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Exempt, not Essential

AFSCME would rather be working for you.

When several Secret Service and Capitol Hill police officers put their lives on the line in the tragic events of Thursday, several good reporters noted that these workers were not getting paid because of the current standoff caused by House Speaker John Boehner’s insistence on shutting down the government.  Unfortunately, some reporters said that the workers were on duty because they were “essential” personnel. Though they are essential, essential to their mission of protecting the president and Congress, all government workers are essential to the mission of their agencies. These workers are being ordered to work even though there is no authority to pay them, because of an attorney general’s ruling during the Carter administration. These workers are doing jobs that are exempted from the Anti-Deficiency Act prohibition of authorizing government expenditures without congressional budget authority.

Until President Jimmy Carter, when Congress failed in its duty to complete the federal budget process by Sept. 30, federal workers continued carrying out their assigned duties because they were executing the laws of the land passed by Congress. The interpretation was that Congress passed laws, for instance to ensure safe workplaces, food inspections, customs collections and air traffic control. Those laws were still in place, and so federal workers had to continue to perform the functions of those laws. But, Attorney General Benjamin Civiletti ruled that the 1884 Anti-Deficiency Act prohibited federal work to continue without congressional authority to pay for the work. The 1884 act was the outcome of battles in the late 19th century between Congress and the president over unauthorized spending.

However, Civiletti did carve out a set of exceptions to that rule. These are repeated in a memorandum from the Office of Management and Budget sent out on Sept.  17 this year to federal agency heads. There is certain work that is “excepted,” and those workers necessary to do the “excepted” work are asked to show up. They are not essential workers, because they are limited to doing only the “excepted” tasks. A principle carve out is for the protection from imminent harm to persons or property.

Unfortunately, the use of the term, “essential,” suggests that only some of government is essential. And, it further suggests that if the government is only doing essential work now, then why pay for the workers who are at home, since their work is not “essential.” Well, today was the first Friday of the month. To people who have been following the economy and the path of the “recovery,” it is the day when information on the jobs market is made public. We find out what is happening to the unemployment rate and how the economy is doing in creating jobs. Those numbers are essential information for policy formation—how do we know if economic policies are working in creating jobs without numbers to verify the path we are on? The employment numbers are also used in important data like computing the Gross Domestic Product, letting us know if the economy is growing or not. And soon, it will be time to get information on prices—the Consumer Price Index (CPI), used to determine if inflation is heating up, or there is deflation as in 2009. The CPI is also used to determine values in contracts and pension fund payments. These data are all essential. But they are not exempt from the Anti-Deficiency Act of 1884.

Lots of the government is essential to everyday tasks of Americans—whether it is establishing official time (think about your cell phone bill), predicting and giving advanced warning on storms (think about oil rig crews in the Gulf of Mexico), processing small business loans (without government guarantees, few banks want to take on the risk) or maintaining orderly and safe plane travel (think about traveling home to see grandma this Thanksgiving). Little in our daily lives functions without government setting, enforcing and maintaining orderly standards for trade (a task as ancient as the Roman empire), or providing safety (again a task of government as ancient as the Roman empire) or the building and maintenance of the infrastructure to travel or move the food and goods we need or the clean water we need to drink (again, a task of government as ancient as the Roman empire and its engineering feats of roads and aqueducts). The government and its functions are the mark of civilization over time; we think of those without government and order as “uncivilized.” The government is essential to our day having order.

There have been many times when Congress has failed to complete its task of getting the budget done on time. In some cases, this has involved deep differences over specific items, as the prolonged fights over the appropriations for the departments of Labor, Education and Health and Human Services because of Medicaid coverage of abortion services for poor women. But, in the past, it was because Congress could not reach agreement on these items. And Congress passed other appropriations so many parts of the government were funded. Because the issues were limited and Congress intended to do its job of getting budgets passed, these lapses in spending authority were short-lived, merely days and sometimes only a weekend.

This government shutdown is unique. This time House Republicans decided that rather than do their job, they would force an emergency by failing to pass the bills. The House of Representatives was in session just 60% of the time (106 out of 171 business days during the budget process) this year. It deliberately chose to not work, with the purpose of holding the entire government hostage to get something passed it could not achieve through the normal process. So, America’s children have to be denied access to Head Start programs, children seeking a “miracle” to cure their cancer cannot be admitted to the National Institutes of Health, small businesses needing loans cannot get their applications processed and small businesses needing to know if their contract with the government will get renewed are all being shut out of their government to let Speaker Boehner and his caucus change a law they do not have the votes to change. All of America's families must be locked out of their government so Boehner can get his way. This is the opposite of government; some might even say it's “uncivil.”

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