Impeachment on Collision Course With Possible Shutdown

October 31, 2019by Jennifer Shutt
House Speaker Nancy Pelosi (D-San Francisco) and Rep. Adam Schiff (D-Burbank) hold a press conference on Oct. 2, 2019 on the impeachment inquiry into President Trump. (Kirk McKoy/Los Angeles Times/TNS)

WASHINGTON — Congress could navigate a shutdown and a presidential impeachment inquiry if lawmakers and the Trump administration can’t reach an agreement on government funding during the next three weeks.

The two events haven’t overlapped before in the nation’s history. If that happens next month, however, roughly 2 million federal workers would get hit in their wallets as the holiday season begins, including staffers working on the impeachment proceedings.

Senate Minority Leader Charles E. Schumer on Tuesday preemptively blamed President Donald Trump.

“I’m increasingly worried that President Trump may want to shut down the government again because of impeachment,” the New York Democrat said. “I hope and pray he won’t want to cause another government shutdown because it might be a diversion away from impeachment.”

For their part, top Republicans have been accusing Democrats on a near-daily basis of focusing on impeachment rather than legislation, affecting not just appropriations but other priorities like a prescription drug pricing bill and the U.S.-Mexico-Canada trade pact.

“My friends in Democratic leadership insist over and over their focus on undoing the 2016 election will not keep them from the substantive legislation that American families need,” Senate Majority Leader Mitch McConnell said late last week.

None of the dozen fiscal 2020 spending measures have been enacted, and top appropriators aren’t particularly hopeful for resolution in the 10 legislative days left when both chambers are in session before Nov. 21, when current stopgap funding expires.

And unlike the 34-day shutdown that began last December, which affected about 40% of federal workers, a shutdown starting Nov. 22 would affect all Cabinet departments and congressional staff, just as they are about to receive their last paychecks before the holiday shopping season begins.

By contrast, last year’s shutdown didn’t begin until Dec. 22. The second-longest shutdown in history, a 21-day lapse, began Dec. 16, 1995. And in both instances, the Legislative Branch spending bill had already become law, sparing congressional staff.

That’s not the case this time. House employees could lose a week’s worth of November salary in their end-of-month Black Friday paychecks, if lawmakers don’t cut a deal before they leave town for the Thanksgiving recess.

Senate staff, who normally would be paid Dec. 5 for the last two weeks of November, could see their paychecks cut by more than half, and on Dec. 20 wouldn’t get paid at all if the shutdown persists.

Most federal agency employees would feel the pinch in their mid-December pay dates, typically Dec. 13 or Dec. 16. According to Office of Personnel Management shutdown guidance, payroll processing for pre-shutdown work is an “excepted” activity that continues during a shutdown.

During a shutdown, unless they voluntarily give up or donate salary, lawmakers would get paid in full thanks to Article 1, Section 6 of the Constitution and a permanent appropriation. That protection doesn’t extend to staff, who would either work without pay or be furloughed.

Because impeachment is a constitutional responsibility, lawmakers could continue working on the inquiry without violating the Antideficiency Act, which prevents agencies from spending federal dollars without congressional approval or above the amount appropriated.

“During a lapse in appropriations, Congress and the Executive may incur obligations to carry out core constitutional powers,” Julia C. Matta, the Government Accountability Office managing associate general counsel, wrote in February.

If a shutdown occurs, House committee chairmen as well as personal and leadership offices would have wide latitude to decide whether staff are “essential” or “nonessential,” based on criteria outlined in guidance issued by the House Administration Committee.

House staff working on the impeachment inquiry would be considered essential because they support lawmakers’ “performance of the constitutional responsibilities,” which include impeachment proceedings.

The Senate doesn’t have a similar document, but senators would likely use similar parameters to decide which staff continue working and which go home. Lawmakers in the past have had staff work a few days a week and furloughed on the others.

Either way, Hill staff and agency employees typically receive back pay after the shutdown ends, but the timing is determined by whenever legislation is enacted to compensate those workers.

President Bill Clinton was impeached in December 1998, well after his government shutdown battles with a GOP Congress in 1995-1996. All of the fiscal 1999 spending bills had already been wrapped up.

In the event of a shutdown this year, congressional leaders will have to focus on dozens of policy disagreements that have plagued fiscal 2020 spending bills, pulling attention away from the impeachment proceedings to some degree, experts say.

“There’s only so much Congress can do at once with the bandwidth they have in today’s day and age. And during a shutdown, for the Congress to continue to take up an inquiry in a serious way is very limited,” said James Wallner, a resident senior fellow in governance at the R Street Institute. “So the focus shifts to, ‘How do you end the shutdown?’”

Wallner suggested that Republicans’ insistence that the impeachment process is illegitimate could also lead to a lapse in funding.

“If members are sincere in their belief, or the president is sincere in his belief that this is a constitutionally invalid exercise of the House’s power … how in good conscience can they support funding for that exercise?” said Wallner, who previously worked as an aide to GOP Sens. Mike Lee of Utah and Patrick J. Toomey of Pennsylvania and the conservative Senate Steering Committee.

Molly E. Reynolds, a Brookings Institute senior fellow in governance studies, remains optimistic a Democratic House and a Republican Senate will avoid a shutdown — with one major caveat: ”President Trump could always throw a wrench into whatever plans Congress agrees to, as we saw at the end of last year.”

In late 2018, Trump was prepared to sign a stopgap bill before House GOP conservatives convinced him to make a stand on funding his prized border wall, triggering the longest shutdown in history. Refusing to sign that measure ultimately proved as futile as House Republicans’ refusal to back a continuing resolution six years ago in protest over the new health insurance exchanges established in the 2010 health care law.

The GOP persisted despite there being little chance of forcing Senate Democrats to pass, or President Barack Obama to sign, legislation to undo his signature legislative achievement. The shutdown also didn’t affect the rollout of the health exchanges, since most of the funding was mandatory and didn’t need appropriations.

Wallner, who was a Senate aide during the October 2013 shutdown, said there was a danger history could repeat itself if conservative Republicans convince Trump a shutdown is in his interest.

“It’s the fundamental dynamic that confronted Republicans in 2013” on the health care law, he said.

For now, top Republican appropriators are attempting to lower the temperature a bit, even if it means punting substantive spending progress into the new calendar year.

Senate Appropriations Chairman Richard C. Shelby has begun openly talking about a CR extending interim funding until a potential Senate impeachment trial is over. Such a trial, the Alabama Republican said, would take all the “oxygen out of the room” until the process is over.

Rep. Tom Cole, a senior House appropriator, said another shutdown under the Trump administration is unlikely — but he couldn’t rule one out, either.

“I don’t think we will get there,” the Oklahoma Republican said. “But the closer you get to deadlines, the more heated the political environment, and there’s always the chance that you can slip off the rails and something will go wrong.”

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