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By Katie Cross, Associate, Blakey & Agnew
As defined by the Constitution, it is Congress's responsibility to pass legislation each fiscal year to fund the federal government. This traditionally comes in the form of 12 appropriations bills, each drafted by a specific committee like Transportation, Housing and Urban Development or Commerce, Justice, and Science. Should Congress be unable to pass each individual spending bill, they are often rolled together into one larger bill, commonly called an omnibus, that lays out funding levels for each federal department. The inability to pass a full year spending bill on time has become the rule rather than the exception. According to the Congressional Research Service, Congress has only passed all 12 appropriations bills on time on four occasions since fiscal year 1977. In extreme cases of disagreement, this can lead to a shutdown of the federal government, such as the 16 day closure in 2013.
Shutdown is a general term, in reality the lack of an appropriations bill in 2013 led to a partial closure of the federal government. All nonessential departments and employees were furloughed, resulting in around 800,000 federal employees prohibited from working. At the U.S. Department of Transportation (DOT), about 18,000 employees were furloughed, around one third of its total workforce. According to a plan released by DOT in December 2016, any future lapse in annual appropriations would lead to over 19,000 furloughed staff, mostly from the Federal Aviation Administration and the Federal Transit Administration. The plan allows staff working in life and safety positions, positions funded through means other than annual appropriations, and positions supporting lawful continuation of other functions to continue to work. The Federal Highway Administration, the Federal Motor Carrier Safety Administration, the Saint Lawrence Seaway Development Corporation, and the Working Capital Fund would see no furloughs a they are funded through either multi-year appropriations, indefinite appropriations, or contract authority, not the annual appropriations process.
During the 2013 shutdown, the U.S. Department of Commerce (DOC) saw a closure of most services and activities provided by the International Trade Administration as well as complete shutdown of services and activities at the Bureau of Economic Analysis as well as the Economic Development Administration, among others. DOC's export enforcement activities continued. DOC released a plan in 2015 addressing any future lapse of Congressional appropriations. The plan exempts employees engaged in "military, law enforcement or direct provision of health care activities," employees whose compensation is financed through sources outside of annual appropriations, and employees who protect life and property from furlough. Because their employees do not fall under the exempt categories, most services and activities provided by the International Trade Administration would be closed, while the Bureau of Economic Analysis and the Economic Development Administration, among others, would be completely shut down.
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While shutdowns happen (in fact they have happened 18 times since 1976), more often than not Congress will prevent them by passing a resolution extending the current levels of government spending for a brief period to give themselves more time to work out a deal. Congress has passed one of these stop gap measures, colloquially referred to as a Continuing Resolution (CR), in every fiscal year for over two decades, as the last time all 12 appropriations bills were passed prior to the new fiscal year deadline was 1996.
Although fiscal year 2017 (FY17) began on October 1, 2016, the federal government has yet to pass a full year's appropriations bill and has instead been operating on a CR for seven months. Due to outside influences, like the 2016 presidential election, or disagreements, like those pertaining to programmatic funding levels, FY17 has required three CRs, the first of which passed on September 30, 2016 and the most recent passed on April 28, 2017, funding the federal government through May 5, 2017. While CRs are often signed into law just minutes before a government shutdown, Congress has also used them strategically to address problems beyond general appropriations.
As the CR is a funding bill, Congress can use it to deny funding to the enforcement of certain sections of the federal code. For example, the December 2016 CR included language forbidding the enforcement of controversial hours of service (HOS) provisions for commercial motor vehicle operators. The CR fixed a drafting error made in the fiscal year 2016 omnibus and required that the two off-duty periods from 1 am to 5 am and the 34-hour restart provisions would only be enforced should a report by the Inspector General find that there are statistically significant improvements to all outcomes related to safety, operator fatigue, driver health and longevity, and work schedules of drivers operating under the more restrictive hours of service rules.
While Congress has taken advantage of the art of the CR this fiscal year, as of May 3, 2017 it seems likely the April 28 CR will be FY17's last. Congressional leadership announced on April 30 that they came to an agreement over an omnibus package to complete a full fiscal year of funding. The House passed the omnibus by a vote of 309 to 118 on May 3 and the Senate is anticipated to approve it prior to the May 5, 2017 deadline set by the latest CR.
Blakey & Agnew, LLC is a public affairs and
communications consulting firm based in
Washington, DC.
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