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By Cheryl Bolen
Sept. 28 — While House Speaker John Boehner's (R-Ohio) decision to step down may have averted a government shutdown for now, Republicans in Congress may want to think twice before attempting a shutdown in December that President Barack Obama is virtually guaranteed to win.
In an interview with Bloomberg BNA, John Cooney, a partner in the law firm Venable LLP in Washington, said he helped to develop the plan that was put in place in the early 1980s to ensure that the White House is able to win any shutdown battle against Congress, then controlled by Democrats.
Not only does the executive branch always win shutdown battles against the legislative branch, but the president always strengthens his political hand in the process, Cooney said.
“It was consciously designed to produce this result and it has worked every time it's been tried so far,” he said.
“It's institutional,” Cooney said. “And the people in Congress who are pushing for shutdowns never seem to profit from the experience of their predecessors,” he said.
Cooney was an assistant solicitor general and deputy general counsel at the Office of Management and Budget under President Ronald Reagan and helped steer agencies through a series of short-term shutdowns in the 1980s.
“I haven't seen the Republicans thinking of anything different that they'd do this time. I think they'll meet the same fate as their predecessors if they manage to generate an impasse,” Cooney said.
In 1982, it was obvious that there were going to be government shutdowns orchestrated by then House Speaker Thomas “Tip” O'Neill (D-Mass.), Cooney said. The Reagan administration decided it needed a program to help the executive branch manage, he said.
A plan was needed in part to ensure continuity of key functions, but also to ensure that the president would not feel threatened by a shutdown over fears that the government would cease working and he would be heavily criticized, Cooney said.
OMB staff went back to an opinion written in 1981 by then Attorney General Benjamin Civiletti, now a retired partner and past chair of Venable LLP, concerning what would happen in a shutdown of the Federal Trade Commission, Cooney said.
“The White House took the Civiletti opinion and turned it into an operational plan, the way the government actually would respond in the event of a shutdown and in the run-up to a shutdown,” Cooney said. “And that plan has governed the executive branch response to shutdowns ever since,” he said.
Agency plans have been updated along the way, certainly, but it is essentially the same mechanism OMB put in place in 1982, Cooney said.
“And it was consciously designed as a weapon that would allow the president to compete with Congress to win the public's support for his approach to the shutdown, and thereby generate good will and public support that he could use in the ultimate negotiations on the big-ticket appropriation items that were at the heart of the impasse between the executive branch and the legislative branch,” Cooney said.
It has worked this way in every major shutdown since then: the Reagan-era shutdowns of the 1980s, the Clinton shutdown in 1995 against then House Speaker Newt Gingrich (R-Ga.) and the Obama shutdown in 2013 against the Boehner-led House, Cooney said.
The White House never plans to shut down the government and would prefer to make progress on the big-ticket items that underlie its policy differences with Congress, Cooney said.
“But we set up the shutdown program so that the president would not be intimidated by the possibility that Congress might refuse to fund appropriations,” he said.
The plan assures the public that there will be continuity of services and that all important government functions will continue, Cooney said. A management mechanism was established for internal coordination within the executive branch to ensure this happens, he said.
In addition, the plan ensures there is public support for the president in his battles with Congress over budget priorities, which is done in several ways, Cooney said.
One is an aggressive public-relations campaign, where the White House will reach out to agencies to find the most important benchmarks that are going to occur during the period of a shutdown, Cooney said.
The White House will choose the events of most interest to the public—such as shutting down the Washington Monument or the National Zoo—and will sell the public on the president's conclusion that Congress has “failed in its primary constitutional duty, which is to provide funding to run the government,” Cooney said.
This plan “hasn't changed much in 33 years,” Cooney said.
In remarks to reporters on Sept. 24, White House press secretary Josh Earnest observed that Congress clearly was struggling to fulfill its basic obligations.
“[U]ltimately, it is the responsibility of Congress to pass a budget,” Earnest said.
The shutdown plan also takes advantage of provisions of law laid out in the Civiletti opinion to make certain, for example, that entitlement checks always go out on time, Cooney said.
Another component is what is known as a “soft shutdown,” Cooney said. If Congress and the president are negotiating a continuing resolution and funding is set to run out the next day, the question is whether the president tells agency heads to begin furloughing staff when it appears an agreement is imminent.
Under those circumstances, the president can call in the workforce on the morning when funds will be shut off and have them engage in “shutdown-related activities only,” Cooney said. This means federal workers can secure their offices and otherwise prepare for a closure of a few days, which allows them to easily resuscitate their work when funding is turned back on, he said.
This gives the president the ability to get maximum efficiency from the federal workforce by not furloughing them “precipitously” and possibly unnecessarily, Cooney said.
“And that's turned out to be an incredible, valuable tool for the president … to manage the workforce through these periods where there may be a continuing resolution, but it may not be delivered by midnight,” Cooney said.
There is a real cost that Congress pays for a government shutdown, which is that the president gains political capital to use on his budget priorities—in the case of Obama, lifting sequestration, Cooney said.
“It's not cost-less as it may first appear,” Cooney said. “The president has won every one of these battles; the OMB plan has done its job. It has not only allowed the president to keep the government running, but it's turned out to be an effective political tool for the president,” he said.
To contact the reporter on this story: Cheryl Bolen in Washington at email@example.com
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