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Preventing Government Shutdowns: Designing Default Rules for Budgets

79 Pages Posted: 13 Oct 2013 Last revised: 22 Oct 2015

David Scott Louk

University of California, Berkeley, School of Law, Students ; Yale Law School

David Gamage

Indiana University Maurer School of Law

Date Written: January 1, 2015

Abstract

In nearly every area of law and governance, default policies exist when lawmakers cannot pass new legislation — typically, the status quo simply remains in effect. To its detriment, U.S. budget making at both the state and federal levels lacks effective defaults. If a new budget isn’t passed by year end, there is no budget. This lack of defaults, coupled with a dysfunctional era of budgetary politics, has led to a number of recent high-profile and costly state and federal government shutdowns.

To date, legal scholarship has failed to address both the causes and costs of government shutdowns and near-shutdowns, and thus has also failed to consider possible solutions to prevent them. This Article seeks to fill this gap, exploring the history and sources of recent government shutdowns. Government shutdowns are the result of a perfect storm of contemporary politics: acrimonious budget making characterized by partisan brinkmanship, game-of-chicken-style negotiation strategies, and strong anti-tax sentiment among many conservative legislators. Drawing on political science work on legislative negotiation theory, this Article explains how these new fiscal politics result in regular budget negotiation failures, greatly increasing the risk of costly government shutdowns or near-shutdowns.

From this diagnosis of budgetary dysfunction, this Article advocates for the adoption of default budget policies to maintain government operations in the event that legislators fail to pass a timely budget. This Article explains how default budget policies might be implemented to avert shutdowns and to stabilize the budget-making process. Drawing upon the experiences of several states with automatic continuing appropriations provisions, and the federal experience with sequestration, we explore how default budget policies might work in practice. Properly enacted, default budget policies have the potential to mitigate the harmful consequences of budget negotiation failures and to restore sanity to this era of new fiscal politics.

Keywords: government shutdown, default budget, automatic continuing appropriations, fiscal politics, state budget, federal budget

Suggested Citation

Louk, David Scott and Gamage, David, Preventing Government Shutdowns: Designing Default Rules for Budgets (January 1, 2015). David Scott Louk & David Gamage, Preventing Government Shutdowns: Designing Default Rules for Budgets, 86 U. Colo. L. Rev. 181 (2015).; UC Berkeley Public Law Research Paper No. 2339314. Available at SSRN: https://ssrn.com/abstract=2339314 or http://dx.doi.org/10.2139/ssrn.2339314

David Louk (Contact Author)

University of California, Berkeley, School of Law, Students ( email )

Berkeley, CA
United States

Yale Law School ( email )

127 Wall St.
New Haven, CT 06511
United States

David Gamage

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

HOME PAGE: http://www.law.indiana.edu/about/people/bio.php?name=gamage-david

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