feel is bad for all of us in the long run.
Hannah McCarthy: And Nick, just to bring this walk and talk full circle. This is exactly the point that that West Wing episode is trying to make. That shut down is trying to make the government shuts down because there was a compromise to keep everything going. And then that compromise is retracted. [00:23:00] And Jeb Bartlet is like, do your job.
West Wing: We had a deal. I don't care if my approval ratings drop into single digits. I am the president of the United States and I will leave this government shutdown and till we reach an equitable agreement.
Nick Capodice: This episode was made by Hannah McCarthy with me Nick Capodice and edited by our executive producer, Rebecca Lavoie. Christina Phillips is our senior producer. Music In this episode by [00:23:30] Xylo Zico Wild Light Meter. Daniel Birch Cycle Hiccups and Day-o. Is there anything in the news that you think we should do more explainer episodes about? We would love to hear what those things are so we can get to work on them. Send us an email at Civics 101 at nhpr.org or you can tweet to us. I just can't stop saying tweet. Don't get mad at me at Civics 101 Pod. And don't forget you can support the show with a donation right there in the show notes. Get yourself a hat. It's fast. It's fun, and you're going to be supporting work that really matters. [00:24:00] Civics 101 is a production of NHPR, New Hampshire Public Radio.