Mayor Vincent Gray finds legal way to avoid arrest for defying Congress over shutdown

Robert McCartney
Columnist September 28, 2013

I was deeply disappointed to learn that D.C. Mayor Vince Gray and the D.C. Council will not be risking jail time for daring to allow the city’s garbage collectors, librarians and street sweepers to continue working if the federal government shuts down.

Nothing would have done more to raise national public awareness of the District’s colonial status than to see the mayor or Council Chairman Phil Mendelson led off in handcuffs for insisting that the city be permitted to spend its own taxpayers’ money without Congress’s interference.

Robert McCartney’s column on local issues appears Thursdays and Sundays in The Post’s Metro section. View Archive

My hopes for such a confrontation rose when Gray told the White House on Wednesday that he was declaring all District employees “essential.” That meant the city would keep delivering routine services even if our dysfunctional national legislature didn’t approve a federal budget by midnight Monday.

Gray’s gutsy move seemed legally shaky on at least two counts. No mayor had declared everybody “essential” before. It was always just police, firefighters, schoolteachers and others easy to defend as doing crucial work.

Moreover, he was preparing to spend money without a federal appropriation. The penalty is two years in prison and $5,000 in fines.


District of Columbia Mayor Vincent Gray is arrested during an act of civil disobedience at an April 11, 2011 rally in front of the Hart Senate office building. (Bill O'Leary/Washington Post)

But D.C. politicians are so tired of the city’s second-class citizenship that they were ready for a rumble.

“If they want to arrest me for going to work, then come get me,” Mendelson said Friday. “This is a perfect opportunity to highlight the harm to the District in the current situation.”

The mayor, recalling an earlier act of civil disobedience, asked rhetorically, “Isn’t this how the country was founded?”

Imagine your average Kansan, Floridian or Alaskan learning of the mayor’s arrest when she checked the headlines on her mobile device at lunch.

“The District doesn’t control its own revenue?” she’d ask herself. “Isn’t that un-American? I’m texting my congressman immediately!”

What a nice fantasy.

Sadly, it turned out the chance that such a drama would occur was approximately that of Sen. Ted Cruz (R-Tex.) suddenly deciding Obamacare was okay after all.

Nobody’s ever been prosecuted under the relevant federal statute, called the Antideficiency Act. There’s no reason to think the Justice Department would decide to start charging people now.

President Obama, along with practically all Democrats and many Republicans, supports extending to the District the right enjoyed by the 50 states to spend money without waiting for Congress’s approval. It hasn’t happened because other Republicans are worried about giving up their power to use the District budget to push cherished causes, such as blocking abortion funding or helping people get guns.

The possibility of a legal confrontation receded further when some smart folks at the DC Appleseed foundation, a leading advocate of full democracy for the District, found a way to avoid the shutdown altogether. They pointed out Wednesday that the city had plenty of money in a contingency fund that had already been appropriated and was available for use in an emergency.

It required some study, but by Friday, lawyers for the mayor, Attorney General Irv Nathan and Chief Financial Officer Nat Gandhi agreed that it would be legal to tap that fund.

Approval from the offices of Nathan and Gandhi was significant, because they’ve been nervous about challenging the feds. The D.C. Council will consider a resolution and bill embracing that strategy Tuesday.

The contingency fund stands at $144 million, and it’s expected to rise to as much as $218 million when the final accounting is done for the fiscal year ending Monday. A senior adviser to the mayor estimated that would cover 14 days of salaries and other payments.

That means District residents need not worry about being able to renew a driver’s license, obtain a building permit or use a city rec center starting Tuesday.

The mayor, council and DC Appleseed all deserve applause for pushing forward the cause of securing budget autonomy for the District. If a federal shutdown does occur, the District can tell Congress for the first time: We won’t let your gridlock paralyze us.

“I’m just glad District elected officials are making plans for this. I love the fact that they want to stand firm, and I love the fact that we have a legal basis for it,” D.C. Appleseed Executive Director Walter Smith said.

Still, it would make more of a splash to defy the feds altogether. It’s conceivable the tea party faction in Congress is strong enough to force a shutdown longer than two weeks. That could exhaust the city’s contingency fund and possibly trigger a legal standoff.

So there’s still hope.

For previous Robert McCartney columns, go to washingtonpost.com/mccartney.

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