[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
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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
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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.
____________________