Federal employees on furlough know the drill by now: Answer emails, return phone messages or do any other government work during the shutdown and face upward of $ 5,000 in fines and two years in prison.
We’ll see about that.
There is indeed a law — a very old, 19th-century one dating to the administration of President Ulysses S. Grant — that prohibits working without funds from Congress. It’s right there near the top of the Constitution, too.
But no one in recent memory has ever been criminally prosecuted for violating the 1870 Antideficiency Act. So with the shutdown entering its third week, it’s not surprising that there’s also a good deal of skepticism — and confusion — about whether anyone stuck at home without pay would really get in trouble for picking up a BlackBerry to clean out an overstuffed inbox.
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After all, the line for who’s “essential” and who’s not keeps getting blurrier. Some agencies are only now going dark, while the Central Intelligence Agency and Centers for Disease Control and Prevention recently recalled some of their employees from the shutdown. The national parks are opening in places where states can foot the bill. And the Pentagon’s OK with its military academies playing football games.
Even the shutdown police themselves — agency inspectors general who rely on the honor system method where perpetrators report themselves — are furloughed right now, too.
“It seems to me unlikely that A: Anyone is going to spend a lot of time hunting for it, and B: It’s unlikely they’ll get any more than a notice in their personnel file,” said a former government official involved in planning for the shutdowns in 1995 and 1996.
Of course, no one is being flagrant by working without pay when they shouldn’t. Queries to several agencies for insight into how they‘re dealing with enforcement went unanswered out of concern that just engaging with a POLITICO reporter could be deemed a violation since it might not be critical to government operations.
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Part of it is the Darrell Issa factor: The fear of giving the flamethrowing chairman of the House Oversight and Government Reform Committee another reason to investigate the Obama administration. The California Republican already has a government shutdown hearing scheduled Wednesday about the National Park Service’s decision to close the World War II Memorial when veterans groups were arriving for visits.
Another reason workers are taking the shutdown seriously is that while experts can’t recall a recent criminal prosecution for breaking the law, there have still been plenty of wrist slaps and the occasional firing. According to Government Accountability Office records, agencies between fiscal years 2005 and 2012 reported 164 violations, with more than half of those coming from the Defense Department.
Typical problems centered on spending out of the wrong pot of money or a mistake with government procurement. In one 2005 report, the National Oceanic and Atmospheric Administration investigated itself and found 80 illegal license and lease agreements dating back to 1923. NOAA made changes to its real estate practices but didn’t bring the violations to the Justice Department because the employees who signed the contracts didn’t make the error in a “willful or knowing” manner.
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Jim Dyer, a former White House legislative aide during the Reagan and George H.W. Bush administrations and later the GOP staff director for the House Appropriations Committee, said he’d often flag violations to the Office of Management and Budget.
“It’s not the type of thing that anyone suffers a fine or imprisonment on,” Dyer said. “It deserves to be respected and fixed.”
Experts on the law say that federal employees breaking the rules during the shutdown wouldn’t be on the radar of investigators until weeks or months after the shutdown ends anyway.
“Anti-deficiency problems are generally not policed in what we call real time,” said Daniel Gordon, the former Obama White House administrator for federal procurement policy and before that, a senior GAO attorney.
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Enforcing rules during the shutdown — if and when investigators even get there — will also be a bit different than Antideficiency Act cases from recent years. The amount of time that a furloughed employee might spend on work is likely to be minimal. And even if workers were trying to be productive, they’re unlikely to find the normal range of responsive colleagues.
Checking on what crosses the line remains a challenge too. Government investigators have the capacity to monitor which employees are using their work devices. But it can get trickier with personal cell phones that also can handle work emails.
And the shutdown also means the law’s enforcers are short-handed. At the GAO, which collects information from agencies on Antideficiency Act violations, only two senior officials are on the clock. They are both experts on the law but not the worker bees who run down the details for how agencies are handling the issue.
The Justice Department, which declined comment, is also under the strain of not being able to answer questions or respond to queries about past prosecutions because it’s not considered an essential function of the agency.
Work banned on furlough, but who"s enforcing?
