When it comes to coping with a government shutdown, the legislative and executive branches are certainly separate — but they may not be equal.
While much of the federal government could grind to a halt in the coming weeks because Republicans and Democrats in Congress can’t agree on spending cuts, Congress itself wouldn’t really shut down. As things currently stand, lawmakers would still get their paychecks and many of their aides would still come to work.
That’s because each member of Congress has wide latitude in determining which of his or her employees are “essential” and need to stay on the job.
“I would expect my staff would be at post,” said Rep. Gerald E. Connolly (D-Va.). “We’re here to serve.”
Ask House Republicans how the chamber would operate in a government shutdown and they will almost certainly respond that they don’t expect one to happen — unless those dastardly Democrats get their way.
“Our goal is to cut spending, not to shut the government down,” said Michael Steel, a spokesman for Speaker John A. Boehner (R-Ohio). “The only folks talking about a government shutdown are Washington Democrats intent on defending an indefensible status quo.”
But, spin aside, key lawmakers are already weighing how Congress could stay in business.
House Administration Committee Chairman Dan Lungren (R-Calif.) said that while his committee has been planning for the possibility of a shutdown, “we haven’t discussed it publicly,” lest Republicans be accused of wanting one. Committee spokeswoman Salley Wood said the panel “will issue guidance if necessary.”
PR strategy — and ideology — could play a role in determining which offices stay open.
“Different members would make different choices depending on their attitude toward the shutdown,” said Charles Tiefer, a former House deputy counsel and current law professor at the University of Baltimore. “A congressman who considers the shutdown vital to discipline government spending may make a gesture out of furloughing most of his staff, while a congressman who thinks the shutdown is merely political gamesmanship may keep his staff working.”
Congressional support agencies have to make their own determinations. A Library of Congress spokeswoman said roughly 600 of the library’s 3,600 employees “are considered necessary to meet our ongoing obligations” in case of a shutdown.
During the two shutdowns in 1995 and 1996, internal debates raged over just which people and activities were considered “essential.” The House Administration Committee sent members a letter advising them that essential staff meant “only those whose primary job responsibilities are linked directly to legislative responsibilities.”
Yet when the first shutdown began that November, many lawmakers decided to keep nearly all of their aides working, whether they were intimately involved in budget negotiations or just answering phones. (The latter employees stayed busy — Congress was deluged with angry calls during the shutdown.)
“All my office people are essential,” Sen. Joseph Biden (D-Del.) told the newspaper Roll Call at the time. “Everyone’s staying.”
The huge number of “essential” employees on the Hill reportedly irked officials at the White House, which had to work with a skeleton crew.
But not everything went on as normal. Sen. Alfonse M. D’Amato (R-N.Y.) initially planned to go ahead with hearings on the Clinton Whitewater matter — deeming the investigation “essential” — then changed his mind.
Lawmakers also planned to go on at least 25 official foreign trips in the midst of the second shutdown, but most were canceled after officials at U.S. embassies, which had to support the visitors despite operating with reduced staff, complained and the story hit the newspapers.
House-side restaurants, which were privately run, stayed open. Senate eateries did not, and Senate Republicans’ weekly policy lunch employed a new caterer — Domino’s.
The Senate’s library and barbershop were closed. Senators even had to (gasp!) operate the elevators themselves. The House gym stayed open — a decision endorsed by the attending physician of the Capitol, who made the case that it was vitally important for lawmakers to exercise.
The Architect of the Capitol furloughed roughly half its workforce. But the trash still got taken out.
As for lawmakers’ salaries, several tried to forgo their pay during the shutdowns but found the going difficult. Members technically had to take their paychecks, though some chose to donate them to charities or the Treasury.
This time around, lawmakers are trying to be more proactive. The Senate last week unanimously approved a measure that would prohibit members of Congress and President Obama from being paid during a shutdown. It would also ban them from receiving back pay once the shutdown ends.
The bill has yet to come up in the House, and Steel wouldn’t say whether the chamber would consider it.
After the last shutdown ended in 1996, Hill staffers who had worked received their pay retroactively, though there is no guarantee that would happen again. But even though lawmakers can decide that their aides should keep working, the aides themselves are barred by law — the 19th-century Anti-Deficiency Act — from volunteering to work without pay.
Regardless of whether anyone gets paid, it’s easy to argue that lawmakers and their staffs are indeed “essential.” After all, Tiefer noted, if Congress were unable to negotiate and pass a budget deal, “the shutdown would go on forever.”