MICHELE NORRIS, Host:
A threatened U.S. government shutdown is now just hours away, and lawmakers have to ask themselves how far to push this game of chicken over the budget and who will get the blame if the government closes its doors.
President Obama insists he's not worried about that.
BARACK OBAMA: I don't think the American people are interested in blaming somebody. They want people to fix problems and offer solutions. They're not interested in finger-pointing, and neither am I.
NORRIS: Maybe not, but one finger has to point back some 30 years. NPR's Scott Horsley reports on the man who singlehandedly raised the stakes in the government's budget showdown.
SCOTT HORSLEY: These days, when many people argue for a literal interpretation of the Constitution, the idea that government can't operate until Congress agrees on a spending bill seems obvious. But it wasn't obvious at all until 1980, when Benjamin Civiletti, Jimmy Carter's attorney general, said so.
CHARLES TIEFER: Attorney General Civiletti let the genie out of the bottle.
HORSLEY: Law professor Charles Tiefer of the University of Baltimore notes in the three decades before 1980, there were at least half-dozen occasions when Congress failed to pass a spending bill on time. And in each case, the routine functions of government just kept going, more or less on autopilot. Civiletti put a stop to that with a legal opinion arguing, in effect, if Congress doesn't say yes to spending on time, it means no.
TIEFER: At the time, it was seen as a radical break with the easygoing tradition that a little gap was a little gap, and you just kept on going through a little gap. What's the point of stopping the operation and putting the public to all kinds of inconvenience and difficulties? We should just do the reasonable thing. Attorney General Civiletti was saying: You can't do the reasonable thing. You must do what the statute says and shut down.
HORSLEY: Civiletti actually wrote two opinions. The first addressed a funding gap for a single agency, the Federal Trade Commission. Then, less than a year later, Civiletti was confronted with a much bigger question when Congress failed to pass spending bills covering most of the federal government. In general, he stuck by his new shutdown rule, although this time he left a little more wiggle room.
TIEFER: It was very obvious that when the noose was around his own neck, when it wasn't just the little Federal Trade Commission but his own president's whole administration, then he fingered the noose, and he cut himself a little more slack.
HORSLEY: This second Civiletti opinion carved out exceptions for some government activities, including those protecting life and property. Countless federal workers have spent the last week trying to figure out if they fall into one of those exempted categories.
Boston University law professor Alan Feld thinks Civiletti's second opinion still leaves too much of the government operating. But Feld admits it may be in no one's political interest to raise the stakes of these budget showdowns even higher.
ALAN FELD: People are just as happy to say: Let's have a symbolic shutdown of the government, where you can't go to the national parks, and you might get a delay in your tax refund, but the Army is really going to keep going in Afghanistan. Maybe that's a balance that Congress has implicitly approved at this point.
HORSLEY: The threat of a shutdown doesn't seem to weigh too heavily on the author of those pivotal opinions. We tried to reach former Attorney General Civiletti at his law office this week. He's on vacation.
Scott Horsley, NPR News, Washington.
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