[Congressional Record Volume 141, Number 214 (Tuesday, January 2, 1996)]
[Senate]
[Pages S19333-S19336]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 THE SHUTDOWN OF THE FEDERAL GOVERNMENT

  Mr. STEVENS. Mr. President, I had hoped to stay in Alaska. I have 
been in Alaska and had a very interesting visit. I intended to spend 
the rest of the week, but due to a call I received from my good friend 
from New Mexico, Senator Domenici, I have returned so I can confer with 
him about matters on the Balanced Budget Act of 1995.
  I have come to the floor today to talk a little bit about this 
shutdown. I think there have been some statements in the press, 
unfortunately, made without knowledge of the past history of these 
lapses in appropriations.
  For those Members who are interested, I have spoken on the floor 
before about the work of James P. McGrath, who is the analyst in 
American national government, in the Government division of the 
Congressional Research Service. He has issued a series of bulletins on 
this whole subject of lapses in appropriations and the shutdown of the 
Federal Government and the effects on the Federal work force.
  I find it very interesting. It has been pointed out in his report 
that from fiscal year 1962 to fiscal year 1981, in the 2 decades 
preceding the opinion of Attorney General Civiletti, who was President 
Carter's Attorney General, that the General Accounting Office found 
interruptions in agency fundings took place 32 times. Mr. McGrath 
reports that,

       Such lapses appear to be the rule, rather than the 
     exception, according to GAO, which noted that from 1961 to 
     1980, ``85 percent of appropriations bills for Federal 
     agencies have passed after the start of the fiscal year.''

  The reason we now have a different circumstance is that in a landmark 
opinion in 1980, just prior to leaving office, Attorney General 
Civiletti issued an opinion concerning the Anti-deficiency Act, and Mr. 
McGrath's report states that ``Prior to that landmark 1980 decision, 
Federal agency managers, while cognizant of the anomaly of continuing 
to operate during a lapse 

[[Page S19334]]
of appropriations, and while concerned about the legal implications 
thereof, did precisely that.'' I am still quoting from this report:

       They did so under the belief that ``Congress does not 
     actually intend that the Federal Government shut down while 
     the agencies wait for enactment of appropriations or the 
     passage of a continuing resolution.''

  Now, what has changed? In 1981, as I said, the Attorney General 
issued this opinion. The problem that we have now is that 
notwithstanding the substantial interruptions of the past--and, Mr. 
President, let me clear that up, too, while I am at it, because we have 
a very good chart that has been made by the CRS, and I ask unanimous 
consent that it appear in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. STEVENS. In fiscal year 1978, which was really the calendar year 
1977, Congress had a lapse from the 30th of September until the 13th of 
October, the next lapse was from the 31st of October until the 9th of 
November, and the next one from the 30th of November through the 9th of 
December.
  In other words, Mr. President, in 1977, during the term of President 
Carter, there were three lapses, substantial lapses. In 1978, for 
fiscal year 1979, again there was a substantial lapse, from September 
30 until October 18. As a matter of fact, lapses as we have indicated 
have been the rule rather than the exception. The difference is this 
year we have the great problem of the fact that the President has 
vetoed five bills, five appropriations bills, a continuing resolution, 
and the debt ceiling and has decided to put pressure on the Congress by 
sending people home. I find that very unfortunate, and I think it is 
harming a lot of people, people who do live from paycheck to paycheck, 
as Senator Dole has said, people who really need their income.
  They are people who work on an annual salary basis, Mr. President. 
They are people who are going to get paid anyway. They have been paid--
no Congress has ever failed to pay an employee who is subject to a 
lapse in appropriations, and both leaders have said this is not going 
to happen this time. Why in the world should we send them home? Why 
does the President send them home?
  I take the position that there is no nonessential Federal employee. 
If they are not essential, they should not be on the payroll to start 
with. And we are looking at the opinion of an Attorney General in 
interpreting the problem of the Antideficiency Act, and that is why we 
are all in this situation.
  I believe that we should all, the President and the Congress, get 
together and agree that what Congress did before the Civiletti opinion 
was right. Congress presumed, the managers presumed that Government 
would go on, that employees would be paid, and in fact they were paid. 
This President has taken the unprecedented action of borrowing from the 
trust funds of the Federal retirement plans. As chairman of that 
committee, I am going to make a report one of these days as to what 
actually happened in terms of that. But we have not reached the point 
where we have a crisis in Government due to the failure to have funds 
to operate. Everybody knows that. We have not reached the point where 
the debt ceiling act is really putting the pressure on the President to 
do what he has done. As a matter of fact, in my judgment, it is not 
something the President alone should bear. The Congress bears some of 
the responsibility here, too. And we have to find a way to put these 
people back to work.
  They are people who live as I used to live when I worked in the 
Department of Interior years ago with a family of five small children. 
We could not have gone from one paycheck period to another paycheck 
period without having some help.
  This is a most unfortunate situation for Government employees. I have 
been chairman of the subcommittee on Government employees in Federal 
service this year, and I was before for 7 years. I have served on it 
now for a very long time in the Senate. But I say to the Senate and to 
the Congress and to the President, these people are public servants. 
They have been employed to work for the Government. They have not done 
anything wrong. They are going to be paid when this is all over. There 
is no reason for them not to be called back to work.

  I say that as strongly as I can. There is no reason for these people 
not to be called back to work. It is absolutely essential that we end 
this situation where the only pressure between the Congress and the 
President is being felt down at the level of the employee who cannot 
work or cannot exist without his or her paycheck every pay period. That 
is something we must face up to. It is, in my judgment, a sad, sad 
follow-on to the opinion of the Attorney General that I mentioned that 
was issued in 1980.
  There has been one other thing brought to my attention this morning, 
Mr. President, and I thank Liz Connell of my office for bringing this 
to my attention, and Phil Baker-Shenk of the Senate Indian Affairs 
Committee. The two of them this morning have mentioned that the lack of 
the continuing resolution means the Interior appropriations bill has 
not been passed. By the way, we hope that bill will be sent back to the 
President again. It is one of the ones he vetoed. But the lack of 
funding for the Interior Department is now going to have a substantial 
impact on American Indians and Alaska Natives. Native American self-
determination contracts and self-governance compacts operate, Mr. 
President, on a calendar-year basis. That is the reason that until now 
it has not been a matter of great concern. Until December 31, the funds 
on which the tribal organizations operated these programs were there. 
Beginning today, however, these organizations have no money to operate 
or to pay employees.
  This is the situation where Congress, under what is known as Public 
Law 93-638, authorized the BIA and the IHS to contract with Indian and 
Native organizations to run the entities that assist our aboriginal 
people in this country. The organizations receive funds under contracts 
or compacts with the BIA and the IHS. As of December 31, those funds 
expired.
  The great problem now is--and we need to get rulings from the BIA and 
the IHS on this, I believe--we do not believe they are Government 
contractors in the usual sense. As far as I am aware, no backpay 
promise has been extended to Federal contractors like building security 
guards or truck drivers. But tribal contracts and compacts have been 
understood by law to be different from Federal procurement contracts, 
because tribes stand in the shoes of the Federal agency, assuming 
responsibilities for activities and programs formerly carried out by 
the Federal Government for the tribes. Tribal contracts and compacts 
have also been considered to be different from Federal privatizing 
contracts because the tribal contracts and compacts maintain and 
enhance the ongoing government-to-government relationship between 
tribes and the United States.
  These people are people who are carrying out the work of Government 
in connection with the organizations that assist American Indians and 
Natives. For instance, child care, job training, and provision of 
health care services--programs that do not flow through the normal 
process of the Health and Human Services appropriations--come through 
the Interior appropriations bills to the BIA and IHS, and then go out 
to these agencies that conduct programs for American Indians and Alaska 
Natives.
  The BIA and the IHS apparently have no solution to how we are going 
to get money to these contract entities that actually hire the people 
who are doing this work, which is essential. If these people were still 
on the Federal payroll, they would have been deemed essential by the 
bills we passed before the end of the year. Now, I do want everyone to 
be aware of the fact that their phones are going to ring off the hook 
if they live in areas that have American Indians or Native populations, 
because they are going to wake up to the fact today that the moneys to 
run their contract entities and their contracting operations expired on 
December 31, 1995. To make matters worse, there is currently no 
provision for employee back pay or operating expenses for these 638 
contractors.
  That is another reason I am on the floor. It is another reason I have 
come back from Alaska, to try to find a solution. Many, many Alaska 
Natives are employed by or receive funds that they 

[[Page S19335]]
are entitled to through the 638 contractors who are in fact Alaska 
Native organizations.
  Mr. President, I am quite hopeful that we can find a way to deal with 
this. I wish to assure my friends from Virginia, I heard what they 
said. I hope that we would work together in good faith to find some way 
around this. But it is not a one-sided thing to me.
  I would say to the Senator from Virginia that when I was home I 
talked to many, many people who are being affected by this inaction of 
Congress.
  Not one of them asked me to come back here and try to change the 
course that we are on. They asked me to come back here and find out why 
Congress and the administration--together--have allowed this hiatus to 
develop as far as Federal employees being on the job. They are going to 
be paid anyway.
  I am sure the Senator from Virginia has heard the same concerns from 
his constituents that I have heard from mine. Not one of them has 
failed to ask me, ``Why aren't you letting those people work if you are 
going to pay them?''
  I believe this problem has come about because of our failure to 
recognize that Civiletti's opinion was wrong. The President and the 
Congress, prior to Civiletti's opinion, assumed that we did not intend 
this stupid result and, therefore, it did not take place.
  We have to find some way to reverse the Civiletti opinion, and that 
is what the bill that the distinguished Senator from Virginia and I 
cosponsored and was offered by Senator Dole does. I am hopeful the 
House will pass that bill. At least it will take care of a portion of 
the problem we face and certainly is something that must be done very 
soon.
  It will not, unfortunately, take care of the problem I mentioned 
about Indians and Alaska Natives. That is something that comes because 
of a failure to have a continuing resolution for the Interior 
appropriations bill and is something that must be addressed rather 
quickly, because, there again, some of the most indigent people in this 
country are American Indians and Alaska Natives. They should not be 
hung out to dry because of this battle between the executive branch and 
the Congress, in which I support the congressional position, as I am 
sure the Senator from Virginia does, but it is our job to find a 
solution to eliminate this hiatus.

                               Exhibit 1

                          TABLE 2.--APPROPRIATIONS FUNDING GAPS: FISCAL YEARS 1977-1995                         
----------------------------------------------------------------------------------------------------------------
             Fiscal year                Date gap commenced \1\    Full day(s) of gaps    Date gap terminated \2\
----------------------------------------------------------------------------------------------------------------
1977.................................  Thursday 09-30-76......  10--Friday through       Monday 10-11-76        
                                                                 second Sunday.                                 
1978.................................  Friday 09-30-77........  12--Saturday through     Thursday 10-13-77      
                                                                 second Wednesday.                              
                                       Monday 10-31-77........  8--Tuesday through       Wednesday 11-09-77     
                                                                 second Tuesday.                                
                                       Wednesday 11-30-77.....  8--Thursday through      Friday 12-09-77        
                                                                 second Thursday.                               
1979.................................  Saturday 09-30-78......  17--Sunday through       Wednesday 10-18-78     
                                                                 third Tuesday.                                 
1980.................................  Sunday 09-30-79........  11--Monday through       Friday 10-12-79        
                                                                 second Thursday.                               
1981.................................  [none]                                                                   
1982.................................  Friday 11-20-81........  2--Saturday, Sunday....  Monday 11-23-81        
1983.................................  Thursday 9-30-82.......  1--Friday..............  Saturday 10-2-82       
                                       Friday 12-17-82........  3--Saturday, Sunday,     Tuesday 12-21-82       
                                                                 Monday.                                        
1984.................................  Thursday 11-10-83......  3--Friday, Saturday,     Monday 11-14-83        
                                                                 Sunday.                                        
1985.................................  Sunday 9-30-84.........  2--Monday, Tuesday.....  Wednesday 10-3-84      
                                       Wednesday 10-3-84......  1--Thursday............  Friday 10-5-84         
1986.................................  [none]                                                                   
1987.................................  Thursday 10-16-86......  1--Friday..............  Saturday 10-18-86      
1988.................................  Friday 12-18-87........  1--Saturday............  Sunday 12-20-87        
1989.................................  [none]                                                                   
1990.................................  [none]                                                                   
1991.................................  Friday 10-5-90.........  3--Saturday, Sunday,     Tuesday 10-9-90        
                                                                 Monday.                                        
1992.................................  [none]                                                                   
1993.................................  [none]                                                                   
1994.................................  [none]                                                                   
1995.................................  [none]                                                                   
----------------------------------------------------------------------------------------------------------------
\1\ Gap commenced at midnight of the date indicated.                                                            
\2\ Gap terminated during the date indicated because of the enactment of a full-year continuing resolution or   
  another short-term continuing resolution.                                                                     


  Mr. WARNER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I ask unanimous consent that I may proceed 
in morning business 3 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, I do not dispute what my distinguished 
colleague from Alaska said. When I made reference to the need to 
recognize that there is an entirely added class of individuals that is 
suffering as a consequence of this shutdown, they are not Federal 
employees. It is the infrastructure in the greater Metropolitan 
Washington area, primarily Virginia, of persons being affected by this 
shutdown and losing in the same manner as others, and there is no 
restitution in sight for them.
  Mr. President, I am going to ask unanimous consent to print in the 
Record the assurances that the distinguished majority leader, Mr. Dole, 
has given this Senator and others from time to time about restitution 
of pay to Federal employees. But there is no restitution that is going 
to the infrastructure of hotelkeepers and innkeepers and all others who 
are trying to work their way through this crisis at a time when 
Congress has not been able thus far to resolve the problem with the 
President.
  Again, I strongly believe that we have to cool the rhetoric in 
Congress and, as I said earlier, do the best we can to give support to 
our leadership on this side of the aisle and that side of the aisle, to 
work with the President to resolve this thing.
  Mr. President, I ask unanimous consent to print in the Record the 
assurances to which I referred earlier in my remarks.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                                December 18, 1995.
     Hon. Bob Dole,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Mr. Leader: During the last furlough of government 
     employees, you and Speaker Gingrich signed a letter 
     indicating your commitment to retroactively restoring any 
     lost wages, which was done after the last Continuing 
     Resolution was passed.
       As we are now in another shutdown, and even closer to 
     Christmas, I would appreciate it if you would once again 
     indicate your position in writing. Even though the number of 
     furloughed employees has dropped since last time, it is at 
     least as disruptive to those who are not now at work. Your 
     letter was a morale booster during the last furlough, and my 
     furloughed constituents need all the positive influences 
     possible now.
       As was the case before, I stand ready to assist you in any 
     way to resolve this latest shutdown, and I appreciate your 
     concern for our federal employees.
           Sincerely,
     John Warner.
                                                                    ____



                                Congress of the United States,

                                                December 20, 1995.
     Hon. John Warner,
     U.S. Senate

     Hon. Frank R. Wolf,
     Hon. Constance A. Morella,
     Hon. Tom Davis,
     U.S. House of Representatives.
       Dear Colleagues: Because of your interest in the ongoing 
     budget negotiations and your strong support for federal 
     employees, we wanted to take this opportunity to reaffirm our 
     letter of November 10, 1995, in which we made clear that 
     employees furloughed through no fault of their own should not 
     be punished.
       It is unfortunate that President Clinton has chosen to veto 
     appropriations bills that would have funded the salaries of 
     federal employees at the Departments of Justice, State, 
     Commerce, Veterans Affairs, and Housing and Urban 
     Development, as well as independent agencies such as the 
     Environmental Protection Agency. Similarly, procedural 
     objections by Democrats have prevented the funding of 
     salaries at the Department of Labor, HHS and Education.
       The direct result of those actions is that furloughed 
     federal employees at those particular agencies cannot be 
     paid. However, we would like to reaffirm our commitment to 
     restoring any lost wages for federal employees in a 
     subsequent funding bill.
       Thank you for your continued and strong leadership on 
     behalf of federal workers.
     Newt Gingrich,
       Speaker of the House.
     Bob Dole,
       Senate Majority Leader.
                                                                    ____


  Governor George Allen Calls on President, Congress To Stay at Work 
                           Until Job Is Done


              Balanced Budget Critical to Economic Health

       Richmond.--Governor George Allen today said that Congress 
     and the President should work until they can reach a balanced 
     budget agreement to balance the budget in seven years. The 
     following is the Governor's statement:
       ``Today, for the second time in as many months, nearly a 
     quarter of a million federal workers--many of whom live in 
     Virginia--are on furlough. For the sake of these workers--and 
     all Americans--it's time to put an 

[[Page S19336]]
     end to the merry-go-round and complete the work on an honest bill that 
     will balance the federal budget.
       ``It would be cruel for President Clinton and Congress to 
     go off to enjoy their holidays with the budget still 
     unresolved and folks left wondering when and if they are 
     going to be furloughed again.
       ``But the worst cruelty is the price all Americans will pay 
     if Washington fails to complete the long-awaited agreement to 
     put us on the path to a seven-year balanced budget. A 
     balanced budget means lower interest rates on home mortgages, 
     automobiles, student loans, and even the interest paid by 
     states and localities ($548 million debt service savings for 
     Virginia alone; $75 million for Norfolk and $42 million for 
     Virginia Beach). It means we stop piling more debt onto our 
     children and grandchildren (a child born this year 
     immediately inherits a lifetime tax bill of $187,150 to pay 
     interest on the national debt).
       ``The Republican Congress made a good start with the Seven-
     Year Balanced Budget Act that the President vetoed. It was a 
     tough bill that got the job done, and in the process 
     overhauled the failed welfare system, provided critical tax 
     relief to working Americans, and freed states from 
     Washington's Medicaid mandates that have been threatening to 
     bankrupt us.
       ``It is past time for the President to come to the table 
     with an honest budget proposal. And it is essential that any 
     agreement reached not just shift costs to the states, as 
     would the per capita cap on Medicaid the President has 
     proposed. The states can make the most of scarce federal 
     dollars only if they have real freedom, and real flexibility 
     as provided in the new MediGrant program in the Seven Year 
     Balanced Budget Act.
       ``Virginia and virtually every other state passes and lives 
     within a balanced budget year after year--I submitted another 
     balanced budget just yesterday. It's been 27 years since we 
     saw a balanced budget from Washington. Roll up your sleeves, 
     stay at work, and get the job done!''
                                                                    ____



               Government Shutdown Affecting Contractors

       Impact of Shutdown will be felt by Contractors. Federal 
     employees are not the only group that will be effected by a 
     shutdown. Thousands of companies which are federal 
     contractors will be impacted the same, if not more, due to 
     the uncertainty, inconsistency, and risk.
       Shutdown/Startup is Costly to Government. Shuting down a 
     contract for a few days and restarting the function adds cost 
     to the government. Government laws require that contractors 
     divide all their costs evenly among all government contracts. 
     If there are changes in the indirect costs and overhead 
     rates, which will occur if employees cannot be directly 
     charged to a contract for a day's work, those costs will be 
     spread across all government contracts. Even a 1 day shutdown 
     can alter rates for the entire year.
       Payments to Companies may be Delayed or Not Paid. For-
     profit companies depend on revenues for services rendered, in 
     order to remain in business and continue employing 
     individuals. A company who performs for the government during 
     a shutdown runs the risk of not being paid or having to wait 
     for payment beyond the time when accounts payable are due. 
     For example, employees are paid on a set schedule and 
     subcontractors require payment in a timely manner. Even if 
     the government does not pay or delays payment, the accounts 
     payable still must be made. This disruption cuts into 
     operating funds and potentially profits, negatively affecting 
     the financial health of the company.
       Private Companies may have to Layoff Employees. Many 
     companies working as contractors to the federal government 
     operate on very small profit margins (2%-4%) and their 
     overhead rates remain very low in order to stay competitive. 
     These companies cannot afford to carry employees for an 
     extended period of time who are not directly billable to a 
     contract, because those expenses go into the overhead rate. 
     Therefore, if a shutdown occurs private sector employees may 
     be laid off, because a company cannot afford to keep idle 
     employees on the payroll.
       Delays in New Systems, New Solutions will Occur. The 
     mission-critical systems that are a priority to move to 
     completion will be halted and deadlines slip, if the 
     government shuts down. Congress and agencies have priority 
     projects such as new intelligence tools or peacekeeping 
     systems or critical databases that are expected to be 
     delivered in a short deadline. If the government stops 
     working, federal employees are requiring contractors, in many 
     cases, to stop working as well. This puts a hold on project 
     completion.
       Claims and Disputes Likely will Result from 
     Inconsistencies. Federal contracts have a system whereby 
     contract claims or disputes can be adjudicated. This system 
     could be overloaded with cases of inconsistent or 
     inappropriate handling of contracts, due to a shutdown. The 
     result of increased case loads is greater operating costs to 
     the government, unanticipated payments for settlements in 
     future years, and loss of productivity for employees spending 
     time on the case.

  Mr. STEVENS. Mr. President, the Senator did not intend to end my 
comments, did he?
  Mr. WARNER. Mr. President, I understood the Senator was finished.

                          ____________________