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Chairman's Message

Government Shutdown #18 & Congress’ Constitutional “Power of the Purse”

Posted: October 5, 2013 at 8:49 am   /   by   /   comments (0)

markUncaphernewReviewing some of the commentary over the current government shutdown, one cannot help but be astonished at the woeful ignorance that exists about the basics of the U.S Constitution. For example, prior to the actual shutdown, the White House website featured a “We the People” petition advocating that “House Republicans be arrested for treason” for among other ‘crimes,’ “undermining the post office.” One collateral benefit of the shutdown is that this website has been disabled. Those behind this White House treason petition should review Article III, Section 3 of the Constitution, which sets a very specific standard for treason charges.

More relevant for the shutdown, however, is Article I, Section 9, Clause 7:

“No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.”

This section operates as a source of Congress’s “power of the purse.” Through it, the Constitution makes Congress the role of final arbiter of the use of public funds and gives Congress with a powerful tool to control or to limit spending by the federal government.

James Madison in The Federalist No. 58 elaborated on this: “The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of the government….This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect, every just and salutary measure.”

Supreme Court opinions have underscored this interpretation. In United States v. MacCollom (1976), the Court articulated an “established rule” that “the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.” The Court has held that “[t]he power reserved to Congress by the Appropriations Clause is “a most complete and effectual weapon” because “any exercise of the power granted by the Constitution to one of the other Branches of Government is limited by a valid reservation of congressional control over funds in the Treasury.” Office of Personnel Management v. Richmond (1990). See also Knote v. United States (1877). Additionally “authorization” of spending in law does not give the executive the ability to support programs, acts of appropriation are required.

Given this Congressional power to control Federal spending, it should not surprise that battles over appropriations have been a recurring source of conflict between the legislative and executive branches.

Since 1976, government spending impasses have produced 18 government shutdowns.[1]:

Shutdown #1: Sept. 30 to Oct. 11, 1976 – 10 days
Shutdown #2: Sept. 30 to Oct. 13, 1977 – 12 days
Shutdown #3: Oct. 31 to Nov. 9, 1977 – 8 days
Shutdown #4: Nov. 30 to Dec. 9, 1977 – 8 days
Shutdown #5: Sept. 30 to Oct.18, 1978 – 8 days
Shutdown #6: Sept. 30 to Oct. 12, 1979 – 11 days
Shutdown #7: Nov. 20-23, 1981 – 2 days
Shutdown #8: Sept. 30 to Oct. 2, 1982 – 1 day
Shutdown #9: Dec.17-21, 1982 – 3 days
Shutdown #10: Nov. 10-14, 1983 – 3 days
Shutdown #11: Sept. 30 to Oct. 3, 1984 – 2 days
Shutdown #12: Oct. 3-5, 1984 – 1 day
Shutdown #13: Oct. 16-18, 1986 – 1 day
Shutdown #14: Dec. 18-20, 1987 – 1 day
Shutdown #15: Oct. 5-9, 1990 – 3 days
Shutdown #16: Nov. 13-19, 1995 – 5 days
Shutdown #17: Dec. 5, 1995 to Jan. 6, 1996 – 21 days

Five of the first six shutdowns occurred when the same party controlled both houses of Congress and the White House. Half occurred while Ronald Reagan was President. Other than the Carter era shutdowns, each happened when each party controlled at least one house or the White House.

A broad range of issues have triggered shutdown, including naturally many spending questions. However, a number of non-spending issues have triggered impasses. Listeners of talk radio will note that one of the issues for shutdown #14 was the FCC’s “Fairness Doctrine.” Democrats wanted to continue it, but gave in on the issue. This policy change set the stage for the national syndication of Rush Limbaugh’s radio program within a year.

Each of the 17 prior shutdowns ended as a result of the give and take that produces compromise in the democratic process. That is what the Framers intended to happen.

Mark Uncapher
Montgomery County Republican Chairman