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Harvard Law School 1

Harvard Law School
Federal Budget Policy Seminar





Briefing Paper No. 10








Government Shutdowns








Puja Seam
Brad Shron






Last updated: May 4, 2005





2

I. F
UNDING
L
APSES AND
G
OVERNMENT
S
HUTDOWN

A. What Leads to Funding Gaps

Under current statutory law and federal constitutional law funds may not be drawn on the
U.S. Treasury or obligated by federal officials unless appropriated by law.
1
The regular
activities of most federal agencies are funded by annual appropriations contained in the thirteen
regular appropriations bills. In the event these regular appropriations bills are not passed by the
beginning of the fiscal year, October 1, Congress relies on temporary or interim funding most
often in the form of one or more continuing resolutions.
2
The failure to pass regular
appropriations bills and continuing resolutions after the beginning of the fiscal year leads to a
funding gap or funding lapse (used interchangeably in this paper).
3
Depending on the number of
regular appropriations that have yet to be enacted, funding gaps can lead to partial shutdowns of
affected agencies or even a complete federal government shutdown. What it means for a partial
or full government shutdown to occur is discussed in Part I.B of this briefing paper.

(i) The Frequency of Delays in Enacting Appropriations and the Adoption of Continuing
Resolutions


Delays in passing regular appropriations bills have been a consistent problem in the last
several decades. In every year during the twenty-five year period between fiscal year 1952 and

1
U.S. C
ONST
., art. I, § 9, cl. 7 (explaining what is often referred to as the Appropriations Clause); The
Antideficiency Act, 31 U.S.C. 1341 (2000) (barring agencies from continued operations in the absence of
appropriations). For a full discussion of the features and legislative history of the Antideficiency Act, see Cong.
Research Service, Federal Budget, Accounting, and Financial Management Laws: Summaries of Selected
Provisions 1-8, CRS report 96-626 (July 16, 1996).
2
A continuing resolution (CR) provides continuing appropriation in the form of a joint resolution. CRs usually fund
activities with restrictions such as not permitting new activities to be initiated and retaining existing conditions and
limitations on program activity. See Robert Keith, Cong. Research Services, Preventing Federal Government
Shutdowns: Proposals for an Automatic Continuing Resolution 1 (Oct. 18, 1999).
3
Funding gaps may occur on October 1 or they may occur any time a continuing resolution expires and another
continuing resolution or regular appropriations act is not enacted immediately after.
3
fiscal year 1976, Congress and the President were unable to enact all thirteen of the appropriation
acts on time with the exception of fiscal year 1953.
4
Congress responded to these delays by
increasing the length of time available to act on annual appropriation measures by moving the
start of the fiscal year from July 1 to October 1 in the Congressional Budget Act of 1974.
5

Despite these changes, there have been only four instances in which all thirteen of the regular
appropriations acts were enacted on time between fiscal year 1977 through fiscal year 2004.
6
See
Table I. Thus, continuing resolutions (CRs) were used almost every year to continue funding to
government agencies except in three fiscal years during this period.
7
The CRs ranged in number
from one to six except for fiscal year 1996 when fourteen separate measures were enacted to
provide continuing appropriation.
8


In this way, CRs, which date from at least as early as the 1870s, have been an integral
part of the annual appropriations process since the period following World War II.
9
There are
two main types of CRsinterim or full-year continuing resolutions. Interim CRs provide
temporary funding until a specific date or until the regular appropriations bills are passed. In
contrast, full-year CRs provide continuing appropriation through the end of the fiscal year and

4
See Keith, supra note 2, at 2 n.2 (explaining that the FY1953 regular appropriation measures were enacted after the
start of the fiscal year on July 1, 1952 continuing resolution were not used. A supplemental appropriation measure
for FY1953, section 1414 of P.L. 82-547 (July 15, 1952), resolved technical legalities arising from the delayed
enactment of appropriations).
5
See id.
6
The four years when the regular appropriations acts were enacted on time are fiscal years 1977, 1989, 1995, and
1997. See id.
7
At least one CR has been enacted each year since fiscal year 1954 through fiscal year 2004 except for in fiscal
years 1989, 1995, and 1997. In 1977, although all thirteen appropriations bills became law on or by the deadline,
two CRs were enacted to provide funding for certain unauthorized activities that had not been included in the regular
appropriation acts. See Keith, supra note 2, at 2; Sandy Streeter, Cong. Research Service, Continuing
Appropriations Acts: Brief Overview of Recent Practices 5 (Nov. 30, 2004).
8
See Keith, supra note 2, at 2.
9
See Streeter, supra note 7, at 5.
4
effectively are regular appropriations acts for the fiscal year.
10
Each type of CR has been used
depending on the level of conflict between Congress and the President over budgetary issues.

The GAO describes CRs from the 1960s as often shorter in length and duration as well as
less comprehensive in terms of the number of agencies for which it contained funding.
Beginning in the early 1970s, however, conflict between Congress and the President over budget
issues led to an increase in delay of enactment of the appropriations bills, and consequently, the
nature, scope, and duration of CRs began to change.
11
In contrast to earlier years, the fiscal year
1985 CR was 363 pages long and contained an authorization measure.
12
Moreover, in the 1980s,
often the final CR enacted would provide funding for the remainder of the fiscal year simply as
stop-gap funding in lieu of the regular appropriations acts.
13
A GAO Report from 1986
characterized the changed use of CR as significant:
Continuing resolutions have become lengthier and more complicated, and have had

longer durations. These temporary funding measures have faced impediments, and their

enactment has been delayed as they have become the vehicle for unfinished legislative

business and detailed appropriations provisions. As such, they have contributed to
prolonging
congressional
debate, funding uncertainty, and, in some instances, delays in

payments to recipients of government programs.
14


Once again, as the political climate changed in fiscal years 1988 to 1995, there was relative
agreement on budget priorities and appropriations acts passed more readily such that CRs were
more limited and used mainly to provide interim funding for briefer periods.
15
See Table I.

10
For a more detailed explanation of CRs, see Streeter, supra note 7, at 8-9.
11
See Streeter, supra note 7, at 7.
12
G
EN
. A
CCT
. O
FF
., A
PPROPRIATIONS
: C
ONTINUING
R
ESOLUTIONS AND AN
A
SSESSMENT OF
A
UTOMATIC
F
UNDING
A
PPROACHES
, R
EPORT TO THE
C
HAIRMAN
, C
OMMITTEE ON
R
ULES
, H
OUSE OF
R
EPRESENTATIVES
3 (Jan. 1986)
[hereinafter GAO A
PPROPRIATIONS
].
13
See Keith, supra note 2, at 2.
14
See GAO A
PPROPRIATIONS
, supra note 12, at 3.
15
See Streeter, supra note 7, at 7.
5
T
ABLE
1. R
EGULAR
A
PPROPRIATIONS
B
ILLS
E
NACTED
B
Y
D
EADLINE AND
CR
S
, FY1977-2004


Party in Control of
Congress:
Regular Appropriations Bills:
Fiscal
Year
Presidential
Administration
Senate
House
Approved
by Oct. 1
Enacted in
CRs
CRs
Enacted
1977
Ford D D 13 0
2
1978
Carter D D 9 1 3
1979
Carter D D 5 1 1
1980
Carter D D 3 3 2
1981
Carter D D 1 5 2
1982
Reagan R D 0 4 4
1983
Reagan R D 1 7 2
1984
Reagan R D 4 3 2
1985
Reagan R D 4 8 5
1986
Reagan R D 0 7 5
1987
Reagan R D 0 13 5
1988
Reagan D D 0 13 5
1989
Reagan R D 13 0 0
1990
G.H.W. Bush
D
D
1
0
3
1991
G.H.W. Bush
D
D
0
0
5
1992
G.H.W. Bush
D
D
3
1
4
1993
G.H.W. Bush
D
D
1
0
1
1994
Clinton D D 2 0 3
1995
Clinton D D 13 0 0
1996
Clinton R R 0 0
13
1997
Clinton R R 8 0 0
1998
Clinton R R 1 0 6
1999
Clinton R R 1 0 6
2000
Clinton R R 4 0 7
2001
Clinton R R 2 0
21
2002
Bush D R 0 0
8
2003
Bush R R 0 0
8
2004
Bush R R 3 0
5
Source: Based on Streeter, supra note 7, at 6, table 2 (provides greater detailed information regarding these
numbers)

(ii) The Incidence of Funding Gaps

Historically, funding gaps are not uncommon. As discussed above, Congress has often
failed to meet deadlines for the completion of appropriations bills.
16
During the twenty-four
fiscal years between fiscal year 1977 and 2000, there were seventeen funding gaps. See Table II.
One or more f