One day in 1980, Attorney General Benjamin Civiletti tapped out a quick four-page memo to President Jimmy Carter that has cost American taxpayers hundreds of millions of dollars, damaged the economy to the tune of billions of dollars and undermined faith in democratic institutions.
The memo was meant to clarify what happens when Congress fails to pass a spending bill. Instead, it accidentally created the modern government shutdown, a problem that has bedeviled American politics in the decades since, especially over the last 43 days.
Like the president he served, Civiletti was a thoughtful, hard-working man who meant well. But in this case, he was dead wrong, and it’s long past time to fix his mistake. Now that the longest-running government shutdown is finally over, we should all agree never to do this again.
When a spending bill wasn’t passed, federal agencies continued operating under the previous year’s budget.
When the memo was written, Congress had developed a bad habit of not finishing spending bills on time, letting federal funding lapse for as long as 17 days. When that happened, federal agencies continued operating under the previous year’s budget. Civil servants showed up and did their jobs, paychecks were mailed out, and national parks stayed open.
But in the memo, Civiletti took a principled stand: Since only Congress could appropriate money, federal agencies could not keep running when the old budget lapsed. A year later, he issued a 12-page memo attempting to clear up some of the questions raised by his extreme stance, noting that of course federal workers could continue performing essential functions, but they couldn’t be paid until the shutdown was over.
The logic was flawed from the start. If federal workers can’t do their jobs without congressional approval, then that means all of them. There’s no asterisk in the Constitution that says “unless their job is really important.” And if Civiletti had stuck to that line, then that would have meant shutting down the military, the FBI, the IRS — everything — if a spending bill hadn’t been passed.
Under that scenario, it’s possible that shutdowns might have still become a political tactic, but they would likely have been very short, maybe a few hours or a day while Congress held another vote. Or that might have been such an extreme scenario that Congress would have passed a law clarifying that the government doesn’t have to completely shut down. Or a future attorney general might have written a new memo rescinding Civiletti’s interpretation.
Instead, the opposite happened, as Congress amended the relevant law and the Department of Justice updated the opinion to further cement Civiletti’s second idea that essential workers can stay on the job. By trying to carefully craft an exception to his extreme interpretation, Civiletti made things worse, and somehow this new idea was turned into the standard operating procedure.
It took a few years, but Republicans in the 1990s under Speaker Newt Gingrich came around to the idea of intentionally shutting down the government in order to put political pressure on a president of the opposing party. Since essential workers stay on the job, it takes time for the public to notice the trash piling up or the paychecks not going out while a zombie government stays alive at a minimal level. This leads to shutdowns that drag on for weeks until enough pressure forces one side to cave.
Like the filibuster, government shutdowns are an American phenomenon. Among other comparable democracies, only Northern Ireland has even come close to having a shutdown. (The British government stepped in to prevent one in 2017.) In most European countries, when the legislature fails to pass a spending bill, the government just keeps running under the old budget — much like the United States before Civiletti’s memo. In some parliamentary systems, failure to pass a budget can even lead to a snap election.
Depending on your politics, you might have approved of a shutdown at some point. Maybe you agreed with Republicans looking to cut Medicare and Medicaid in 1995 or stop the Affordable Care Act from taking effect in 2013. Maybe you supported President Donald Trump when he demanded billions for a border wall with Mexico in 2018. Or maybe you think Democrats were right to fight for an extension of health insurance subsidies this year. A 2024 Senate report found that three of the shutdowns added a total of $338 million in new costs. No matter the reason, all of those shutdowns had a cost. A 2024 Senate report found that three of the shutdowns added a total of $338 million in new costs for extra administrative work, lost revenue and late fees. The Congressional Budget Office estimated that the 2018-19 shutdown alone permanently reduced the country’s economic output by $3 billion as federal workers cut back their spending, federal contractors waited to get paid and government approval was delayed for routine business. But shutdowns have another cost that’s harder to measure. They don’t just hurt federal workers; they also harm the institutions involved. A country whose government regularly fails to put together a simple budget doesn’t inspire confidence. And the shutdown puts the president in charge of deciding which government functions are needed, diminishing congressional powers and paving the way toward authoritarianism. The government shutdown is an accidental byproduct of a well-intentioned memo from decades ago. It hurts the economy, damages our democracy and typically backfires on the political party that tries to use it. It’s time to get rid of it, once and for all.
Ryan Teague Beckwith is a newsletter editor for MS NOW. 
