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The Federal Trade Commission, then a 65-year-old regulatory agency with 1,600 employees, was running out of money and needed Congress to pass a spending bill for the next fiscal year. Some lawmakers, pushed by lobbyists for the broadcast and sugar industries, would green-light more money only if the agency's rule-making and investigative powers were drastically curbed. Meanwhile, President Jimmy Carter refused to sign any bill that would undermine the FTC.
So Carter sought legal clarity from Attorney General Benjamin Civiletti, asking if a federal agency could legally allow its employees to continue working if its appropriations had dried up.
Civiletti delivered an opinion nearly 40 years ago that paved the way for government shutdowns, including the current partial closure, now the longest in U.S. history.
"MY DEAR MR. PRESIDENT," he wrote to Carter on April 25, 1980, "It is my opinion that, during periods of 'lapsed appropriations,' no funds may be expended except as necessary to bring about the orderly termination of an agency's functions." Civiletti added that the expenditure of any more money without Congressional approval would violate the Antideficiency Act of 1870. He said the law's language was "plain and unambiguous" and that it barred agencies from "incurring pay obligations once its authority to expend appropriations lapses."
Civiletti, a trusted lieutenant and former assistant U.S. attorney in Baltimore, was making a blunt argument: Either Congress keeps a government agency alive and pays its people, or it starves the agency of funding and no one works or gets paid.
The opinion shocked the government, particularly those who worked at the FTC.
A week later, the FTC was temporarily shut down, "apparently the first federal agency ever forced to close its doors in a budget dispute," according to a Washington Post article from May 1, 1980. "The shutdown came despite eleventh-hour congressional action to limit sharply the agency's power."
One anonymous FTC official told the Post, "We are in the absurd situation of having to follow the attorney general's opinion."
As the agency wound down its operations, 11 FTC investigators scouring oil company documents in Texas were ordered home, according to The Post. An FTC argument scheduled before a New York federal appeals court was scratched. "The machines that normally test about 500 cigarettes a day for the Federal Trade Commission went cold turkey yesterday," The Post reported in a front-page story.
FTC Chairman Michael Perschuk was not pleased.
"It's basically idiotic. It's a waste of taxpayers' dollars," Pertschuk said, citing the travel expenses wrought by the shutdown.
And lower-level employees, sounding very much like today's furloughed government workers, felt discarded and meaningless. "It's just degrading," Sue Hendsey, the FTC's chief librarian, told The Post. "Morale is low, to say the least."
But the FTC wasn't shut down for very long at all, only for a few days, The Post said.
Now retired and splitting his time between Florida and Baltimore, Civiletti, 83, said in a brief telephone interview that the modern era of government shutdowns has surprised him.
"I couldn't have ever imagined these shutdowns would last this long of a time and would be used as a political gambit," he said. "[My opinion] was a purely direct opinion on a fairly narrow subject and has been used in ways that were not imagined at the time."
During the early 1980s, under President Ronald Reagan, there were two governmentwide shutdowns, but they lasted only a half-day and a one full day, according to historian and lawyer Kenneth Ackerman. In 1990, a shutdown lasted over a three-day weekend.
It wasn't until the mid-1990s when Civiletti's legal opinion truly began being exploited, according to Ackerman, who recently posted an article on its impact on his law firm's web site. (Headline: "Government shutdowns -- Who dreamed up this crazy idea?")
The previous record for the longest shutdown occurred while Bill Clinton was president and Republicans controlled the House. The vast federal workforce was furloughed from Dec. 16, 1995, to Jan. 6, 1996. Washington practically went dark. Smithsonian museums closed, tax drivers idled and cruised, and hotels and restaurants trimmed staffs. On the day that workers were scheduled to finally return to work, not one but two winter storms hit the Washington region, making it impossible for offices to open for another five days.
"The whole idea that someone would shut down government in order to gain leverage over a political opponent was not part of the discussion in 1980," Ackerman told the Post. "The framers of the Antideficiency Act of 1870 did not conceive that they were making a political weapon."
And neither did Civiletti.
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