Outlawing shutdowns? Senators float proposal for automatic CRs

As reforms go, this is … certainly one of them. As we hit the record for shutdown length in the post-Congressional Budget and Impound Control Act era, a group of Senate Republicans have a novel idea. Why not just create a perpetual funding authorization mechanism in case of budget disagreements?

What could go wrong?

It’s already been submitted today as S.104, with Rob Portman (R-OH) as its principal sponsor. It doesn’t have any text yet filed, but one assumes the “End Government Shutdowns Act” will stay as the title. All of its eight co-sponsors so far are Republicans, ranging from moderate Lisa Murkowski to conservo-libertarian Mike Lee. Chuck Grassley is the most senior so far to add his name to the list, and his comments in favor might carry the most weight on either side of the aisle.

So how will this bill “end government shutdowns”? The press release declares that the appropriations rules in Congress will change so that the act will “create an automatic continuing resolution (CR) for any regular appropriations bill or existing CR, keeping the federal government open when budget negotiations falter before key spending deadlines.” In order for this to work, the act would have to dispense with both majority votes in Congress and a presidential signature in order to authorize non-statutory spending.

Doesn’t that seem just a wee bit problematic, especially on constitutional grounds? Article I, Section 3 requires both chambers pass any bill and that a president sign it — or that a veto override takes place:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

There’s also Article I, Section 9:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

I may not be a Con-Law professor, but I don’t see much room for “automatic bills” in this text. Funding authorizations (as apart from mandatory spending under separate and permanent statues such as Social Security, Medicare, and interest payments) have to be authorized by each Congress in the form of a bill. A CR is just like any other bill or appropriation; the only difference is the time and scope involved. If they mean that a CR can be proposed and voted on, then there’s no constitutional issue, but that’s what we have now. Trump won’t sign a CR and Congress doesn’t have the votes to override his veto; ergo, shutdown. The EGSA wants to legalize no-vote, no-signature bills to prevent shutdowns under that scenario, which is about as far from the Constitution as one gets.

Furthermore, there’s another constitutional issue that applies in this instance. The original appropriation on which an auto-CR would be generated was passed by the previous session of Congress. A CR generated today to end this shutdown would have even less legitimacy, extending an appropriation made by a previous Congress without a vote by the people elected to succeed them.

Even ignoring all of the constitutional issues, it’s tough to see how this would help matters in budget debates. Congress already votes too often to kick cans down the road; with EGSA, they wouldn’t even need to cast a vote. They could sit back and watch as budgets just automatically renew, magically, every year or whatever period EGSA imagines. How many tough votes will members make when they can wash their hands of even the most basic of their responsibilities?

Grassley just took a shot at Donald Trump for risking the setting of new precedents with an emergency declaration — which is wise advice that Grassley should heed himself. What other kinds of legislation would they propose passing without votes and without presidential assent? Maybe we’d only know what was in them once they passed!

“You gotta negotiate, is the bottom line,’ Grassley tells CNBC’s Squawk Box. Indeed you do, Senator.

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