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Can We Agree That Shutdowns Don’t Work?

Yesterday President Trump unceremoniously capitulated to Nancy Pelosi in the shutdown negotiations. Continuing in a long line of Republican shutdown failures, the president agreed to reopen the government with no funding for his pet wall project. Although the new funding agreement lasts only three weeks and the president has hinted that he may shut down the government again next month if Democrats fail to allow funding for the wall, there would be little point to repeating a failed strategy. Republicans need to face the reality that shutting down the government is not a viable strategy for achieving policy goals.

It hasn’t always been that way. There were gaps in federal funding in the 1960s and 70s, but the situation changed with President Carter. Carter’s attorney general, Benjamin Civiletti, issued a legal opinion citing an obscure law that said that government employees were not allowed to work until Congress agreed to pay them.

The first modern government shutdown occurred in 1981 under President Reagan. Congress fell short of the Gipper’s demand for spending cuts so he vetoed a spending bill. The shutdown lasted three days until Congress passed a continuing resolution that gave them time to reach a permanent agreement. A series of shutdowns in the 1980s and 1990s usually ended quickly with either an agreement between the two parties or a continuing resolution that funded the government while the parties negotiated in good faith.

That changed in 1995 with a shutdown that lasted from December 16 to January 6, 1996. This was the first shutdown with the aim of bending one party to the other’s will. Republicans led by Newt Gingrich were attempting to negotiate a balanced budget deal with President Clinton. The 21-day shutdown was the longest on record until this year. It finally ended when the two parties agreed to a package of spending cuts and tax increases to balance the budget, but voters blamed Gingrich and the Republicans for the shutdown, which may have cost Bob Dole the 1996 election.

It was almost 20 years before the next shutdown, a scenario similar to Trump’s wall shutdown this year. Most of us probably remember the Obamacare shutdown of 2013. Following Ted Cruz’s lead, Republicans shut down the government for 17 days demanding a budget that did not fund Obamacare. The Democrats did not fold and Republicans finally agreed to a spending bill that included the Affordable Care Act.

Early shutdowns over minor points in a spending bill didn’t last long. But the nature of shutdowns changed when Republicans began attempting to use government shutdowns to force Democrats to pass legislation that they couldn’t pass otherwise. These shutdowns lasted longer than the old shutdowns with the two sides often not even negotiating. Invariably, they ended with Republican defeats. There is little room for negotiation when the demand is a yes-or-no proposition like repealing Obamacare or building a wall.

There is a simple reason that the Republicans tend to lose shutdown battles. It has less to do with the GOP’s lack of spine than with the mathematics of Congress. The bottom line is that shutdowns don’t change the number of votes that either side can marshal. If Republicans don’t have enough votes to pass a bill with the government open then they won’t have enough votes with the government shut down.

The Framers of the Constitution set up the government to make it difficult to pass bills. A bill can be blocked by a minority party controlling one house of Congress. Even when one party controls both houses of Congress, the minority party can block legislation through a Senate filibuster. It is almost essential for every bill to have at least some votes from the other party to become law, but the tendency of both parties today is to try to force through legislation on party-line votes. The result is a stalemate that benefits the minority party defending the status quo.

The assumption that the other side will spontaneously cave if the government is shut down has been a bipartisan problem. In January 2018, Democrats made a similar mistake and shut down the government for three days in an attempt to force the Trump Administration to extend DACA protections for illegal immigrants. The stalemate ended when Senate Majority Leader McConnell agreed to allow a vote on an immigration bill.

Shutdowns typically include the worst of both worlds for the party instigating the shutdown, especially for Republicans, who can be heard enthusiastically shouting, “Shut it down” at rallies and on social media. Voters who aren’t part of the base are not as happy to see government services interrupted as the party faithful so the party takes a hit in popularity along with losing the legislative battle. Despite Obamacare’s unpopularity, Republican approval plummeted to a historic low within a few days of the onset of the 2013 shutdown. Similarly, President Trump’s approval slipped into the 30s just before he caved in the most recent shutdown.

Add in the fact that shutdowns are expensive and there really is no conservative reason to pursue the strategy. By the estimation of President Trump’s economic advisors, the current shutdown was more than twice as expensive as estimated. Hundreds of thousands of federal workers will be getting paid for not working and closed federal agencies hampered private business.

For years, shutdown advocates were like communists who argued that real communism had never been tried. All that’s needed is to hold out a little longer and don’t fold, the shutdown Republicans would say. But the Trump shutdown was the longest on record and despite the president’s reputation as a fighter, he was no closer to funding his wall on Day 34 than he was on Day One.

President Trump is desperately trying to spin the deal to reopen the government as a victory, claiming on Twitter that it “was in no way a concession.” Likewise, some Republicans claimed that the 2013 shutdown was a moral victory or that it led to the Republican congressional victories in the 2014 midterms. In reality, both shutdowns were embarrassing failures for the GOP. If Republicans would like to trade moral victories for real ones, a change of strategy is in order.

One alternative would be for President Trump to declare a national emergency and claim the executive authority to appropriate the funds for the wall. If the president wants to see how low his approval rating can go and tie the wall funding up in court for the foreseeable future, declaring a national emergency would be the best course to take.

On the other hand, if Republicans would like to build a wall, a return to the methods of yesteryear is their best chance. Rather than daring the Democrats to say “no” to the wall, President Trump and the Republicans should make them an offer they can’t refuse. I detailed the terms of such an offer for comprehensive immigration reform earlier this month.

The only way that a Donald Trump will get a wall is with a bipartisan bill that has enough items from the Democratic wish list to win the support – or least stall the opposition of – Nancy Pelosi and Chuck Schumer. Democrats might well say “no” to a generous offer, but that’s no worse than the current situation and they will have their own voters to answer to if they reject a good deal.

We’ve spent the past ten years saying “no” to each other. The government and the country have become ever more divided in that time. Both parties have become more firmly entrenched, more extreme, and less willing to compromise.  

Now President Trump has the opportunity to change things. He can be like President Clinton, who tacked to the middle in the second half of his presidency and worked with Republicans to pass landmark bipartisan bills such as welfare reform, or he can follow the example of President Obama, who dug in an refused to work with the GOP, choosing instead to use his pen and phone to try to bypass Congress with his executive authority. The direction the president chooses will likely determine the fate of his reelection campaign.

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