D.C. Considers Defying Congress by Refusing Shutdown

Over coffee and orange juice at a roundtable breakfast Tuesday morning, Mayor Vincent Gray, members of the D.C. Council and District officials hashed out radical plans to defy Congress and keep the District government running in the event of a federal shutdown Sept. 30.

“This is an opportunity for the District of Columbia to stand up and say ‘enough is enough,’” declared Councilmember David Grosso, who proposed an Oct. 1 council vote on emergency legislation that would declare all city government employees essential, in theory giving D.C. Chief Financial Officer Natwar M. Gandhi the legal authority to pay them for their work.

At issue are the funds raised from District taxpayers, used to pay D.C. workers for city services. Under current law, D.C. needs a federal appropriation to spend that money. An emergency bill to keep the city operating would require the support of nine councilmembers. If passed and signed by Gray, it would be implemented immediately and effective for 90 days.

Gray said the city ought to step up and confront the shutdown in a “forthright manner,” comparing the District’s government to the states of Maryland or Virginia, which need no congressional approval of their budgets. “At the end of the day, the point for me is that the District of Columbia should have the authority to spend its own money,” he said.

But Gray also cautioned that he would want to make sure city officials have legal standing to keep the city’s 30,000-person workforce on the job.

D.C. Attorney General Irvin B. Nathan warned that the consequences of emergency legislation could be severe, because the District would be acting in violation of the federal Antideficiency Act, which outlaws involving the government in any obligation to pay money before funds have been appropriated. The law requires Gray to report any violations to the Office of Management and Budget.

Nathan said the federal government could punish the District by “suspending home rule, suspending the people who voted to say that everyone was essential, or [removing] the mayor from office” and urged the District to follow the law.

Councilmember Kenyan McDuffie pointed out that penal action could raise the profile of the District’s fight for budget autonomy.

D.C. voters approved a budget autonomy referendum in April that allows the city to set its own fiscal calendar and determine how it spends locally raised funds. Having survived a 35-day congressional review period, the law becomes effective Jan. 1.

“We stood up already because we passed the Budget Autonomy Act,” said Council Chairman Phil Mendelson, who also sounded a note of caution about “playing games” by declaring all District employees essential.

Supporters could still face a legal battle when they try to proceed with budget autonomy. House leaders have called the city’s authority into question. A report by the Republican majority of the House Appropriations Committee, endorsed by Speaker John A. Boehner, R-Ohio, referred to the referendum as “an expression of the opinion of the residents, only,” but the language was not included in any final legislative language.

Mendelson suggested that going through a shutdown “helps our case” in arguing the need to free locally raised funds from the congressional appropriation process. “This just reinforces the need for Congress to accept that we have changed the law,” he said.

After the meeting, which stretched on for about 30 minutes past its scheduled end, Gray’s office announced it would cancel an afternoon news conference on the shutdown with Del. Eleanor Holmes Norton, D-D.C.

“This is all new at this stage,” Gray concluded.

DC Vote Executive Director Kimberly Perry announced her support for the new direction.

“If we expect to change the unjust congressional control over our local tax dollars, we must take bold action,” she said in a statement. “We encourage the people of the District of Columbia to actively support our council, mayor and CFO should our government move ahead with civil disobedience.”

The D.C. Council meets at 1 p.m. on Oct. 1.

“It’s clear from this discussion that one of the items will be a statement, I would even say legislation, that makes clear that the District government will stay open,” Mendelson told CQ Roll Call after the meeting. “I’m not exactly sure how we’ll word it.”