Shutdowns elsewhere?

Do other democracies ever suffer “shutdowns” of their governments due to failure to agree on a budget? I would offer a tentative “no”, at least in recent decades, because most political systems either have mechanisms forcing a change in government or a new election (in the case of parliamentary systems) or provisions that define a “reversion” other than (essentially, though not literally) zero.

As Erik Voeten, writing at the Monkey Cage, noted the case of Belgium, which in 2010 and 2011 was without a democratically legitimated government for 589 days. “Yet, budgets were passed, government workers were paid, and government services continued to be provided.”

In many other presidential systems (including those of many US states), the powers of the president include provisions to establish limits on what the congress can amend in budgets, and/or privilege the executive proposal in some way. Others–both presidential and parliamentary–have provisions for what would be, in Washington parlance, “automatic continuing resolutions”.

These various provisions would seem to make anything like what has happened this week in the USA–the eighteenth such incident since 1976–unlikely or even impossible.

Gary Cox, also at the Monkey Cage, offers an overview of the different sorts of rules used elsewhere to prevent shutdowns. He has a graph indicating the increased use around the world of what he terms, executive-favoring reversions. He also argues that the reversionary provision in place in the USA, whereby budgets go to zero until there is continuing or renewed authorization, is the “worst” kind “except for all the rest.”

I don’t agree with this argument. Normatively, it seems desirable to keep things going at the most recently approved levels until such time as all who are needed to agree can come up with some new level. Or so it seems to me. I also disagree with Cox’s point that “parliamentary regimes avoid the inefficiencies of government shutdowns, at the price of government instability.” As Gary certainly knows, actual government instability is by no means the norm in parliamentary systems. And that is so even if we replace the rather loaded term, “instability” by the rather more descriptive, (low) “cabinet durability”. Yet I don’t think failure to pass a budget is all that common in parliamentary systems, precisely because the consequences are substantial. But when it happens, there is the dual response of (1) an automatic continuing resolution (caretaker provisions) and (2) either a newly formed government or an early election. ((As in recent Dutch experience.)) These are not small points for the broader point Cox is addressing.

In all the online discussion occurring about the comparative politics of these matters (which is great to see, by the way!), Max Fisher makes reference to the Australian crisis of 1975 as a case of “shutdown”. He suggests it was only due to Australia’s continued acceptance of the British monarchy that the particular solution–the Governor General firing the Prime Minister when the latter could not obtain supply in the Senate–was possible. I am not sure about the specifics of his interpretation ((Some readers of this blog know the case well!)), but I would note that recourse to government replacement–and often, early elections– are inherent to parliamentary models, whether in the Commonwealth or not. Presidential systems, on the other hand, must either endure periodic deadlocks or have other constitutional or statutory mechanisms for giving privilege over budgets to either the executive, the congress, or the status-quo levels of spending. And it is probably safe to say that all currently active presidential constitution that are newer than the US–which is to say all of them–have differentiated budgets from ordinary legislation precisely to generate a reversionary outcome other than a shutdown.

27 thoughts on “Shutdowns elsewhere?

  1. Max Fisher’s (or his editor’s) choice of headline – “In the end, the queen fired everyone in Parliament” – is not strictly untrue but highly misleading.

    I imagine a non-Australian reader (present company excepted, of course!) would find the whole 1975 Dismissal crisis utterly confusing without some further (brief) explanation as to:

    (a) the difference between regular half-Senate elections and double dissolutions. Otherwise the contrast between what Whitlam and Fraser each wanted – and the fact that Kerr seems to have honestly believed he was “splitting the difference” – might be overlooked.

    (b) the Constitutional requirement of a prolonged deadlock on one or more Bills to allow a double dissolution, and the fact that Kerr/ Fraser (fortunately for them) had other Bills stockpiled that met the criteria: they had nothing to do with the deadlocked Supply Bills, and were never put to a joint sitting (indeed, I believe, vanished into legislative limbo) after the 1975 double dissolution. In other words, the dissolution was pretextual and if it recurred could easily have lasted indefinitely. Likewise, the argument that “It’s good that the Senate can force out an incompetent government mid-term” misses the point that the Coalition only had a Senate majority because two conservative State governments broke a quarter-century-old convention (which had been observed scrupulously since the Senate switched to PR in 1948) by replacing two Labor Senators with two declared Whitlam haters.

    Point (b) above is often overlooked by supporters of Fraser/ Kerr who point to the large electoral and parliamentary majority for the Coalition in 1975 as a ratification of their parliamentary tactics and of Kerr’s constitutional interpretation. “The system worked” only by accident. A future Governor-General facing a bicameral budget deadlock could find him or herself as helpless as Obama would be if faced with an anti-Islamic film-maker who’s not Internet-barred while on parole.

    In any event, the 1975 election result was a verdict not on constitutional interpretation but on the economy (which had plummeted under Whitlam – whether due to Labor’s incompetence, to the OPEC oil embargo, or both, is a matter of dispute) and on the desire for stability. A US analogy would be a combination of Watergate (where most voters lost interest in prosecuting Nixon once he resigned) and Bush v Gore (where only a small number of Democratic activists still cared about “Who really won Florida?” after Scalia and co stepped in).

    As Whitlam himself noted, when the Australian public were given a chance to vote directly on the Constitutional issues involved, in 1977, they ratified an amendment to prevent State parliaments replacing vacating Senators with their political opponents. A majority also supported a change to non-fixed Senate terms (it lost because it failed narrowly to carry four States).

    As a result of cases like 1975 and 2000 I’ve gotten very tired of the conservatives’ pea-and-thimble trick, of arguing both (I) “There’s no need to have a law formally forbidding X from being done. No one would ever dare attempt X because – even though, yes, technically, it is not explicitly outlawed – it is obviously wrong” and then, later, when the circumstances favour a different stance, (II) “But doing X is perfectly legal – there’s nothing in the Constitution that specifically forbids it – so how can it be wrong?”

  2. The headline is particularly and spectacularly inaccurate because:

    (1) a number of actors in the crisis, including Whitlam and Speaker Scholes, contacted the palace and were told the Queen had no role;

    (2) Kerr was exercising powers vested in the governor-general by the Australian constitution to the exclusion of the Queen; and

    (3) wot Tom says on the dissolution being grounded in bills apart from from the supply bills.

  3. I stand corrected. Alan is right. While Sir John Kerr was exercising royal powers (common-law prerogatives semi-codified as super-statutory powers by the Constitution), it is correct that – as Buckingham Palace’s letter reminded Gordon Scholes, the Labor Speaker who had asked the Monarch to intervene and reinstate Whitlam – “the Queen has no part” in decisions the Governor-General must make under the Australian Constitution.

    This is correct about some of the GG’s powers – especially those that Kerr exercised in 1975 against Ministerial advice – but not all. The Australian Constitution is all over the place as to whether the GG is a mere delegate of the Monarch in London, or an independent officer who happens to be hired and fired by the King or Queen.

    For example, the Constitution says that federal executive power is “vested in” the Monarch but “exercisable by” the GG “as the Queen’s representative”. Later sections give the Monarch power to retrospectively disallow Acts within 2 years after the GG has given Royal Assent to them. And laws restricting Privy Council appeals had to be signed by the Monarch personally.

    On the other hand, the powers to commission and dismiss Ministers, and to dissolve Parliament (both normal House elections, and double dissolutions) are vested in the GG alone and it is hard to imagine the High Court accepting that those clauses implying the GG is the Monarch’s proxy impliedly empower the latter to send a message days or weeks after a proclamation of dissolution is issued, disallowing it. Or that a reference to “the Queen’s Ministers of State for the Commonwealth” gives authorisation for HM to override the GG and the PrM on the selection of a Cabinet.

    The ambiguity of the Australian Constitution has given textual ammunition to both sides of the republic debate over who is Australia’s Head of State. Republicans say the Queen is (since she clearly outranks the GG) and, since she is not Australian, Australia needs a president if it is to have an Australian as Head of State. Monarchists reply that in most matters the GG can act legally autonomously from the Monarch whom he or she supposedly represents, and that the GG’s actions stand as final even if Buckingham Palace disagrees with them: therefore, they say, it’s the GG who is Australia’s Head of State and therefore we already have (and have had, at least for the past six to eight decades – initially against the vehement objections of Australian monarchists, it must be noted) an Australian as Head of State. Therefore, since there is no conceivable reason for supporting a republic other than to have one of one’s own countrypersons as Head of State, therefore the argument for an Australian Republic collapses.

    Max Fisher’s implication that Australians accepted the Whitlam dismissal as legitimate because it was done by the authority of the Crown is contestable (Robert Lacey made a similar argument in his book Majesty, IIRC). I should confess that I was in primary school at the time and completely missed the crisis other than that one day the PrM was Mr Whitlam and then it was Mr Fraser. (But I’d gotten used to the same thing with the US President being Mr Nixon one day, then Mr Ford, then Mr Carter). Anecdotal evidence (lots of it) that I’ve gathered since indicates that most Australians regarded a prompt election as validating whatever was done and washing away any constitutional quibbles about the process (shades of France 1962!). But had either Sir John Kerr or the Queen tried to intervene so as to postpone holding an election, the supposed authority of the Crown would not have helped make this a popular decision. On the other hand, had President Paul Hasluck[*] intervened in a way similar to Kerr’s, it would have been tolerated (indeed, may have provoked less class-based resentment from the Labor and union movements).

    [*] Hasluck was a former Liberal foreign minister who had been Kerr’s predecessor as GG. Another curious oddity of the Australian republic debate is that two of the three sides (monarchists and direct-election republicans) agree that letting The Politicians appoint a retired (gasp!) Politician as President would be intolerable. Yet those GGs who have been former MPs (McKell, Casey, Hasluck, Hayden) are widely regarded as having done the job well. I think Tony Abbott has argued somewhere that this is because former politicians see themselves as serving the Crown when they have the title “Governor-General” but would get puffed up with pride if they were given the title “President”. I have no idea if the President of the Senate or the President of the Liberal Party of Australia have ever discussed Mr Abbott’s theory with him.

  4. I don’t think many people in Australia saw it as a royal action or a royal crisis. Royal visits continued without incident.

    Several of Kerr’s long-term friends in the ALP refused ever to speak to him again. Kerr faced so many public protests that he resigned long before his term had run out.

    The one qualification is that both Kerr and Whitlam seem to have believed there was some chance of a royal intervention, presumably by either dismissing Kerr, reinstating Whitlam, or both. That was Kerr’s public justification for the more than faintly tacky business of having Fraser already at Government House, without Whitlam’s knowledge, while Whitlam was being dismissed. Fraser’s driver was told to move Fraser’s car to the back of the official residence where Whitlam would not see it. In retrospect it’s fairly clear that the queen was not prepared to take phone calls from either of them.

    Oddly enough, Fraser and Whitlam eventually became close friends.

  5. The U.S has no snap elections to discipline Congress members to vote on a budget. Isn’t a bit akin to what happened to California before the Democrats won more than 2/3rds majority in both chambers?

    Also the U.S Senate is the most powerful Senate in the democratic world. Most Senates just delay bills that are passed in lower houses.

    Also how does a parliamentary democracy like Norway pass budgets considering it is one of the only parliamentary democracies not to have the power to be dissolve early?

    I have always believed that politics is a lot like that saying from a girl named Emily: If you want a kitten, start off by asking for a horse first. This perhaps what is happening in Congress.

    Also fortunately, the U.S is not as incompetent as Italy when it comes to dysfunction and paralysis.

  6. @6, I would argue that the Italian Senate is more powerful that the U.S. Senate. While the U.S. Senate does have specific “one house” powers that are normally exercised (either by law or convention) by lower houses, the U.S. Senate cannot bring down a government like the Italian Senate can. With the current Italian election system, the Italian Senate is effectively the house that makes and unmakes governments as the Chamber will always have a commanding majority vested in one party.

    I believe in Norway, like most parliamentary democracies, the governing parties and their allies (I believe, but may be wrong, that Norway doesn’t always have majority governments) negotiate a budget and then pass one. With only one house to get a bill through and adults running most parties, it is probably only a matter of negotiating things and negotiating things early enough.

  7. The Washington Post list of shutdowns that was linked to is somewhat misleading. The vast majority of them (at least 12 of the 17, by a quick count) occurred during either Carter’s single term or Reagan’s first term. From the descriptions, it didn’t seem to be a big deal to anyone then to leave the government without a budget for a couple of days, even if it meant federal employees lost a day of pay of furlough. One budget shutdown occurred so that members of Congress could attend a barbecue at the White House.

    Some sort of fix seems to have been put in during Reagan’s second term to stop budgets from being chronically a few days late. The article doesn’t describe what it was (in New York state, the state legislature routinely passed budgets late, sometimes months late, as normal practice until shamed by the media, which normally ignores state politics, to start passing budgets on time).

    The seventeenth shutdown, in 1995-6, seems to have been different, at least in lasting 21 days and causing some disruption to government operations. So after the Cold War there seems to have been a shift to fewer shutdowns, but they are indicative of a genuine political crisis when they do occur.

    • Ed, I would agree with those points. There was also, as the article notes, a change in interpretation of something called the Anti-Deficiency Act in 1981 that made subsequent ones more significant than the ones under Carter or earlier presidents.

  8. My understanding is that countries that use a U.S. style presidential system generally (as distinct from French style systems where the president is a powerful, autonomous figure but the government still needs parliamentary confidence) fall into two categories. The first category is made up of countries in Latin America plus the Philippines, and the second category is made up of dictatorships.

    So how is the process handled in Latin America? In Brazil, members of the president’s staff (who are occasionally “caught” and fired) bribe congressmen to pass the budget.

  9. I’m not sure I’d agree with the proposition that the bribery scandal under Lula is a universal explanation of all budget approvals in Brazil or in Latin America generally. That is especially so because most Latin American democracies have automatic continuing resolutions built into their constitutions.

  10. Voters have rejected the abolition of the Seanad by a narrow margin. A simultaneous vote on the reform of the appellate courts was passed by a substantial margin however.

    http://m.bbc.co.uk/news/world-europe-24404157

    Of the major political parties, only Fianna Fáil opposed abolition, though like most opponents of abolition have proposed radical reform of the institution, seeing it as a check on government power.

  11. I don’t understand how an upper house which has no power at all over money bills, can delay other legislation for no more than nine months and whose membership includes almost 20% appointed by the prime minister, can be seen as a check on government power…

  12. @JD, virtually no-one supports leaving the Seanad as it is-indeed, the no. 1 reason ffered by the most high profile anti-abolition group was that reform is better than outright abolition:
    http://www.democracymatters.ie/
    Abolition does not seem to have been particularly well thought through in any case, being an improvised electoral promise by the present Taoiseach that I guess was thought to be an easy win under the circumstances. Ironically the centralising style of power of the present Taoiseach seems to have been a potent argument against leaving the Dáil to its own devices.

  13. DC, while it is true that virtually no-one supports leaving the Seanad as it is, virtually no-one supports increasing its powers in order to give it real clout, either (much like suggested reforms to the upper house on the other side of the Irish sea).

  14. You’d really think Ireland would find the legislative councils in New South Wales or Victoria a model worth considering. They are already used to the vagaries of STV. There are no obvious subnational units that could be used for an equal representation upper house.

    NSW is undistricted with M=21, rotation every 4 years and a term of 8 years. Victoria is districted into 8 regions with M=5 and no rotation.

    Both states prevent the council from rejecting budgets, or supply. Both states give their councils a particular responsibility for reviewing (and rejecting) subordinate legislation.

  15. Thanks, Alan and Tom, for the added detail on the Australian example of “shutdown”. I agree that the Fisher piece, and especially its headline, got quite a bit wrong.

    A clarification: at #9, I was not agreeing with Ed’s suggestion that the bribery scandals under Lula were typical of how Latin American budgetary processes work (on that I would agree with Alan, #10). I was agreeing with the points in the preceding paragraph of Ed’s comment, although he left out some African presidential democracies (e.g. Benin and Liberia).

    I am not sure how this thread became one on the Seanad sometime early Sunday morning.

  16. @MSS, apologies, I had a browser crash and accidentally posted this in the wrong comment box-meant to put in a Irish thread that mentioned the abolition proposal.

  17. @17 Some government programs actually did run out of money. There were no civil service lay-offs because salaries were then appropriated separately from programs. There was, as in the US, no remedy for the executive to invoke.

    The odd thing is that there was a period of about 2 hours between the dismissal itself and the grant of supply by the Senate when Labor were in a position to deliver a devastating riposte to Fraser and Kerr. Labor controlled the Senate presidency, which has the right to suspend a session unilaterally.

    Had Labor voted against the budget, or even asked the president to suspend the Senate for the day, Fraser would have been left without supply, without confidence, without public money to hold an election, and without much of a political future.

  18. > “without public money to hold an election”

    I once asked a senior Australian judge what the High Court might do if Parliament refused or failed (most likely due to bicameral deadlock) to pass a Bill appropriating the funds needed to hold an election.

    Their Honour (who did not wish to be quoted by name as this was a hypothetical question that might possibly come before the courts) suggested that since the Australian Constitution itself is a “law”, and since ss 7 and 24 of the Constitution require that Senate and House be “directly chosen by the people”, the High Court might hold in extremis that this was sufficient to satisfy s 83’s requirement that public funds be appropriated only “by law”. In other words, “by law” is not limited to “by Act of Parliament” (although I doubt the courts would allow it to extend to either subordinate legislative instruments or common law).

    if I were drafting a Constitution, the Executive Council would get the right to submit one “privileged” budget bill per year that would pass automatically after 30 days, in its original form except as specifically amended by an absolute majority of the lower house. (In a presidential system this might be replaced by a joint sitting. In neither case should it require two chambers to either pass or amend the budget). The legislature would have no legal power to reject the “privileged” budget motion as such, although if an absolute majority voted to reduce all expenditures to one dollar there would probably be no judicial remedy for this. (Perhaps the Constitution could specify no reductions below, say, 90% of the previous year’s level, or increases over 110%, without the Executive Council’s approval?).

    The legislature would be free to pass other budget measures by normal legislative bill in between the annual budget measures.

    “Executive Council” would mean the Head of State with at least, say, three Cabinet Ministers/ Secretaries co-signing. In a Westminster or other parliamentary system this would be shorthand for the usual decision made by Cabinet solidarity, just as Executive Council meetings today are formalities where papers are signed off by the Governor[-General] plus a quorum of two Ministers. In a presidential system, this would normally mean the President although he/she would be unable to act if he/she had gone full Greg Stillson-level insane and found the entire Cabinet, or all but one or two, opposing him/her.

  19. You may be right about Ireland (although the four “Fifths” do field separate football teams still) but did the Victorian Legislative Council regions have any particular pre-existing identity? Very lucky there happened to be eight of them of equal voter population. Or the WA Legislative Council regions? If you draw them, the voters will come. You could probably just draw “northern”, “central” and “southern” more or less by lines of latitude and explain to the voters this is so they have 20-25 names on their Seanad ballot papers instead of 80-100.

    You could also have a set number of seats elected nationwide, as well as the regions.

    PS: I call thread-hop.

  20. Costa Rica has a lovely solution to the problem: the executive has no formal influence over the budget. The unicameral Legislative Assembly passes a budget and does not need the President’s assent. I do not know what happens if the assembly fails to pass a budget.

    The president’s loss of power there is somewhat offset by the cabinet not needing any confidence, or indeed even confirmation, by the legislature.

  21. It’s bad enough when US journalists misdescribe other countries’ constitutional systems. Jonathan Bernstein (“It’s not Madison. It’s the Republicans,” Washington Post, 4 October 2013, http://tinyurl.com/n9qgvmj) manages to misdescribe his own:

    “… On a literal level, they are correct that the particular symptom, a government shutdown and a long-term impasse between a president and a legislative chamber, is essentially impossible in many parliamentary systems. But so what? It’s also (essentially) impossible, in the US system, for elections to yield a multiparty mess in which no coalition can put together a government that can win a majority in parliament. Each system has its own kinds of failures..”

    Uh… the Corrupt Bargain of 1824, anyone? http://tinyurl.com/5klne2 Or 1948, where one per cent more for Tom Dewey in Ohio, California, and Illinois would have given the Thurmond Dixiecrats the balance of power in the Electoral College? Or 1968, where three per cent more for Humphrey in any two of those same three States would have given the Wallace Dixiecrats the balance of power in the Electoral College?

    Since the US Constitution requires an absolute majority to elect a President (whether initially of Electors, or of States of the contest devolves to the House), sets no time limit on the House balloting, requires each State’s delegation to cast one single vote, allows the Senate to separately elect the Vice-President by absolute majority of Senators, and does not allow dissolution of either House, it is arguably even more vulnerable than most parliamentary constitutions – even Italy’s, even Belgium’s – to a prolonged deadlock if there is a close three- or four-way election result.

  22. Re-reading Max Fisher, I also object to his (or, to be fair, possibly his sub-editor’s) implication wrongly implies that dissolving the legislature is some kind of royal prerogative that common to, and/or unique to, monarchies.
    Which we know is rubbish. The Italian President can break a deadlock by dissolving both chambers. On the other hand, the Norwegian King cannot call early elections under any circumstances. Fixed terms are not a monarchy/ republic issue.
    (Having said that, of the few polities that do have absolutely fixed terms, two are republics – USA and Switzerland – while Norway is the only monarchy I know of: http://tinyurl.com/2ggzv3. On the other hand, semi-fixed terms, or limiting the power of dissolution without abolishing it – either by imposing Constitutional preconditions (Germany), or banning dissolutions “too early” or “too late” in the normal term (France), or allowing a legislature elected at an early election to serve out only the remainder of the original term (Sweden) or both (NSW, Scotland) – tends to be associated more with republics than monarchies, although even then there is a lot of crossover: eg, Ireland’s and India’s (and South Africa’s, 1962-84) Presidents have unlimited power of dissolution as long as the Prime Minister advises and consents, while the Crown in Britain and Canada are constrained by Acts introducing (not 100% accurately labelled) “fixed-term” Parliaments.
    [Australia has an echo of this in that Senators elected at a double dissolution have their terms backdated to the previous 1 July – so that the notionally six-year terms of the lucky half may be as short as five years, and the unlucky half may draw terms as short as two years! Eg, if a double dissolution were held on 30 June 2020, the Senators elected would be deemed to have begun their service on 1 July 2019, which means that half of them would get terms expiring on 1 July 2025 and the other half would get terms expiring on 1 July 2022.]
    Moreover, saying “sacked” implies an indefinite suspension of the legislature and of elections (c/f Peter Van Greenaway’s 1972 novel The Man Who Held the Queen to Ransom and Sent Parliament Packing). Running the country without the advice and consent of any elected representatives – even those who were elected two or three or four years earlier – is profoundly undemocratic. On the other hand, sacking those representatives to replace them promptly with freshly-elected representatives can be viewed as more democratic. (Not inevitably, which is why many democracies either prohibit or regulate early elections.)

  23. The sub-genre of epic fantasy novels that make reference to the Whitlam Dismissal is not vast (compared to, say, those that reference The Beatles, which both Stephen King and Michael Moorcock have managed). But then Mr Grossman did manage rather prophetically (in the first book in this series, published 2009) to create an imaginary kingdom ruled by “Quentin” and “Julia”:

    “You make it sound romantic.”

    “It is romantic. That’s not just me. Living in a castle is objectively romantic.”

    “See, this is spoken like somebody who didn’t grow up in a monarchy. Australia still has a queen. There’s a lot of history there. Remind me to tell you about the constitutional crisis of 1975 sometime. Very unromantic.”

    “I can promise you there will be no constitutional crises if we go to [Castle] Whitespire. We don’t even have a constitution. Or if we do, I promise you nobody’s ever read it.”

    – Lev Grossman, The Magician King (Random House, 2012), p 387.

  24. Just re-read-ed my penultimate comment. It should say:

    “or banning dissolutions “too early” (France, first 12 months) or “too late” (Australian double dissolutions, last 6 months) in the normal term…”

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