Budget process quick fixes: Fixing the wrong problem

This week, Congress takes up another “continuing resolution” to keep the federal government running in the absence of annual appropriations bills. Although those bills were due by Sept. 30, at the time the Senate had not passed any of them. Even now, only four of the 12 have passed the full Senate and two major bills have not cleared the Senate Appropriations Committees.

These delays, which have become the rule rather than the exception, have spurred demands for changes in the budget process. In particular, advocates claim that these changes will avert the risk of government shutdowns when Congress and the president cannot agree upon appropriations bills. Senate Majority Leader Mitch McConnell (R-Ky.) is reportedly considering proposing two such changes to the continuing resolution as it moves through the Senate.

Unfortunately, these proposals are deeply misguided. They fundamentally misconceive what the problem is that drives appropriations delays. And they could actually make our budgetary process worse.

At the outset, it is crucial to understand why appropriations bills get delayed. This year, for example, it would be a mistake to imagine an industrious House finishing almost all its work on time and a lethargic Senate constantly procrastinating. This year’s appropriations impasse traces largely to one source: the wall. Democrats are determined not to fund President Trump’s border wall directly and not to provide funds that he could transfer into wall constructions. Republicans are equally determined that the wall go forward.

Because the wall is very expensive and would crowd out significant other spending, knowing whether it will be funded is crucial to setting funding allocations among the subcommittees that write the twelve annual appropriations bills. Thus, the Democratic House and the Republican-led Senate have been operating with very different allocations for their respective subcommittees. Without an agreed-upon bottom line for each of their appropriations bills, meaningful negotiations have been impossible.

One could legitimately argue that holding up decisions on funding the federal government over paying for a border wall that the president promised would not require U.S. government funds is a sign that our political system is broken. But it is not a sign that our budgetary system is broken. Under any system short of a dictatorship, when our elected leaders disagree about policy, they will struggle to pass legislation. No tweaks to the process will change that.

What budget process changes can do is change the winners and losers when inevitable impasses occur. Legislators and the president bargain about appropriations legislation the same way they bargain about every other proposal: They compare what would happen if the bill passes with what would happen if it does not. Changing the consequences of a failure to act may give one or the other party a stronger hand to get what it wants in the negotiations, but it does nothing to reduce the likelihood of an impasse.

A case in point is the “automatic continuing resolution” proposed by Sen. Rob Portman (R-Ohio), which Sen. McConnell reportedly may try to add to this week’s must-pass continuing resolution. This legislation would freeze all discretionary programs at the prior year’s level unless and until new appropriations legislation passes. It would make no allowance for inflation, for population growth, or for special needs such as wars, natural disasters, or the decennial Census.

In practice, this would force substantial reductions in what programs could do. If this occurred at a time of rising threats to our national security, it would put great pressure on defense hawks to make concessions in negotiations for annual appropriations. If it occurred instead at a time when defense needs are abating, it could embolden those Members to demand broad concessions from colleagues focused on domestic needs. The reverse would be true of advocates for domestic programs.

The bottom line would be that bargaining power would be systematically misallocated, going to whichever faction had the least current need. If that faction overplayed its hand, or if its counterparts could not swallow the final concessions demanded of them, the result would be mindless across-the-board reductions in government programs’ ability to meet the country’s needs. We already saw through sequestration how disruptive and illogical such reductions can be.

If anything, by making appropriations impasses seem more palatable, the “automatic continuing resolution” would encourage the rigidity and brinksmanship that blocks regular appropriations legislation. For several years in a row, we could well see discretionary programs subjected to hard freezes that erode their ability to serve the public’s needs. Eventually, the pent-up demand would force a large piece of “catch-up” legislation to restore some programs to the levels they need to function. Far from being a fiscally responsible, thoughtful means of matching our available resources to our national needs, this famine-and-feast process would combine damaging cuts to important public functions on the front end with an inevitable tsunami of special-interest projects on the back end.

The other legislation Sen. McConnell is reportedly considering, the budget process legislation proposed by Sens. Mike Enzi (R-Wyo.) and Sheldon Whitehouse (D-R.I.), is no better. It would create a fast-track process for enacting deep cuts in direct spending programs whenever predictions about the national debt in a budget resolution proved too optimistic.

This, too, would encourage rather than reducing obstructionism. If, for example, Congress passed an ambitious budget resolution reducing the deficit through a combination of spending reductions and revenue increases, opponents of the revenue measures could stonewall. Those doing so could deflect criticism that they are being fiscally irresponsible by pointing out that the deficit reduction package’s failure would lead to an automatic reconciliation bill the next year.

That bill, almost inevitably, would impose deep cuts on the largest federal entitlement programs, Medicare and Medicaid.

Our political divisions are real and are not susceptible to any legislative quick fixes. If Congress enacts ill-considered budget process changes pretending otherwise, it will likely make the consequences of those divisions even worse.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1