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“THE SHUTDOWN OF THE FEDERAL GOVERNMENT” mentioning the Department of Interior was published in the Senate section on pages S19333-S19336 on Jan. 2, 1996.
The publication is reproduced in full below:
THE SHUTDOWN OF THE FEDERAL GOVERNMENT
Mr. STEVENS. Mr. President, I had hoped to stay in Alaska. I have been in Alaska and had a very interesting visit. I intended to spend the rest of the week, but due to a call I received from my good friend from New Mexico, Senator Domenici, I have returned so I can confer with him about matters on the Balanced Budget Act of 1995.
I have come to the floor today to talk a little bit about this shutdown. I think there have been some statements in the press, unfortunately, made without knowledge of the past history of these lapses in appropriations.
For those Members who are interested, I have spoken on the floor before about the work of James P. McGrath, who is the analyst in American national government, in the Government division of the Congressional Research Service. He has issued a series of bulletins on this whole subject of lapses in appropriations and the shutdown of the Federal Government and the effects on the Federal work force.
I find it very interesting. It has been pointed out in his report that from fiscal year 1962 to fiscal year 1981, in the 2 decades preceding the opinion of Attorney General Civiletti, who was President Carter's Attorney General, that the General Accounting Office found interruptions in agency fundings took place 32 times. Mr. McGrath reports that,
Such lapses appear to be the rule, rather than the exception, according to GAO, which noted that from 1961 to 1980, ``85 percent of appropriations bills for Federal agencies have passed after the start of the fiscal year.''
The reason we now have a different circumstance is that in a landmark opinion in 1980, just prior to leaving office, Attorney General Civiletti issued an opinion concerning the Anti-deficiency Act, and Mr. McGrath's report states that ``Prior to that landmark 1980 decision, Federal agency managers, while cognizant of the anomaly of continuing to operate during a lapse of appropriations, and while concerned about the legal implications thereof, did precisely that.'' I am still quoting from this report:
They did so under the belief that ``Congress does not actually intend that the Federal Government shut down while the agencies wait for enactment of appropriations or the passage of a continuing resolution.''
Now, what has changed? In 1981, as I said, the Attorney General issued this opinion. The problem that we have now is that notwithstanding the substantial interruptions of the past--and, Mr. President, let me clear that up, too, while I am at it, because we have a very good chart that has been made by the CRS, and I ask unanimous consent that it appear in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. STEVENS. In fiscal year 1978, which was really the calendar year 1977, Congress had a lapse from the 30th of September until the 13th of October, the next lapse was from the 31st of October until the 9th of November, and the next one from the 30th of November through the 9th of December.
In other words, Mr. President, in 1977, during the term of President Carter, there were three lapses, substantial lapses. In 1978, for fiscal year 1979, again there was a substantial lapse, from September 30 until October 18. As a matter of fact, lapses as we have indicated have been the rule rather than the exception. The difference is this year we have the great problem of the fact that the President has vetoed five bills, five appropriations bills, a continuing resolution, and the debt ceiling and has decided to put pressure on the Congress by sending people home. I find that very unfortunate, and I think it is harming a lot of people, people who do live from paycheck to paycheck, as Senator Dole has said, people who really need their income.
They are people who work on an annual salary basis, Mr. President. They are people who are going to get paid anyway. They have been paid--
no Congress has ever failed to pay an employee who is subject to a lapse in appropriations, and both leaders have said this is not going to happen this time. Why in the world should we send them home? Why does the President send them home?
I take the position that there is no nonessential Federal employee. If they are not essential, they should not be on the payroll to start with. And we are looking at the opinion of an Attorney General in interpreting the problem of the Antideficiency Act, and that is why we are all in this situation.
I believe that we should all, the President and the Congress, get together and agree that what Congress did before the Civiletti opinion was right. Congress presumed, the managers presumed that Government would go on, that employees would be paid, and in fact they were paid. This President has taken the unprecedented action of borrowing from the trust funds of the Federal retirement plans. As chairman of that committee, I am going to make a report one of these days as to what actually happened in terms of that. But we have not reached the point where we have a crisis in Government due to the failure to have funds to operate. Everybody knows that. We have not reached the point where the debt ceiling act is really putting the pressure on the President to do what he has done. As a matter of fact, in my judgment, it is not something the President alone should bear. The Congress bears some of the responsibility here, too. And we have to find a way to put these people back to work.
They are people who live as I used to live when I worked in the Department of Interior years ago with a family of five small children. We could not have gone from one paycheck period to another paycheck period without having some help.
This is a most unfortunate situation for Government employees. I have been chairman of the subcommittee on Government employees in Federal service this year, and I was before for 7 years. I have served on it now for a very long time in the Senate. But I say to the Senate and to the Congress and to the President, these people are public servants. They have been employed to work for the Government. They have not done anything wrong. They are going to be paid when this is all over. There is no reason for them not to be called back to work.
I say that as strongly as I can. There is no reason for these people not to be called back to work. It is absolutely essential that we end this situation where the only pressure between the Congress and the President is being felt down at the level of the employee who cannot work or cannot exist without his or her paycheck every pay period. That is something we must face up to. It is, in my judgment, a sad, sad follow-on to the opinion of the Attorney General that I mentioned that was issued in 1980.
There has been one other thing brought to my attention this morning, Mr. President, and I thank Liz Connell of my office for bringing this to my attention, and Phil Baker-Shenk of the Senate Indian Affairs Committee. The two of them this morning have mentioned that the lack of the continuing resolution means the Interior appropriations bill has not been passed. By the way, we hope that bill will be sent back to the President again. It is one of the ones he vetoed. But the lack of funding for the Interior Department is now going to have a substantial impact on American Indians and Alaska Natives. Native American self-
determination contracts and self-governance compacts operate, Mr. President, on a calendar-year basis. That is the reason that until now it has not been a matter of great concern. Until December 31, the funds on which the tribal organizations operated these programs were there. Beginning today, however, these organizations have no money to operate or to pay employees.
This is the situation where Congress, under what is known as Public Law 93-638, authorized the BIA and the IHS to contract with Indian and Native organizations to run the entities that assist our aboriginal people in this country. The organizations receive funds under contracts or compacts with the BIA and the IHS. As of December 31, those funds expired.
The great problem now is--and we need to get rulings from the BIA and the IHS on this, I believe--we do not believe they are Government contractors in the usual sense. As far as I am aware, no backpay promise has been extended to Federal contractors like building security guards or truck drivers. But tribal contracts and compacts have been understood by law to be different from Federal procurement contracts, because tribes stand in the shoes of the Federal agency, assuming responsibilities for activities and programs formerly carried out by the Federal Government for the tribes. Tribal contracts and compacts have also been considered to be different from Federal privatizing contracts because the tribal contracts and compacts maintain and enhance the ongoing government-to-government relationship between tribes and the United States.
These people are people who are carrying out the work of Government in connection with the organizations that assist American Indians and Natives. For instance, child care, job training, and provision of health care services--programs that do not flow through the normal process of the Health and Human Services appropriations--come through the Interior appropriations bills to the BIA and IHS, and then go out to these agencies that conduct programs for American Indians and Alaska Natives.
The BIA and the IHS apparently have no solution to how we are going to get money to these contract entities that actually hire the people who are doing this work, which is essential. If these people were still on the Federal payroll, they would have been deemed essential by the bills we passed before the end of the year. Now, I do want everyone to be aware of the fact that their phones are going to ring off the hook if they live in areas that have American Indians or Native populations, because they are going to wake up to the fact today that the moneys to run their contract entities and their contracting operations expired on December 31, 1995. To make matters worse, there is currently no provision for employee back pay or operating expenses for these 638 contractors.
That is another reason I am on the floor. It is another reason I have come back from Alaska, to try to find a solution. Many, many Alaska Natives are employed by or receive funds that they are entitled to through the 638 contractors who are in fact Alaska Native organizations.
Mr. President, I am quite hopeful that we can find a way to deal with this. I wish to assure my friends from Virginia, I heard what they said. I hope that we would work together in good faith to find some way around this. But it is not a one-sided thing to me.
I would say to the Senator from Virginia that when I was home I talked to many, many people who are being affected by this inaction of Congress.
Not one of them asked me to come back here and try to change the course that we are on. They asked me to come back here and find out why Congress and the administration--together--have allowed this hiatus to develop as far as Federal employees being on the job. They are going to be paid anyway.
I am sure the Senator from Virginia has heard the same concerns from his constituents that I have heard from mine. Not one of them has failed to ask me, ``Why aren't you letting those people work if you are going to pay them?''
I believe this problem has come about because of our failure to recognize that Civiletti's opinion was wrong. The President and the Congress, prior to Civiletti's opinion, assumed that we did not intend this stupid result and, therefore, it did not take place.
We have to find some way to reverse the Civiletti opinion, and that is what the bill that the distinguished Senator from Virginia and I cosponsored and was offered by Senator Dole does. I am hopeful the House will pass that bill. At least it will take care of a portion of the problem we face and certainly is something that must be done very soon.
It will not, unfortunately, take care of the problem I mentioned about Indians and Alaska Natives. That is something that comes because of a failure to have a continuing resolution for the Interior appropriations bill and is something that must be addressed rather quickly, because, there again, some of the most indigent people in this country are American Indians and Alaska Natives. They should not be hung out to dry because of this battle between the executive branch and the Congress, in which I support the congressional position, as I am sure the Senator from Virginia does, but it is our job to find a solution to eliminate this hiatus.
Exhibit 1
TABLE 2.--APPROPRIATIONS FUNDING GAPS: FISCAL YEARS 1977-1995
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Fiscal year Date gap commenced \1\ Full day(s) of gaps Date gap terminated \2\
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1977................................. Thursday 09-30-76...... 10--Friday through Monday 10-11-76 second Sunday. 1978................................. Friday 09-30-77........ 12--Saturday through Thursday 10-13-77 second Wednesday.
Monday 10-31-77........ 8--Tuesday through Wednesday 11-09-77 second Tuesday.
Wednesday 11-30-77..... 8--Thursday through Friday 12-09-77 second Thursday. 1979................................. Saturday 09-30-78...... 17--Sunday through Wednesday 10-18-78 third Tuesday. 1980................................. Sunday 09-30-79........ 11--Monday through Friday 10-12-79 second Thursday. 1981................................. [none] 1982................................. Friday 11-20-81........ 2--Saturday, Sunday.... Monday 11-23-81 1983................................. Thursday 9-30-82....... 1--Friday.............. Saturday 10-2-82
Friday 12-17-82........ 3--Saturday, Sunday, Tuesday 12-21-82
Monday. 1984................................. Thursday 11-10-83...... 3--Friday, Saturday, Monday 11-14-83
Sunday. 1985................................. Sunday 9-30-84......... 2--Monday, Tuesday..... Wednesday 10-3-84
Wednesday 10-3-84...... 1--Thursday............ Friday 10-5-84 1986................................. [none] 1987................................. Thursday 10-16-86...... 1--Friday.............. Saturday 10-18-86 1988................................. Friday 12-18-87........ 1--Saturday............ Sunday 12-20-87 1989................................. [none] 1990................................. [none] 1991................................. Friday 10-5-90......... 3--Saturday, Sunday, Tuesday 10-9-90
Monday. 1992................................. [none] 1993................................. [none] 1994................................. [none] 1995................................. [none]
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\1\ Gap commenced at midnight of the date indicated.
\2\ Gap terminated during the date indicated because of the enactment of a full-year continuing resolution or another short-term continuing resolution.
Mr. WARNER addressed the Chair.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I ask unanimous consent that I may proceed in morning business 3 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, I do not dispute what my distinguished colleague from Alaska said. When I made reference to the need to recognize that there is an entirely added class of individuals that is suffering as a consequence of this shutdown, they are not Federal employees. It is the infrastructure in the greater Metropolitan Washington area, primarily Virginia, of persons being affected by this shutdown and losing in the same manner as others, and there is no restitution in sight for them.
Mr. President, I am going to ask unanimous consent to print in the Record the assurances that the distinguished majority leader, Mr. Dole, has given this Senator and others from time to time about restitution of pay to Federal employees. But there is no restitution that is going to the infrastructure of hotelkeepers and innkeepers and all others who are trying to work their way through this crisis at a time when Congress has not been able thus far to resolve the problem with the President.
Again, I strongly believe that we have to cool the rhetoric in Congress and, as I said earlier, do the best we can to give support to our leadership on this side of the aisle and that side of the aisle, to work with the President to resolve this thing.
Mr. President, I ask unanimous consent to print in the Record the assurances to which I referred earlier in my remarks.
There being no objection, the material was ordered to be printed in the Record, as follows:
U.S. Senate,
December 18, 1995.Hon. Bob Dole,Majority Leader, U.S. Senate, Washington, DC.
Dear Mr. Leader: During the last furlough of government employees, you and Speaker Gingrich signed a letter indicating your commitment to retroactively restoring any lost wages, which was done after the last Continuing Resolution was passed.
As we are now in another shutdown, and even closer to Christmas, I would appreciate it if you would once again indicate your position in writing. Even though the number of furloughed employees has dropped since last time, it is at least as disruptive to those who are not now at work. Your letter was a morale booster during the last furlough, and my furloughed constituents need all the positive influences possible now.
As was the case before, I stand ready to assist you in any way to resolve this latest shutdown, and I appreciate your concern for our federal employees.
Sincerely,John Warner.
____
Congress of the United States,
December 20, 1995.Hon. John Warner,U.S. Senate
Hon. Frank R. Wolf,Hon. Constance A. Morella,Hon. Tom Davis,U.S. House of Representatives.
Dear Colleagues: Because of your interest in the ongoing budget negotiations and your strong support for federal employees, we wanted to take this opportunity to reaffirm our letter of November 10, 1995, in which we made clear that employees furloughed through no fault of their own should not be punished.
It is unfortunate that President Clinton has chosen to veto appropriations bills that would have funded the salaries of federal employees at the Departments of Justice, State, Commerce, Veterans Affairs, and Housing and Urban Development, as well as independent agencies such as the Environmental Protection Agency. Similarly, procedural objections by Democrats have prevented the funding of salaries at the Department of Labor, HHS and Education.
The direct result of those actions is that furloughed federal employees at those particular agencies cannot be paid. However, we would like to reaffirm our commitment to restoring any lost wages for federal employees in a subsequent funding bill.
Thank you for your continued and strong leadership on behalf of federal workers.Newt Gingrich,
Speaker of the House.Bob Dole,
Senate Majority Leader.
____
Governor George Allen Calls on President, Congress To Stay at Work
Until Job Is Done
Balanced Budget Critical to Economic Health
Richmond.--Governor George Allen today said that Congress and the President should work until they can reach a balanced budget agreement to balance the budget in seven years. The following is the Governor's statement:
``Today, for the second time in as many months, nearly a quarter of a million federal workers--many of whom live in Virginia--are on furlough. For the sake of these workers--and all Americans--it's time to put an end to the merry-go-round and complete the work on an honest bill that will balance the federal budget.
``It would be cruel for President Clinton and Congress to go off to enjoy their holidays with the budget still unresolved and folks left wondering when and if they are going to be furloughed again.
``But the worst cruelty is the price all Americans will pay if Washington fails to complete the long-awaited agreement to put us on the path to a seven-year balanced budget. A balanced budget means lower interest rates on home mortgages, automobiles, student loans, and even the interest paid by states and localities ($548 million debt service savings for Virginia alone; $75 million for Norfolk and $42 million for Virginia Beach). It means we stop piling more debt onto our children and grandchildren (a child born this year immediately inherits a lifetime tax bill of $187,150 to pay interest on the national debt).
``The Republican Congress made a good start with the Seven-Year Balanced Budget Act that the President vetoed. It was a tough bill that got the job done, and in the process overhauled the failed welfare system, provided critical tax relief to working Americans, and freed states from Washington's Medicaid mandates that have been threatening to bankrupt us.
``It is past time for the President to come to the table with an honest budget proposal. And it is essential that any agreement reached not just shift costs to the states, as would the per capita cap on Medicaid the President has proposed. The states can make the most of scarce federal dollars only if they have real freedom, and real flexibility as provided in the new MediGrant program in the Seven Year Balanced Budget Act.
``Virginia and virtually every other state passes and lives within a balanced budget year after year--I submitted another balanced budget just yesterday. It's been 27 years since we saw a balanced budget from Washington. Roll up your sleeves, stay at work, and get the job done!''
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Government Shutdown Affecting Contractors
Impact of Shutdown will be felt by Contractors. Federal employees are not the only group that will be effected by a shutdown. Thousands of companies which are federal contractors will be impacted the same, if not more, due to the uncertainty, inconsistency, and risk.
Shutdown/Startup is Costly to Government. Shuting down a contract for a few days and restarting the function adds cost to the government. Government laws require that contractors divide all their costs evenly among all government contracts. If there are changes in the indirect costs and overhead rates, which will occur if employees cannot be directly charged to a contract for a day's work, those costs will be spread across all government contracts. Even a 1 day shutdown can alter rates for the entire year.
Payments to Companies may be Delayed or Not Paid. For-profit companies depend on revenues for services rendered, in order to remain in business and continue employing individuals. A company who performs for the government during a shutdown runs the risk of not being paid or having to wait for payment beyond the time when accounts payable are due. For example, employees are paid on a set schedule and subcontractors require payment in a timely manner. Even if the government does not pay or delays payment, the accounts payable still must be made. This disruption cuts into operating funds and potentially profits, negatively affecting the financial health of the company.
Private Companies may have to Layoff Employees. Many companies working as contractors to the federal government operate on very small profit margins (2%-4%) and their overhead rates remain very low in order to stay competitive. These companies cannot afford to carry employees for an extended period of time who are not directly billable to a contract, because those expenses go into the overhead rate. Therefore, if a shutdown occurs private sector employees may be laid off, because a company cannot afford to keep idle employees on the payroll.
Delays in New Systems, New Solutions will Occur. The mission-critical systems that are a priority to move to completion will be halted and deadlines slip, if the government shuts down. Congress and agencies have priority projects such as new intelligence tools or peacekeeping systems or critical databases that are expected to be delivered in a short deadline. If the government stops working, federal employees are requiring contractors, in many cases, to stop working as well. This puts a hold on project completion.
Claims and Disputes Likely will Result from Inconsistencies. Federal contracts have a system whereby contract claims or disputes can be adjudicated. This system could be overloaded with cases of inconsistent or inappropriate handling of contracts, due to a shutdown. The result of increased case loads is greater operating costs to the government, unanticipated payments for settlements in future years, and loss of productivity for employees spending time on the case.
Mr. STEVENS. Mr. President, the Senator did not intend to end my comments, did he?
Mr. WARNER. Mr. President, I understood the Senator was finished.
____________________
