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A Thought on Using Continuing Resolutions to Govern

Earlier this month, we Growled on the shutdown of the federal government -- posting "thoughts" on October 3, October 4, and October 5, 2013.

Now what seems to be a major clarification, which does much to explain what the last three weeks have been about. First, in his weekend column, posted here at National Review Online and also here at Investor's Business Daily, Mark Steyn writes about "continuing resolutions (CR's), saying:

". . . Government by “continuing resolution,” a term foreign to most foreigners, ought to be embarrassing to any self-governing, not to say self-respecting, people. Instead, in the course of the “shutdown,” this repugnant phrase advanced to acronymic status — “CR,” as cable news had it, the pundit class lovingly caressing this latest insider jargon with their customary onanistic shiver. Presented as a resolution of the Obamacare/debt-ceiling standoff, the “CR” came, as the car dealers say, fully loaded — including a $174,000 payment to the widow of New Jersey’s multimillionaire senator Frank Lautenberg. Because, even when you’re saddling the next generation of Americans with another trillion bucks of debt, six-figure payouts to the relicts of the most exclusive rich man’s club in America is just the way it is.

"How can you “control” spending under such a system? Congress has degenerated into a Potemkin parliament, its ersatz nature embodied by those magnificent speeches senators give to themselves, orating for the benefit of TV sound bites into the cavernous silence of an empty room, an upper chamber turned isolation chamber. The “law of the land” means machinations and procedural legerdemain culminating in a show vote on unread omnibus fill-in-the-blanks pseudo-legislation to be decided after the fact by the regulatory bureaucracy."

A month earlier, at the Liberty Law Blog, Angelo Codevilla, a professor emeritus at Boston University, explains how "continuing appropriations resolutions subvert limited government." In his lede, Codevilla writes:

"The current battle over whether the 2013 Continuing Appropriations Resolution (CR) should de-fund Obamacare or not is the latest instance in which the CR mechanism is being used on behalf of a big government program the demise of which would be certain were Congress to play its Constitutional role by following its “regular order” as the keeper of the people’s purse – a role fundamental to democracy."

Here is what seems central to his argument:

"Until circa 1990, Americans had taken seriously the relationship between appropriations and democracy. House and Senate used to divide the Executive departments’ requests for funds and programs into multiple categories and sub-categories. Then many committees and subcommittees held hearings on each item, followed by “mark-up” sessions in which each would be modified and voted on. Thereafter, the full House and Senate would debate, amend, approve or disapprove them, one by one. This was “regular order” – more or less as described in civics books.

"This changed at first gradually in the 1980s, when Democrats (and Republicans) who were resisting the Reagan Administration’s efforts to trim government figured out that individual appropriations bills delayed until the end of the fiscal year could be rolled together into “omnibus” bills. These could be advertised as merely “continuing” the current year’s programs and spending levels. In reality, these all-in-one bills 1) protected current programs from scrutiny, amendment, or repeal 2) were stuffed with new favors, programs, provisions and priorities that could not have survived an open process. Since 1989, the Congress has followed mostly “regular order” only twice: in 1995 and 1997. Not since 2000 have the people’s representatives voted and taken responsibility for each of the government’s activities. In this century, the US government has been funded exclusively by single, omnibus “Continuing Resolutions” (CRs).

"This especially empowers Presidents and the interests aligned with him. So long as his allies control at least one house of Congress, they can make regular appropriations impossible, force the government to operate under CRs, and shape the CRs with the threat of a Presidential veto of any that contain items of which he disapproves. Then he can accuse those who insist on displeasing him with “shutting down the government,” without entering into the substantive merits of the programs at issue. Incidentally, CRs also empower governmental bureaucracies and their clients. Thus, they effectively transfer sovereignty from the people to the government."

Having lived in the D.C. area for much of the time discussed by Codevilla, I've observed much of what he writes about. However, Codevilla "connects the dots" in such a clear and understandable way that even your humble scribe can understand. In closing, Codevilla writes:

"This explains our two parties’ behavior in the current battle over whether the 2013 CR should fund Obamacare or not. Democrats, from President Obama on down, say that they will neither sign for nor vote for, respectively, any CR that does not fund Obamacare. The Republican leadership went along with the Republican grass roots’ demand to vote for a CR that funds the entire government but not Obamacare.

"But, and this tells the tale, while the Democrats unanimously accuse Republicans of thereby “shutting down the government,” the Republican leadership has been even louder in its accusation that the Republican grass roots elements who want to de-fund Obamacare are “shutting down the government.” Explaining this in terms of retail politics is straightforward: although Obamacare is unpopular with the electorate except for Democratic ideologues, it means money to the interest groups (insurance companies and the hospital lobby) courted by Republican leaders as much as by Democrats. Whether the Republican leadership’s attempt to distance itself from the entirety of its electorate is prudent or not is of passing interest. (emphasis in the original)

"More important is that the Republican leadership, by acquiescing in the practice of funding the government by Continuing Resolutions rather than by individual appropriations has emasculated the most virile means by which mankind has ever limited government."

The question, then, is whether the means for limiting government have been permanently emasculated, or whether members of the Tea Party will be able to breath new life into the Constitution and limited government. Thankfully, 18 Senators and 144 Representatives (links point to the "roll call" votes in the Senate and House of Representatives, respectively) still believe in limited government.


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