January 18, 2019
As the current shutdown of the federal government has passed the threshold for the longest in American history, many federal services remain on hold, leaving thousands of federal workers and the Americans that rely on them in dire financial straits. This human cost is real and is being felt in real time in communities across the country. Sadly, this shutdown is also imposing significant costs on democratic institutions that are less easily measured. Each day this shutdown persists leaves these institutions a little bit weaker and allows the Trump administration to operate with even less accountability.
Since the government shutdown began on December 22, 2018, many of the agencies and institutions that have provided a check on this administration’s worst abuses remain hamstrung. For example, the Office of Government Ethics (OGE) is responsible for overseeing the entire executive branch ethics program and is a check on government officials who break ethics rules. In March 2017, OGE advised the White House to discipline Counselor to the President Kellyanne Conway for violating federal regulations by endorsing Ivanka Trump’s private business in a television interview from the White House. During the shutdown, OGE’s operations are substantially limited to supporting the President’s ability to nominate government officials and protecting the agency’s information technology infrastructure and property.
The shutdown undermines OGE’s ability to provide government-wide ethics guidance on significant issues facing government employees. For example, questions have arisen involving whether furloughed employees can use crowdfunding platforms such as gofundme.com to raise money to support their families basic needs like paying for rent or groceries, or whether they can volunteer to pick up trash at national parks. Agency Ethics Officials across the government who could address these questions may also be furloughed and prohibited by law from even responding.
OGE is not the only government watchdog whose work is threatened by the shutdown. In the first two years of the Trump Administration, ten administration officials, including then-U.N. Ambassador Nikki Haley, have violated the Hatch Act by impermissibly using government resources for partisan politics. The agency responsible for enforcing the Hatch Act, the Office of Special Counsel, is currently closed “[d]ue to a lapse in appropriations.” The agency’s website advises that “[c]omplaints may still be filed, but most will not be addressed until OSC reopens.” OSC currently has more than ten outstanding Hatch Act investigations following complaints from CREW, and those inquiries, and many others, may be on hold for further notice. The Federal Election Commission, whose mission includes “protect[ing] the integrity of the federal campaign finance process,” is also “closed until it receives an appropriation to fund its operations.” Many Offices of Inspector General (OIG), which investigate waste, fraud, and abuse in federal agencies, are also limited by the shutdown. For example, despite numerous ethics scandals involving leadership at the Department of Interior, the agency’s Inspector General complaint hotline “will not be monitored and will not accept voice messages.”
The shutdown also presents a significant challenge to government transparency. One of the most curious discoveries of the shutdown has been that while the National Park Service (NPS) remains closed, NPS employees are on duty at the Old Post Office Building, the site of President Trump’s hotel in Washington. Want to know how this decision was made? Good luck! During the shutdown, NPS and some other agencies are not accepting new Freedom of Information Act (FOIA) requests, so the public cannot request NPS documents explaining why rangers are working at Trump’s hotel despite the shutdown. Even if potential wrongdoing by NPS is discovered, the shuttered Office of Inspector General might be unable to investigate.
Many agencies have stopped processing FOIAs, including one related to Acting Environmental Protection Administration Administrator Wheeler’s conflicts of interests, which could have been relevant to his nomination hearing. Good government groups have also been fighting to receive the Department of Justice’s (DOJ) legal opinions about the President’s threats to declare a national emergency to fund his border wall, another potential affront to democracy. According to the National Archives and Records Administration’s website, its operations are shuttered with a few limited exceptions. Agencies impacted by the shutdown have also stopped updating their websites with vital information.
The Trump administration has even used the shutdown as an excuse to undermine congressional oversight. DOJ delayed setting a date for Acting Attorney General Matthew Whitaker to appear before the House Judiciary Committee citing complications from the government shutdown as one of the reasons.
As the longest shutdown in American history persists, it is hard to ignore the consequences for millions of Americans employed by the federal government or who rely on critical government services. Less attention, however, has been paid to the devastating impact of the shutdown on ethics and accountability in government. For an administration that has habitually ignored ethics and transparency rules, this shutdown provides an opportunity to further erode key norms. While it is important to measure the cost of this shutdown in dollars and cents, we must not forget the untold costs to our democratic institutions as well.