What Democrats Must Get Out of the Government Shutdown

How Dems can force the GOP to honor the deals they strike

How do you cut a deal with someone who refuses to honor their end of it?

That’s the issue bubbling under the surface of the current government shutdown. While most of the focus has been on the healthcare dispute between the parties, there is an even thornier issue that will complicate any potential resolution of the shutdown: why should the Democrats strike a government funding deal with the Republicans when the GOP has not honored the bipartisan government funding agreements they’ve made in the past?

No businessperson would enter into a contract that allowed the other party to unilaterally ignore elements of the deal. Democrats shouldn’t either. That’s why Democrats should insist that the resolution of this shutdown include permanent fixes to this problem. In my view, the Democrats have not done that yet. I’ll explain why below, and offer up a solution that would actually address the root of the problem Democrats need to solve.

The GOP’s History of Breaking the Deal

Congress must periodically pass a bill (or multiple bills) to fund the various programs and agencies in the government. Because the current filibuster rules in the Senate require 60 votes to pass such a bill, there must be bipartisan support for the bill in the Senate. That creates a dynamic where the minority party—currently, the Democrats—can secure some of their funding priorities in the bill in exchange for their votes. These are often things the other party doesn’t like.

Under Trump, the GOP has cut bipartisan deals and then reneged on them in three ways:

• Fast-track rescissions: If Congress passes a law directing the government to spend a certain amount of money on a program, and then the executive branch refuses to spend that money, that is an illegal “impoundment.” But there is a statutory exception. Under the Impoundment Control Act, the Administration can identify certain appropriated funds it wants Congress to rescind, and Congress can then approve that recission with a bare majority in both the House and Senate. In other words, while it takes 60 Senate votes to make a funding deal, it only takes 51 votes to break the deal. Historically, neither party took advantage of this option to pursue a partisan rescission because they knew it would blow up the entire concept of reaching a bipartisan funding agreement in the first place. But in July, for the first time in history, the GOP used a partisan rescissions process to cancel billions in funding for foreign aid and the Corporation for Public Broadcasting that were previously approved on a bipartisan basis.

• “Pocket” rescissions: Under the Impoundment Control Act, once the Administration identifies funds that it wants to rescind and sends those requests to Congress, a clock starts ticking. If Congress does not approve the rescission within 45 days, the administration must spend those funds. But there’s a complication. Many funding streams are annually appropriated, which means that Congress directs the administration to spend the money before the end of the fiscal year in September. By making a rescission request shortly before the end of the fiscal year—such that the standard 45-day congressional review period runs past the end of the fiscal year—the administration can say its hands were tied on spending the money because it had to wait for Congress. The Trump Administration recently did that with roughly $5 billion in foreign aid funding. To be clear, this type of “pocket” recission has been found to violate the Impoundment Control Act, and even the Roberts Supreme Court appears to acknowledge that. But the Supreme Court recently threw a wrench into the proceedings by suggesting that only the head of the federal Government Accountability Office (not private parties negatively affected by the withheld spending) has legal standing to challenge such an action in court.

• Unilateral funding freezes: The Trump Administration has also simply refused to spend money it is legally required to spend, without even attempting to go through any statutory rescissions process. It has done that with billions of dollars in funding for medical research and schools and healthcare (and did it in the first term with funding for Ukraine to defend itself against Russia).

The Shortcomings of the Democrats’ Proposed Solution

To their credit, Democrats have proposed a solution to the first issue in the alternative government funding bill they have introduced. As the Center on Budget and Policy Priorities (CBPP) lays out here, Democrats proposed modifying the statutory rescissions process so that it requires 60 Senate votes to approve a rescission, just as a funding bill requires 60 Senate votes now. That effectively blocks one party from using a purely partisan process to deviate from a prior bipartisan spending deal. That is a good fix that should be adopted.

But, to my eye, Democrats have not really addressed the second and third issues. As the CBPP piece explains, Democrats have proposed imposing additional legal obligations on the administration to try to force them to spend money in accordance with government funding bills. But the flaw in that approach is clear: what the administration is doing is already illegal. If the administration is currently willing to break the law and not spend money it is required to spend, then why would they feel like they need to follow some new law that really, really requires them to spend the money?

That’s why the key to addressing these abuses is not strengthening the obligation to spend but strengthening the punishment for breaking the existing law. As it stands now, the punishment for improperly withholding government spending is fairly toothless. If the administration loses in court, the judge can direct the administration to spend the money that it improperly tried to withhold. It’s essentially a risk-free bet for the Administration: they can try to withhold spending through all sorts of gambits and the worst thing that can happen to them after a lengthy legal process is that they have to spend the money. There’s no deterrence.

There is also the new problem that the Supreme Court appears likely to say that only the head of the Government Accountability Office can bring such lawsuits. While the head of the GAO is nominally nonpartisan—the President selects a nominee from a list of bipartisan recommendations, and the person serves a 15-year term and can only be removed for cause—it still raises concerns that this person is somewhat politically accountable to the administration that is trying to illegally withhold funds. We have already seen this administration try to remove disfavored officials “for cause” on extremely flimsy grounds, which has forced those officials to mount their own (potentially costly) legal defense in court. That prospect could deter the head of the GAO from robust enforcement. And indeed, despite finding that the Trump Administration has engaged in illegal impoundments several times, the GAO has never filed suit against the administration.

Therefore, my recommendation would be for Democrats to seek two things as part of any shutdown resolution:

• Much stiffer civil penalties for illegal impoundments Simply having to release the withheld money is not enough. The law should provide deterrence from trying to engage in these shenanigans in the first place. For example, Democrats could say that if a court finds that the administration knowingly impounded funds, the Director of the Office of Management and Budget (currently, Russ Vought) should face a hefty fine, the defunding of his office, and disbarment from future government service.

• Clarification that private parties can bring lawsuits for impoundments: To get ahead of any Supreme Court limitation on legal standing to bring such cases, Democrats should push for unequivocal language that private parties hurt by improperly withheld funding can bring a claim to release the funding and impose these stiffer civil penalties in federal court. Enforcement of this law should not fall solely on the shoulders of an individual who at least partially relies on the good graces of the administration they would have to sue.

I hope Democrats are able to use their current leverage to secure an extension of the expiring health insurance subsidies, which will cut costs for millions of working-class people. But the current government shutdown also offers them their best chance to address this other underlying problem, which, if left untouched, makes a mockery of the concept of a bipartisan government funding bill. Democrats should force the GOP to stand by the deals they make by imposing real accountability for straying from these agreements.