This op-ed was originally published by The Hill.
The last real government shutdowns occurred in the winter of 1995. Two funding gaps that winter resulted in a total of 26 days of hiatus when President Clinton battled it out with Speaker Gingrich and Majority Leader Dole over spending and taxes. While threats of government shutdown raised their head in 2011, 18 years have passed since anyone has really experienced a shutdown.
I had a ring side seat during the last shutdowns. I would advise against a repeat of the winter of 1995.
Surely members who were present in 1995 would agree. But how many current members have actually experienced a real government shutdown? The answer is only 1 in 5 current members of the 113th Congress were also members of the 104th Congress when the shutdowns occurred. Specifically, only 88 members of the House of Representatives and 19 sitting senators were present for the last shutdown. Overall, only 107 of the 535 members might remember the challenge and heartaches of a real government shutdown. That sad experience was generally shared between the parties, slightly more than half of these current members are Democrats, with only 45 current Republicans.
Fortunately, the four current leaders, Speaker Boehner (R-Ohio) and Minority Leader Pelosi (D-Calif.), as well as Senate Majority and Minority Leaders Reid (D-Nev.) and McConnell (R-Ky.) were on the scene in 1995. They should know no one benefited, neither political party, from the experience. In the presidential and congressional elections that followed, Republicans lost 4 House seats, President Clinton won reelection over Senator Dole, and the Senate remained unchanged. The public’s respect for Congress was the real loss to our system of governance. The unfavorable rating of Congress increased over 5 points to 60 percent shortly after the 1995 shutdowns — an unfavorable rating the current Congress would enjoy since today that metric tops 80 percent.
Besides the politics, the implementation of the shutdown was a major negative. One current Republican member, then chairman of the Subcommittee on Civil Service of the House Oversight and Government Reform Rep. John Mica (R-Fl.), reviewed the 1995 shutdown in detail. Mica concluded that the execution of the shutdown by the agencies and the President’s Office of Management and Budget, was “disorganized and illogical, at best, and oftentimes chaotic.”
Today, talk of shutting down government this fall (or worse defaulting on our public debt) has once again entered the political lexicon unless certain “demands” are met. A key demand by some conservative Republicans is that President Obama’s signature health care legislation should be “defunded.”
While I agree with many of those who have concerns about provisions of the Affordable Care Act (ACA) , and wish health care reform could have been done with a more bipartisan approach that might have lessened the extreme divisions that exist today, to “defund” the law in any funding or debt limit bill or suffer the consequences of a government shutdown makes little sense to me.
First, most of the funding for the health care program is “entitlement” funding — subsidies for families and individuals who purchase insurance on the exchanges, expansion of Medicaid and various Medicare benefits. A continuing resolution (CR) deals with annually appropriated accounts, and even if some limited ACA authorized programs are subject to appropriations, eliminating their funding would not end the ACA at all. Congressional estimates of the programs subject to appropriations in the ACA total $100 billion over the next decade and $85 billion of that was simply to reauthorize programs that existed prior to the ACA.
While some appropriations will fund salaries of government employees who must administer the ACA, the 1995 government shut down illustrates that not funding government salaries does not guarantee employees will be furloughed. In 1995, initially the Social Security Administration furloughed over 61,000 employees due to lack of government funding. However, within a short time, nearly 5,000 were recalled to administer the processing and payment of social security benefits. The basis for this decision lay in a 1981 Civiletti opinion that ruled that benefit payments (entitlements) continue to be made and therefore the authority to administer those payments must also continue.
Second, even if “defunding” on a House-passed CR could make it out of the Senate, which is extremely unlikely, it would be vetoed by the president and the veto would not be overridden. Then the government would shutdown. But even more disconcerting for “defunding” proponents, if magically the president were to sign such legislation, because most of the funding for the law is not subject to annual appropriations, a government shutdown would be avoided but the key provisions of the ACA would continue. It would be a futile exercise; accomplishing nothing that advocates for defunding the law have sought.
The ACA should be amended if it is to achieve the goals of reducing health care costs, improving the quality of care delivered and ensuring coverage to those who are without health insurance. No legislation of this magnitude, impacting 20 percent of our economy could possibly be without fault. Had the legislation been considered under normal legislative procedures it is possible that some of the controversy surrounding it today would not exist. Would of, should of, could of is in the past. But “defunding” the program today will not accomplish the goal of those opposed to the law and it would further add chaos to implementing an already imperfect law this coming year.