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First, a lesson about democracy, from the ancient past – back in B.C.  That is, Before Computers, or more precisely, Before the Internet (so although no factoid is Too Good To Check, this one is Impossible To Check).  I have a vivid memory of a wise grey talking head on the old public television “Agronsky and Company” program – someone so smart and seasoned that I highly respected his judgment – who was fresh back from a stint on the 1972 presidential campaign trail.  This wise person held forth at length on what he saw, eventually coming to his grand conclusion, which was something very much like:  “In all of my years of covering election campaigns, I have never seen such enormous crowds, such enthusiastic crowds, such committed crowds.  So I am absolutely certain, beyond any shadow of a doubt, that George McGovern will be the next President of the United States.”

The lesson in democracy, should it be less than obvious, is that there can be a large, enthusiastic, and committed minority.  In fact, with our polarized, ideological, and nearly equally divided population, such impressive minorities are the order of the day.  There is one on every important issue.  So it is no surprise that such a minority is prepared to stand its ground on the focal issue – the Patient Protection and Affordable Care Act, or “Obamacare” – in the current appropriations and government-shutdown scrap.  In fact, the major problem is determining which side is the minority and which side is the plurality – with, of course, a disengaged and loosely engaged undecided group holding the balance of opinion.

And so the federal government is shut down.  The press has taken to calling this a “partial shutdown,” as if to belittle it, because some federal employees are at work.  But you are aware that the law has always held that employees who protect safety and property, or funded by continuing law, have stayed on the job in every shutdown.  In fact, this is the most nearly total shutdown ever, because with not a single appropriations bill enacted, this shutdown touches every agency of government.

The executive branch is conflicted, caught in a “Catch-22.”  On the one hand, it wants the public to understand the adverse consequences of the absence of public services because of the shutdown.  But on the other hand, it is honor-bound to manage the agencies and the funding it has as efficiently as possible, and it would reflect poorly on its own performance and competence if it did not.  How this executive branch will balance its public responsibilities and its political ambitions will be for every citizen to judge.

All of this tells us that the current deadlock could hold for quite some time.  And there is even more reason why the stalemate could persist.  In particular, it can be in the decided interest of all of the combatants to hold out and refuse to reach agreement.  Particularly in the House of Representatives, but to a lesser degree also in the Senate, an increasing number of seats are untouchably in the column of one party or the other.  The nominee of the favored party is safe in the general election.  However, an incumbent office holder might not be safe in his or her own party’s primary election, typically dominated by the most ideologically extreme and committed party members – if the incumbent has compromised or collaborated with the other party, which would be essential to enact a solution to today’s shutdown into law.

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It seems we’ve stood and talked like this before…  The federal government approaches the beginning of the next fiscal year, and the shutdown crisis starts as if by clockwork.  But this time, something is different.  This time, the Congress has passed no appropriations bills at all.  Usually, at least the Pentagon and the Congress itself have been funded.

It brings back such memories.  In 1995 and 1996, the Congress (led by then-Senator Bob Dole (R-KN) and then-Representative Newt Gingrich (R-GA)) could not agree on appropriations (and a lot of other things) with then-President Bill Clinton (D).  The Congress did manage to pass the easy bills that year.  They funded themselves.  They funded the Pentagon.  They funded the Departments of Agriculture and Energy, and their transportation and water projects.  They also funded the Treasury (convenient, because by the time the drama had ended, the Treasury had had an enormous amount of work to do).  But the rest of the government – the Departments of Commerce, Justice, State, Interior, Labor, Health and Human Services, Housing and Urban Development, and Veterans Affairs, and the District of Columbia – went into the fiscal year without appropriations.

All of those agencies were shut down for five business days in November, and then again for 21 business days from December into January – this second episode, considering weekends and holidays, lasting for more than a calendar month.

The standout practical lessons from that time are pertinent today.  For one thing, there is statute and legal opinion regarding what an agency can and cannot do when unfunded.  You have heard about “essential” personnel.  The law does not use that term in this connection.  Rather, it states that employees may not report for work (no volunteers, no good Samaritans, no workaholics) unless their work is pertinent to “emergencies involving the safety of human life or protection of property,” in which case they are “excepted” from the general ban.  These excepted employees are perhaps the major category who would report for work even in the absence of appropriations.

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