Terrible, No Good, Very Bad Ways of Funding Government: Exploring the Cost to Taxpayers of Spending Uncertainty Caused by Governing Through Continuing Resolutions, Giant Omnibus Spending Bills, and Shutdown Crises

Statement of

Clinton T. Brass

Specialist in Government Organization and Management

Before

Committee on Homeland Security and Governmental Affairs

Subcommittee on Federal Spending Oversight and Emergency

Management

U.S. Senate

Hearing on

“Terrible, No Good, Very Bad Ways of

Funding Government: Exploring the Cost to

Taxpayers of Spending Uncertainty Caused by

Governing Through Continuing Resolutions,

Giant Omnibus Spending Bills, and

Shutdown Crises”

February 6, 2018

Congressional Research Service

https://crsreports.congress.gov

TE10024

Congressional Research Service

1

Introduction

Chairman Paul, Ranking Member Peters, and distinguished members of the subcommittee, my name is

Clint Brass. I am a Specialist in Government Organization and Management at the Congressional

Research Service (CRS). Thank you for inviting CRS to testify on the topic of “Terrible, No Good, Very

Bad Ways of Funding Government: Exploring the Cost to Taxpayers of Spending Uncertainty Caused by

Governing Through Continuing Resolutions, Giant Omnibus Spending Bills, and Shutdown Crises.”

As requested, this statement focuses on the subjects of interim continuing resolutions (CRs), their

purposes and potential effects, and related subjects, including the possibility and potential effects of

shutdowns of the federal government. I would like to acknowledge the work of multiple current and

former CRS colleagues in producing related analysis and research for Congress, from which this

statement benefits.

In serving Congress with nonpartisan and objective analysis and research, CRS does not make

recommendations or take positions on the advisability of particular options. Rather, CRS is available to

assist the subcommittee in its evaluation of these topics and the strengths and weaknesses of related

options for legislation, oversight, and study.

Background

The Federal Budget Process

As discussed in another CRS product,1 the “power of the purse” is a legislative power. The Constitution

lists the power to lay and collect taxes and the power to borrow as powers of Congress. Further, the

Constitution provides that funds may be drawn from the Treasury only pursuant to appropriations made

by law. The Constitution does not state how these legislative powers are to be exercised, nor does it

expressly provide for the President to have a role in the management of the nation’s finances.

Over time, the process of federal budgeting has evolved considerably through actions taken by Congress,

the President, and agencies, as they responded to pressures and priorities. The federal budget process as

practiced in recent decades is highly complex.

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The process entails many sub-processes and procedures under the Constitution, statutory

provisions, House and Senate rules, and the use of discretion within these constraints.

Many actors are involved, including Members of Congress, appropriations and

authorizing committees, congressional leaders, the President, the Office of Management

and Budget (OMB) in the Executive Office of the President, agency political appointees,

and agency career civil servants, not to mention stakeholders in the public who pursue

their right to “petition the Government for a redress of grievances.”2

If problems are perceived to reside with specific aspects of the overall budget process, it may be fruitful

to look not only at the specific aspects, but also how they relate to the whole of the budget process. An

observer may evaluate how the part and the whole fit together in law and practice. Notably, changes to the

federal budget process may affect power relationships and influence policy outcomes. Proposals for

change or for retaining current processes may therefore become controversial if different observers

perceive different problems or support differing priorities.

1 This paragraph draws on CRS Report 98-721, Introduction to the Federal Budget Process, coordinated by James V. Saturno.

2 U.S. Constitution, Amendment I, available at http://www.crs.gov/conan/constitutionannotated.

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Annual Budget Negotiations and Choices3

The federal fiscal year begins on October 1. For agencies and programs that rely on discretionary funding

through annual appropriations acts, Congress and the President must enact interim or full-year

appropriations by this date if many governmental activities are to continue operating in the absence of

such acts.4 Yet, it has been said that “conflict is endemic to budgeting.”5 If conflict within Congress or

between Congress and the President impedes the timely enactment of annual appropriations acts or

enactment of temporary, stopgap funding through a CR, a government shutdown may occur.

Along these lines, several options may present themselves to Congress and the President during highstakes negotiations over annual appropriations measures.6 The options include

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coming to agreement on regular appropriations acts by October 1, the beginning of a new

fiscal year;

using one or more interim CRs to extend temporary funding beyond the beginning of a

fiscal year for those regular appropriations bills that are not enacted,7 until a point in time

when negotiators make final decisions about full-year funding levels; or

not agreeing on one or more full-year appropriations acts or interim funding in a CR,

resulting in a temporary funding gap and a corresponding shutdown of affected federal

government activities.8

If Congress and the President pursue the second or third options, they may agree on full-year

appropriations after the beginning of the fiscal year. These agreements on full-year funding may provide

funds through regular appropriations acts—singly or combined together in omnibus legislation 9—or less

commonly, through a full-year CR.

Congress and the President frequently agree on full-year or interim funding without coming to an

impasse. On other occasions, however, Congress and the President may not come to an accommodation in

time to prevent a temporary funding gap. If a funding gap begins and funding does not appear likely to

resume during the first, full calendar day of the gap, the federal government generally begins a

3 This section draws on CRS Report RL34680, Shutdown of the Federal Government: Causes, Processes, and Effects,

coordinated by Clinton T. Brass.

4 Discretionary funding refers to budget authority (i.e., authority to incur financial obligations that result in government

expenditures) that is provided in and controlled by annual appropriations acts. By contrast, mandatory funding refers to budget

authority that is provided in and controlled by laws other than annual appropriations acts. Some budget authority provided in

annual appropriations acts for certain programs is treated as mandatory, however, because the relevant authorizing legislation

entitles beneficiaries to receive payment or otherwise obligates the government to make payment. See U.S. Government

Accountability Office (hereinafter GAO), A Glossary of Terms Used in the Federal Budget Process, GAO-05-734SP, September

2005, pp. 46, 66; and CRS Report RS20129, Entitlements and Appropriated Entitlements in the Federal Budget Process, by Bill

Heniff Jr.

5 Irene S. Rubin, “Understanding the Role of Conflict in Budgeting,” in Roy T. Meyers, ed., Handbook of Government Budgeting

(San Francisco, CA: Jossey-Bass, 1999), p. 30.

6 For discussion of the annual appropriations process, see CRS Report R42388, The Congressional Appropriations Process: An

Introduction, coordinated by James V. Saturno.

7 For discussion of the potential functions and impacts of interim CRs, seeCRS Report R42647, Continuing Resolutions:

Overview of Components and Recent Practices, by James V. Saturno; and CRS Report RL34700, Interim Continuing Resolutions

(CRs): Potential Impacts on Agency Operations, by Clinton T. Brass.

8 For discussion of funding gaps, see CRS Report RS20348, Federal Funding Gaps: A Brief Overview, by James V. Saturno. For

discussion of shutdowns, see CRS Report RL34680, Shutdown of the Federal Government: Causes, Processes, and Effects,

coordinated by Clinton T. Brass.

9 For discussion of omnibus appropriations acts and selected issues, see CRS Report RL32473, Omnibus Appropriations Acts:

Overview of Recent Practices, by James V. Saturno.

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“shutdown” of affected activities. The criteria for determining which activities are affected by a shutdown

are complex.

To elaborate on these matters, the sections below highlight selected aspects of CRs and shutdowns.

Components of an Interim CR and Potential Effects

CRs are commonplace in the modern federal budget process.10 During the 25 fiscal years covering

FY1952-FY1976, one or more CRs were enacted for all but one fiscal year (FY1953).11 From FY1977 to

present, all of the regular appropriations acts were completed before the start of the fiscal year in four

instances—FY1977, FY1989, FY1995, and FY1997.12 The sections below focus on the details of more

recent practice in the past 20 years.13

Main Components of an Interim CR

Congress has used interim CRs to protect its prerogative to set full-year funding levels by restricting and

guiding agency activities in multiple ways. In recent practice, CRs typically include as many as six main

components.14

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Coverage. CRs provide funding for certain activities, which are typically specified with

reference to the prior or current fiscal year’s appropriations acts. This may be referred to

as the CR’s coverage.

Duration. CRs provide budget authority for a specified duration of time.15 For an

“interim CR,” this duration may be as short as a single day or as long as several weeks or

months. If a CR extends for the full remainder of the fiscal year (i.e., until September 30),

it may be referred to as a “full-year CR.”

Funding rate. CRs usually fund activities under a formula-type approach that provides

budget authority at a restricted pace over time but not a specified amount. This method of

providing budget authority is commonly referred to as the funding rate, also known as a

rate for operations. Under a funding rate, the amount of budget authority for most

accounts16 is calculated as the total amount of budget authority annually available—based

on a reference level (usually a dollar amount or calculation)—multiplied by the fraction

10 It may be no coincidence that CRs have been pursued with such frequency. In high-stakes negotiations on matters of strong

underlying disagreement, a frequently employed technique is to use time as a source of leverage. See, e.g., G. Richard Shell,

Bargaining for Advantage: Negotiation Strategies for Reasonable People (New York: Penguin, 1999), pp. 89-114.

11 The structure and mechanics of CRs have evolved over time. For related discussion, see CRS Report R42647, Continuing

Resolutions: Overview of Components and Recent Practices, by James V. Saturno.

12 Ibid.

13 For recent history, see the CRS Appropriations Status Table, at http://www.crs.gov/AppropriationsStatusTable/Index.

14 This enumeration draws in part on CRS Report R42647, Continuing Resolutions: Overview of Components and Recent

Practices, by James V. Saturno; and CRS Report RL34700, Interim Continuing Resolutions (CRs): Potential Impacts on Agency

Operations, by Clinton T. Brass.

15 As noted earlier, appropriations bills provide agencies with budget authority, which is defined as authority provided by federal

law to enter into contracts or other financial obligations. The obligations, in turn, will result in immediate or future expenditures

(or outlays) involving federal government funds. See GAO, A Glossary of Terms Used in the Federal Budget Process, GAO-05734SP, September 2005, pp. 20-21. For the purposes of this testimony, the terms budget authority and funding are used

interchangeably.

16 Regular appropriations bills contain a series of unnumbered paragraphs with headings, generally reflecting a unique budget

“account.” Elements within budget accounts are divided by “program, project or activity” based upon the table “Comparative

Statement of New Budget Authority” in the back of the report accompanying the appropriations bill.

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of the fiscal year for which the funds are made available in the CR. 17 This is in contrast

to regular and supplemental appropriations acts, which generally provide specific

amounts for each account.

Prohibition on new activities. The budget authority provided in a CR typically is

prohibited for use in new activities. Specifically, an interim CR may prohibit an agency

from initiating or resuming any project or activity for which funds were not available in

the previous fiscal year. Alternatively stated, the CR may prohibit what are sometimes

called “new starts.”18

Anomalies. The duration and amount of funds in the CR, and the purposes for which

they may be used for specified activities, may be adjusted through so-called anomalies.

Congress, the President, and agencies sometimes negotiate for the inclusion of these

anomalies, or exceptions, to the formulas and restrictions in a CR, to accommodate what

they perceive as needed exceptions for an agency, program, or policy. Anomalies

typically are included to prevent what some or all stakeholders and parties to CR

negotiations perceive as major programmatic, operational, or management problems that

would be caused if an otherwise “cookie cutter” approach were used to provide funding

at a uniform rate and with uniform restrictions. However, when measured against the

typical coverage of interim CRs, anomalies tend to be rare.

Legislative provisions. CRs do not necessarily provide only stopgap or full-year

funding. Some interim and full-year CRs have included “substantive” legislative

provisions—that is, provisions under the jurisdiction of committees other than the House

and Senate Appropriations Committees—covering a wide range of subjects. These

provisions may create, amend, or extend other laws. CRs may become attractive vehicles

for such provisions, because they are considered must-pass legislation on which Congress

and the President eventually will reach agreement.19

An interim CR that does not contain any anomalies or substantive legislative provisions is sometimes

referred to as a “clean” CR. Typically, CRs of short duration (e.g., a few days) are less likely to include

anomalies and more likely to be viewed as clean. However, an observer may describe a CR as clean if the

17 A frequently asked question concerns what happens when an interim CR is superseded by a full-year appropriation. In this

situation, an appropriations account may receive a full-year amount of budget authority. At that point in time, the interim CR’s

funding rate is no longer relevant. For purposes of accounting, any spending that previously occurred under the interim CR’s rate

would be treated as if the spending had occurred under the full-year amount. To illustrate, suppose an agency’s appropriations

account received $365 million for the prior fiscal year. Further suppose that an interim CR provides the prior-year level as the

current year’s funding rate. Therefore, the rate for operations for the account would be $365 million. Further suppose that the

interim CR has a 30-day duration. If the interim CR continued to be in effect until its expiration, the agency generally would be

expected to obligate up to a total of around $30 million over the 30-day duration of the CR, because the interim CR authorized

the agency to obligate funds at that pace. Further suppose the interim CR is superseded immediately upon its expiration with a

full-year appropriation of $350 million, $15 million less than the previous year. In that case, the agency’s total obligations under

the interim CR would be applied to the full-year amount. For example, if the agency obligated $30 million during the 30-day

interim CR, the agency would have $320 million available for obligation going forward, after the expiration of the CR (i.e., $350

million full-year appropriation minus $30 million obligated under the CR equals $320 million available for obligation from that

point forward).

18 For example, see Section 104 of P.L. 110-92 (121 Stat. 990).

19 House Standing Rules XXI, clause 2, and XXII, clause 5, prohibit legislative provisions or unauthorized appropriations in

general appropriations measures, but these restrictions do not apply to continuing resolutions. The House typically adopts special

rules restricting amendments to continuing resolutions. Comparable Senate restrictions on legislative provisions and unauthorized

appropriations, located in Senate Rule XVI, apply in the case of continuing resolutions. For further discussion of related

legislative procedures, see CRS Report R42647, Continuing Resolutions: Overview of Components and Recent Practices, by

James V. Saturno.

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CR includes a limited number of such provisions that the observer views as acceptable. The level of

cleanliness of a CR, therefore, is typically in the eye of the beholder.

Potential Purposes and Effects

Interim CRs may be considered and enacted in the context of ongoing and high-stakes budget

negotiations within Congress and between Congress and the President. In general, interim CRs typically

are intended to simultaneously (1) preserve congressional prerogatives to make final decisions on fullyear funding levels and (2) prevent a funding gap and corresponding government shutdown during

negotiations within Congress and between Congress and the President.20 Consequently, interim CRs

provide relatively restrictive funding levels for agencies.

Moreover, an interim CR may be structured purposefully as less than optimal from the perspective of

many stakeholders, in order to retain sufficient incentive for negotiating parties to come to an accord for

final decisions.21 Participants in a negotiation also may find it necessary to compromise, purposefully

accepting what they perceive as some undesirable impacts in an interim CR (e.g., temporary constraints

on funding) in order to achieve what they perceive as more important, desirable objectives (e.g.,

achievement of budget policy goals or avoidance of a government shutdown).22 In other words, some

effects of interim CRs may be a product of intentional concessions and compromises in negotiations, in

order to achieve other impacts.

After enactment of an interim CR, OMB provides detailed directions to executive agencies on the

availability of funds and how to proceed with budget execution, typically in a bulletin.23 The bulletin

includes an announcement of an “automatic apportionment” of funds that will be made available for

obligation, as a percentage of the annualized amount provided by the CR.24 In an interim CR, Congress

also may provide authority for OMB to mitigate furloughs of federal employees by apportioning funds for

personnel compensation and benefits at a higher rate for operations, albeit with some restrictions.25 An

interim CR typically also directs that for programs that would otherwise have high rates of operation at

20 CRS Report RL34700, Interim Continuing Resolutions (CRs): Potential Impacts on Agency Operations, by Clinton T. Brass.

21 According to one observer, interim CRs might be seen as devices that set “spending levels ... high enough to let agencies

function but not so high that they removed the incentive for Congress and the president to agree on regular authorization and

appropriations bills.” Joe White, “The Continuing Resolution: A Crazy Way to Govern?” Brookings Review, vol. 6 (summer

1988), p. 30. GAO also has discussed how incentives for policymakers “to negotiate seriously and reach agreement” may be

affected by proposals for budget process changes like an automatic continuing resolution. See GAO, Budget Process:

Considerations for Updating the Budget Enforcement Act, GAO-01-991T, July 19, 2001, p. 12; and CRS Report R41948,

Automatic Continuing Resolutions: Background and Overview of Recent Proposals, by Jessica Tollestrup (James V. Saturno is

available to answer questions about this report).

22 For related discussion, see G. Richard Shell, Bargaining for Advantage, pp. 156-175.

23 For example, see U.S. Executive Office of the President, Office of Management and Budget (hereinafter “OMB”), OMB

Bulletin No. 17-02, “Apportionment of the Continuing Resolution(s) for Fiscal Year 2018,” September 28, 2017, at

https://www.whitehouse.gov/omb/bulletins/. This bulletin directed agencies how to operate during the interim CR for the period

October 1, 2017, through December 8, 2017, as provided for by P.L. 115-56. For further discussion, see CRS Report RL34700,

Interim Continuing Resolutions (CRs): Potential Impacts on Agency Operations, by Clinton T. Brass.

24 The Antideficiency Act (31 U.S.C. §§1341-1342, 1511-1519) requires the President to “apportion,” in writing, an executive

agency’s appropriation by specific time periods, activity, or a combination of time periods and activities, in order to prevent the

agency from spending at a rate that would exhaust the appropriated funds before the end of the fiscal year. OMB implements the

requirement on the President’s behalf. During an interim CR, Congress may provide some flexibility on the timing requirements

in apportioning funds. For example, see Section 108 of P.L. 110-92 (121 Stat. 990).

25 For example, see Section 112 of P.L. 110-92 (121 Stat. 991) and OMB Bulletin No. 07-05, p. 4 (attachment, Section 6). OMB

might apportion funds at, essentially, greater than a daily rate, as the period of time covered by an interim CR elapses. However,

Congress may require that the “authority provided under this section shall not be used until after the department or agency has

taken all necessary actions to reduce or defer non-personnel-related administrative expenses” (Section 112 of P.L. 110-92).

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the beginning of a fiscal year (e.g., distributions of funding to states, foreign countries, grantees, etc.),

such high initial rates of operation shall not be made that would impinge on final funding prerogatives. 26

Apart from preserving congressional prerogatives and preventing shutdowns, CRs may have other

significant effects. If impacts were viewed in general categories, an interim CR might be characterized as

having several, general types of potential impacts on the operations of agencies.

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First, the restrictive funding level of an interim CR may have an impact upon an agency’s

activities, compared to receiving full-year appropriations. For example, agency personnel

may reduce or delay a variety of actions, including hiring, awarding contracts and grants,

and authorizing travel.

Second, an agency funded by an interim CR may experience some uncertainty about

what its final funding level will be. Uncertainty may cause an agency to alter its

operations, rates of spending, and spending patterns over time, with potential ripple

effects for internal management of the agency and its programmatic activities. This also

may affect, for example, an agency’s hiring, the awarding of contracts and grants, and

authorizing travel. For agencies that expect increased appropriations (e.g., the Census

Bureau when gearing up for the decennial census), uncertainty and restricted funding

levels may affect planning and future operations.27

Third, because an interim CR imposes tight restrictions on the obligation of funds for its

entire duration, an interim CR may have an impact on an agency’s administrative work

burden. As one study of the potential impacts of interim CRs on the Department of

Defense (DOD) summarized, “[t]he most visible effect” of a short-term CR is its impact

on the time and paperwork necessary to manage the distribution of funds.28

Fourth, a prohibition on new projects and activities may delay or disrupt an agency’s

ability to undertake planned activities or be nimble in responding to changed

circumstances. For agencies with little need to engage in “new starts,” this prohibition

might not be significant in its implications. For agencies that typically engage in new

projects or change their funding priorities from year to year, however, the prohibition

might have more significant impacts on operations.

In 2008-2009, CRS and the Government Accountability Office (GAO) each explored specific examples of

the potential and reported effects of interim CRs on agencies.29 GAO also identified factors that may

influence how agencies manage during CRs and what steps agencies take to mitigate the effects of

uncertainty. While some common themes emerged across these analyses, the specific, reported impacts

varied considerably among agencies and from year to year, as one might expect from agencies with highly

varied missions, activities, and funding mechanisms. Elsewhere, Professor Philip Joyce drew on

26 For example, see P.L. 115-56, Division D, Section 109 (131 Stat. 1141).

27 For discussion, see CRS Report R44788, The Decennial Census: Issues for 2020, by Jennifer D. Williams.

28 CRS Report 89-579, Short-Term Continuing Resolutions: The Department of Defense Experience, by Alice C. Maroni

(archived and available upon request).

29 CRS Congressional Distribution Memorandum, Potential Impacts of Interim Continuing Resolutions (CRs) on Agency

Operations and the Functioning of the Federal Government, July 8, 2008, coordinated by Clinton T. Brass (available on request);

and GAO, Continuing Resolutions: Uncertainty Limited Management Options and Increased Workload in Selected Agencies,

GAO-09-879, September 2009. The CRS memorandum was later condensed into a CRS report in October 2008 and subsequently

updated (CRS Report RL34700, Interim Continuing Resolutions (CRs): Potential Impacts on Agency Operations).

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interviews and journalistic accounts to provide additional perspectives on effects of CRs,30 and Thomas

Alexander Jacobs examined how interim CRs may influence expenditure patterns of federal agencies.31

Processes and Potential Effects of a Funding Gap and Government

Shutdown

When federal agencies and programs lack funding after the expiration of interim or full-year

appropriations, the agencies and programs experience a funding gap. If funding is not expected to resume

in time to continue operations (i.e., during the first, full calendar day of the gap), then, under relevant law

and guidance, an agency must cease operations, except in certain situations where law authorizes

continued activity. The criteria that flow from law for determining which activities are “excepted” from

shutting down and which personnel are “excepted” from furlough are complex, and the potential effects

of a shutdown vary considerably among agencies and programs.

Selected Processes

The Constitution, statutory provisions, court opinions, and Department of Justice (DOJ) opinions provide

the legal framework for how funding gaps and shutdowns have occurred in recent decades. 32 Article I,

Section 9 of the Constitution states that “No Money shall be drawn from the Treasury, but in Consequence

of Appropriations made by Law.” Federal employees and contractors cannot be paid, for example, if

appropriations in the first place have not been enacted. Nevertheless, it would appear possible under the

Constitution for the federal government to award contracts or make other obligations if it lacked funds to

pay for these commitments.33 The Antideficiency Act generally prevents this, however. The act prohibits

federal officials from obligating funds before an appropriations measure has been enacted, except as

authorized by law.34 The act also prohibits acceptance of voluntary services and employment of personal

services exceeding what has been authorized by law.35 Therefore, the Antideficiency Act generally

prohibits agencies from continued operation in the absence of appropriations. Failure to comply with the

act may result in criminal sanctions, fines, and removal. The act permits exceptions for “emergencies

involving the safety of human life or the protection of property.”

For years leading up to 1980, many federal agencies continued to operate during a funding gap,

“minimizing all nonessential operations and obligations, believing that Congress did not intend that

agencies close down,” while waiting for the enactment of annual appropriations acts or continuing

30 Philip G. Joyce, The Costs of Budget Uncertainty: Analyzing the Impact of Late Appropriations (Washington, DC: IBM Center

for the Business of Government, 2012), at http://www.businessofgovernment.org/report/costs-budget-uncertainty-analyzingimpact-late-appropriations.

31 Thomas Alexander Jacobs, “Continuing Resolutions: The Influence of Temporary Spending Restrictions on Monthly

Expenditure Patterns of Federal Agencies” (Ph.D. diss., University of Kentucky, 2014), at https://uknowledge.uky.edu/cgi/

viewcontent.cgi?article=1012&context=msppa_etds.

32 For legal analysis of funding gaps, see GAO, Principles of Federal Appropriations Law, 3rd ed., vol. II, GAO-06-382SP,

February 2006, chapter 6, pp. 6-146 – 6-159.

33 For discussion, see prepared statement of Walter Dellinger, Assistant Attorney General, in U.S. Congress, Senate Committee

on the Budget and House Committee on the Budget, Effects of Potential Government Shutdown, hearing, 104th Cong., 1st sess.,

September 19, 1995, S.Hrg. 104-175 (Washington: GPO, 1995), p. 18. Some commentators, however, have expressed a contrary

view. See Jim Schweiter and Herb Fenster, Government Contract Funding under Continuing Resolutions, 95 Fed. Cont. Rep.

180, note 17 (February 15, 2011).

34 31 U.S.C. §1341. The Antideficiency Act (31 U.S.C. §§1341-1342, 1511-1519) is discussed in CRS Report RL30795, General

Management Laws: A Compendium, by Clinton T. Brass et al., pp. 93-97. GAO provides information on the act, at

http://www.gao.gov/legal/lawresources/antideficiencybackground.html.

35 31 U.S.C. §1342; see also §1515.

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resolutions.36 In 1980 and 1981, however, U.S. Attorney General Benjamin R. Civiletti issued two

opinions that more strictly interpreted the Antideficiency Act, along with the law’s exceptions, in the

context of a funding gap.37 The Attorney General’s opinions stated that, with some exceptions, the head of

an agency could avoid violating the Antideficiency Act only by suspending the agency’s operations until

the enactment of an appropriation. Generally speaking, the Civilletti opinions guided subsequent

developments and marked a significant change in the potential effects of shutdowns and the effect of CRs

in preventing shutdowns.

Potential Effects of a Shutdown

Effects of a shutdown may occur at various times, including in anticipation of a potential funding gap

(e.g., planning), during an actual gap (e.g., furlough and curtailed operations), and afterwards (e.g.,

addressing backlogs of work). The longest such shutdown lasted 21 full days during FY1996, from

December 16, 1995, to January 6, 1996, after a shorter shutdown in November 1995. More recently, a

funding gap commenced on October 1, 2013, the first day of FY2014, after funding for the previous fiscal

year expired. Because funding did not resume on October 1, affected agencies began to cease operations

and furlough personnel that day. A 16-full-day shutdown ensued, the first to occur in over 17 years.

Another funding gap commenced during FY2018, on January 20, 2018, after the expiration of an interim

CR.38 Funding resumed on January 22, 2018, after a two-full-day funding gap and three-day shutdown.39

Insights into the effects of the most recent FY2018 shutdown are still emerging. That said, the

experiences of FY1996 and FY2014 illustrate what may occur with respect to employee furloughs and

government operations during a shutdown of relatively long duration.40 More extensive information is

available in a CRS report, which summarizes many of the effects.41 Nonetheless, the shutdowns in those

years involved the furloughs of hundreds of thousands of federal employees and the curtailing of many

agencies activities. Immediately before the FY2014 shutdown, the Pay Our Military Act (P.L. 113-39)

was enacted on September 30, 2013, in an effort to mitigate some effects of a shutdown on certain

personnel and operations of the U.S. Armed Forces. This legislation was structured as an automatic

continuing resolution (ACR) to provide funding for FY2014 pay and allowances for several categories of

personnel. Notably, the process of legally determining which employees were authorized to be paid took

several days, and the Departments of Defense and Homeland Security did not avoid furloughs for the first

few days of the shutdown. Even with these staff present at work and being paid, their work was

constrained to activities excepted under the Antideficiency Act. In the aftermath of the FY1996 and

FY2014 shutdowns, OMB issued statements about the impacts of the shutdowns in categories that ranged

36 GAO, Funding Gaps Jeopardize Federal Government Operations, PAD-81-31, March 3, 1981, pp. i, 2, at

http://archive.gao.gov/f0102/114835.pdf.

37 43 Op. Att’y Gen. 224 (Apr. 25, 1980), 43 Op. Att’y Gen. 293 (January 16, 1981). The Civiletti opinions are included in a

GAO report as Appendices IV and VIII. See GAO, Funding Gaps Jeopardize Federal Government Operations, PAD-81-31,

March 3, 1981, at http://archive.gao.gov/f0102/114835.pdf. For a detailed discussion of exceptions to the Antideficiency Act, see

U.S. GAO, Principles of Federal Appropriations Law, vol. II, pp. 6-146 – 6-159.

38 OMB, “Status of Agency Operations,” memorandum M-18-06 Revised, January 20, 2018, at https://www.whitehouse.gov/

omb/memoranda/.

39 OMB, “Reopening Departments and Agencies,” memorandum M-18-07, January 22, 2018. Appropriations resumed in the

evening of Monday, January 22, 2018, after most federal agencies would have closed for the day. Therefore, although funding

technically was available that day, most agencies’ non-excepted activities were effectively shut down for the day.

40 Between the issuance of the Civiletti opinions in 1980-1981 and 1995, funding gaps were limited to three or fewer full days of

duration. Consequently, they were of relatively short duration compared to those of FY1996 and FY2014.

41 CRS Report RL34680, Shutdown of the Federal Government: Causes, Processes, and Effects, coordinated by Clinton T. Brass.

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from effects on federal employees to effects on government services, individuals in the public, and the

U.S. economy.42

Potential Issues

Looking across these subjects, several illustrative questions and potential issues for Congress might be

identified.







Congressional access to information. In anticipation of a CR, especially one that may

be in effect for an extended period of weeks or months, agencies typically send proposed

anomalies to OMB, which the President may or may not propose to Congress for

inclusion in legislation. To what extent may this be an issue for Congress and committees

of jurisdiction in the annual appropriations process?

Agency planning for, and operations during, CRs and shutdowns. When CRs or a

shutdown appear to be possible or likely, how well are agencies planning for these

circumstances? Is there a role for legislation in helping agencies structure their programs

and operations to accommodate interim CRs, through anomalies in CRs or through

changes in authorizing statutes? Is there a role for oversight in bringing attention to these

issues?

Budget process changes. Would budget process changes address root causes for CRs and

shutdowns? To what extent are the root causes procedural rather than political and policybased? Would changes in the budget process affect power relationships within Congress

or between Congress and the President?

This concludes my statement. Thank you again for the opportunity to testify, and I will be pleased to

respond to any questions the subcommittee may have.

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff

to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of

Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of

information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.

CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United

States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,

as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the

permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

42 For discussion and citations, see CRS Report RL34680, Shutdown of the Federal Government: Causes, Processes, and Effects,

coordinated by Clinton T. Brass, section titled “Effects on Government Operations and Services to the Public,” at

http://www.crs.gov/Reports/RL34680?source=search&guid=574186a4c1194eacb5f308129f5c8d44&index=0#_Toc499824066.

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