Even on a normal day, advancing ethics in government and holding powerful officials to account is no easy task. Add a government shutdown to the mix and things will get a whole lot harder.
Congress has until midnight on November 17th to pass a bill to fund the government and after weeks without a Speaker of the House, it is looking more and more likely that government funding might lapse for the first time since 2019. If it does, Americans across the country would be immediately impacted by a shutdown as over two million civilian federal workers will face delayed paychecks and roughly four million federal contract workers anticipate receiving no paycheck at all, while countless others will face travel delays, slow customer service response for government programs like Social Security and postponed immigration court cases. Less immediately obvious, however, is the way a shutdown will interfere with government ethics.
Here’s how a government shutdown would throw a wrench in advancing government ethics, transparency, and accountability:
Bringing to light corruption and misconduct in government
As the old saying goes, sunlight is the best disinfectant. The public needs access to government records in order to uncover wrongdoing, which is why anyone can file requests for information from any federal agency under the Freedom of Information Act. CREW has used FOIA requests to uncover the Secret Service’s contact with the Oathkeepers and investigate federal officials’ responses to the insurrection on January 6th among other issues. FOIA requests are used by individuals, news organizations and advocates across the political spectrum, and have been used to break huge news stories, from how the government misled the public about the war in Afghanistan, to the release of a secret memo about the use of torture during the Bush administration.
But processing FOIA requests requires thousands of federal employees. Even when the government is fully funded, FOIA requests often take far longer than they should, leading to a backlog of requests. During shutdowns, agencies are delayed even further due to low capacity, and in the past, some agencies have refused to accept requests entirely – a decision we could see replicated in a future shutdown as well.
Without enough employees to process FOIA requests, agencies are unlikely to be able to meet the standards required by law, and it will be harder to access information that may be of public interest.
Our government has systems in place to investigate allegations of misconduct by government officials. While these systems are not perfect, they nonetheless play an important role in bringing wrongdoing to light and cannot function appropriately during a lapse in government funding.
Suppose a federal employee observed a federal official engage in misconduct last week and is concerned that the official may be abusing their office. To address this concern, the witness filed a complaint with their agency’s Inspector General office, a government watchdog body in most federal agencies. But then, the government shuts down and half the IG’s staff are furloughed leading to severely limited capacity. To make matters worse, the remaining staff cannot thoroughly investigate the complaint because they cannot coordinate with other offices and agencies because their staff have also been furloughed. As the Department of Justice IG said in 2019 following the most recent government shutdown, “we cannot conduct effective oversight during a shutdown if OIGs are facing furloughs while agencies are continuing certain operations, and this concern is shared by the IG community as a whole.”
From another perspective, we can consider a member of Congress who was accused of an ethics violation. If a complaint was filed with the Office of Congressional Ethics, such as the one CREW recently filed against Representative Andrew Clyde, that member may be under investigation by OCE. During a shutdown, that investigation may be paused and new complaints may not be reviewed if OCE employees are furloughed.
In these situations, a government shutdown would likely delay such an investigation, whether it results in accountability, or the official’s name being cleared.
Enforcing the law and seeking accountability
Ethics laws are only powerful if they are enforced, which is why it is a problem when government ethics enforcement bodies are operating at diminished capacity. A government shutdown would mean that only a small number of workers who perform duties vital to national security, public health and safety, or other crucial operations could continue working to keep the lights on and tend to emergencies. But enforcing ethics rules is not usually considered a vital government function, which means that there likely won’t be staff to enforce them.
For example, the Office of Special Counsel is expected to go from 130 employees to just 14 during a shutdown. OSC is responsible for enforcing the Hatch Act, a law that prohibits executive branch employees from using their official authority to engage in partisan political activity. If an employee violates the Hatch Act during the shutdown, CREW and others could file a Hatch Act complaint, but it is unlikely OSC will be able to issue a ruling on cases during a shutdown. Even if OSC did have enough capacity to investigate and find a Hatch Act violation, they would then need to initiate a disciplinary action via the U.S. Merit Systems Protection Board, which is expected to furlough its entire 190-person staff.
If the government shuts down, the Federal Election Commission will also be severely limited in its capacity to enforce campaign ethics laws. During the last shutdown in 2019, then FEC Chair Ellen Weintraub told Congress that campaign finance enforcement “ground to a halt” after the agency furloughed 90% of the agency’s 300 employees. With similar staff numbers expected during the next shutdown, the FEC will cease enforcement of the Federal Election Campaign Act, meaning that investigations into dark money complaints will be paused. The FEC will be unable to provide guidance to campaigns about campaign finance laws, just as candidates have begun ramping up their campaigns ahead of the 2024 election.
Setting up safeguards to prevent corruption and make government more ethical
It’s not enough to hold officials accountable for corruption and ethics violations after the fact; we also need to enact new laws in order to prevent misconduct from occurring in the first place. Members of Congress and most of their staff are working during the shutdown, but it is difficult to hold hearings and move legislation when most of Congress is focusing (or should be focusing) on how to fund the government and deliver vital services to Americans. During a shutdown, it will be more difficult to make progress on important ethics reforms like banning members of Congress from owning individual stocks or bringing transparency and accountability to the Supreme Court.
Rulemakings on critical ethics issues are likely to be held up too. Federal agencies are currently reviewing public comments on implementing the Corporate Transparency Act, regulating the use of artificial intelligence in campaign advertisements, and preserving the merit-based system for civil service workers, to name a few. Despite the significance of these rulemakings, they are all likely to be considered non-essential which means that agencies would be violating the law if they worked on them during a shutdown.
Delays in uncovering, investigating, adjudicating, and preventing ethics violations during shutdowns create opportunities for misconduct to go unchecked and can set a risky precedent. Put simply, government shutdowns weaken mechanisms of enforcement and accountability, and weak accountability measures don’t make for an ethical government. Some of these issues can be addressed by passing legislation to keep ethics offices running during the shutdown. But ultimately, what we really need is for Congress to fund the government and keep the ethics enforcement wheels in motion.