Continuing Appropriations Acts: Brief Overview of Recent Practices1

Continuing Appropriations Acts: Brief Overview of Recent Practices1

97-892 GOV
September 26, 1997
CRS Report for Congress
Received through the CRS Web
Continuing Appropriations Acts:
Brief Overview of Recent Practices1
Sandy Streeter
Analyst in American National Government
Government Division
Summary
Under the Constitution and federal law, no funds may be drawn from the U.S.
Treasury or obligated by federal officials unless appropriated by law.2 Normally, most
of the operations of federal departments and agencies are funded each year through the
separate enactment of 13 regular appropriations acts. However, it is not unusual for the
3
enactment of one or more of these acts to be delayed beyond the beginning of the fiscal
year on October 1. When this occurs, affected departments and agencies usually ar
4
e
funded under one or more continuing appropriations acts.
Because continuing appropriations acts typically are enacted in the form of a joint
resolution, such acts are referred to as continuing resolutions (or CRs).
Beginning in the early 1970s, a sustained period of heightened budgetary conflict,
caused in part by persistent deficits and other factors, led to changes in the nature of
continuing resolutions. In some years, this conflict greatly complicated their timely
enactment. On occasion, such conflict has prevented agreement even on short-term
funding extensions. When this occurs, the ensuing period of lapsed appropriations is
known as a funding gap. During late 1995 and early 1996, two funding gaps occurred,
forcing affected federal departments and agencies to shut down non-essential activities.
1 Edward Davis wrote the original report in 1995, and Sandy Streeter updated it in 1997.
2 See Article I, Section 9 of the Constitution, and 31 U.S.C. 1341.
3 For information the types of appropriations measures and the appropriations process, see
U.S. Library of Congress, Congressional Research Service, The Congressional Appropriations
Process: An Introduction, by Sandy Streeter, CRS Report 97-684 GOV (Washington: 1997).
4 Fiscal years begin on October 1 and end the following September 30. For example, the
fiscal year 1997 began on October 1, 1996.
Congressional Research Service ˜ The Library of Congress

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History and Recent Trends
Continuing resolutions date from at least the late 1870s, and have been a regular part
of the annual appropriations process in the post World War II period. In fact, with the
exception of FY1989, FY1995, and FY1997, at least one continuing resolution has been
enacted for each fiscal year since 1954.5 (However, the two FY1977 continuing
resolutions did not provide funding for an entire regular appropriations bill. Instead, they
provided funding for only selected activities.)
Until the early 1970s, continuing resolutions principally were limited in scope and
duration, and rarely exceeded a page or two in length. They were used almost exclusively
to provide temporary funding at a minimum, formulaic level, and contained few provisions
unrelated to the interim funding.
Beginning in the early 1970s, conflict between the President and Congress over major
budget priorities, triggered in part by rapidly increasing deficits, greatly increased the
difficulty of reaching final agreement on regular appropriations acts. This conflict led to
protracted delay in their enactment. Continuing resolutions, because they historically have
been viewed as "must-pass" measures in view of the constitutional and statutory
imperatives, became a major battleground for the resolution of budgetary and other
conflicts. Consequently, the nature, scope, and duration of continuing resolutions began
to change.
Continuing resolutions began to be used to provide funds for longer periods, and
occasionally for an entire fiscal year when agreement on one or more regular acts could
not be reached. Further, continuing resolutions became vehicles for substantive legislative
provisions unrelated to interim funding, as it became clear that in some years continuing
resolutions would be the most effective means to enact such provisions into law. These
trends culminated in FY1987 and FY1988, following a period of persistently high deficits
and sustained conflict over how to deal with them.6 For those two years, continuing
resolutions effectively became omnibus appropriations measures for the federal
government, incorporating all of the regular appropriations acts for the entire fiscal year
as well as a host of substantive legislation covering a broad range of policy areas.7
From FY1988 through FY1995, Congress and the President achieved a series of
multi-year deficit reduction agreements. Starting in 1990, these agreements have included
5 For a listing of recent continuing resolutions, see U.S. Library of Congress, Congressional
Research Service, Continuing Appropriations Acts: Summary Data for Fiscal Years 1977-1995,
by Edward Davis and Robert Keith, CRS Report 95-78 GOV (Washington: December 30, 1994).
For a brief discussion of earlier periods see U.S. Library of Congress, Congressional Research
Service, Budget Concepts and Terminology: The Appropriations Phase, by Louis Fisher, CRS
Report 74-210 GGR (Washington: November 21, 1974).
6 For a discussion of these and other trends involving the use of continuing resolutions through
the mid-1980's, see U.S. Congress, House Committee on the Budget, The Whole and the Parts:
Piecemeal and Integrated Approaches to Congressional Budgeting, committee print No. CP-3,
prepared for the Task Force on the Budget Process by Allen Schick, 100th Cong., 1st sess.
(Washington: GPO, 1987).
7 See P.L. 99-591 and P.L. 100-202.

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enforceable limits on spending controlled in annual appropriations acts (so-called
discretionary spending). During this period of relative agreement on overall budge
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t
priorities, agreement on regular appropriations acts came more readily. Continuing
resolutions, when necessary, generally were more limited, contained far less substantive
legislation and were used mainly to provide interim funding for relatively brief periods.
During consideration of the FY1996 regular appropriations bills and continuing
resolutions, the President and Congress were in conflict over the 1995 balanced budget
plan and spending priorities in the fiscal year 1996 appropriations measures. As a result,
two funding gaps occurred, 14 continuing resolutions were enacted (including one
providing funding for six regular appropriations bills to the end of the fiscal year) and
action was not completed until almost seven months into the fiscal year.

Types of Continuing Resolutions
Continuing resolutions generally can be divided into two categories—those that
provide temporary funding and those that provide funds for the entire fiscal year.
Temporary continuing resolutions provide interim funding until a specific date or until
the enactment of the applicable regular appropriations acts. They have remained fairly
constant in form and structure in recent years. Typically, they establish formulas that
provide funding for programs and activities under the affected appropriations act(s) at a
level which is the lowest of one of the following: (1) the current rate (i.e., the previous
year's appropriation); (2) the rate provided for in the applicable regular act as reported to
or passed by the House (if any); or (3) the rate provided in the applicable regular act as
reported to or passed by the Senate (if any). (See, for example, Section 101 of P.L. 103-
88, approved September 30, 1993.) In earlier years, this funding formula sometimes
included the rate of appropriations as provided for in the President's budget as an another
option. (See, for example, Section 101(b) of P.L. 94-41, approved June 27, 1975.)
Virtually all of the temporary continuing resolutions in recent years have used some
variation of the formula that provides funds at the lower of the House or Senate passed
(reported) levels, or the current rate. In most cases, the formula has applied to all
programs or activities covered by a particular regular appropriations act. However, such
formulas also have been used to fund specific programs that were not covered by regular
appropriations acts because they were not yet authorized by law or for other reasons (for
example, Section 101 of P.L. 94-473, approved October 11, 1976). Once a temporary
continuing resolution is enacted, additional temporary resolutions, if necessary, may simply
extend the deadline in the initial resolution without changing the funding formula, or they
may include an updated formula that represents, for example, a later stage of congressional
action on one or more of the covered regular acts than had been reached earlier.
8 For background on these and other budget enforcement procedures, see U.S. Library of
Congress, Congressional Research Service, Manual on the Federal Budget Process, by Allen
Schick, Robert Keith, and Edward Davis, CRS Report 91-902 GOV (Washington: December 24,
1991); Budget Process Changes Made in the 102nd-103rd Congresses (1991-1994), by Robert
Keith and Edward Davis, CRS Report 95-457 GOV (Washington: March 31, 1995); and Budget
Process Changes Made in the 104th Congress (1995-1996), by Robert Keith, CRS Report 97-44
GOV, (Washington: December 27, 1996).

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Full-year continuing resolutions provide continuing appropriations for the entire
fiscal year or for that portion of the fiscal year remaining after the expiration of previous
temporary continuing resolutions. Typically, full-year funding provisions are one of two
types: (1) provisions that incorporate regular appropriations acts by reference to the latest
stage of congressional action (usually the conference agreement, if one has been reached);
or (2) the full text of the regular act.
Full-year continuing resolutions effectively become regular appropriation acts for the
fiscal year. Further, when continuing resolutions have included the full text of one or
more regular appropriations acts, they also have included all the myriad general and
administrative provisions (so-called riders) typically included in regular acts. (See, for
example, Section 101 of P.L. 100-202, approved December 22, 1987, and Section 101
of P.L. 99-591, approved October 30, 1986.) Consequently, they may be hundreds of
pages in length, whereas temporary resolutions typically are a few pages or less (in the
case of a simple extension of a previous resolution, perhaps only one page).
During consideration of the FY1996 continuing resolutions, Congress also used
targeted appropriations. Traditionally, continuing resolutions provide funding for all
activities in the outstanding regular appropriations bills. However, Congress separated
activities from the outstanding regular bills and distributed them among three FY1996
continuing resolutions. Congress distributed funding for activities in four of the six
outstanding regular bills among the three continuing resolutions. Funding for most of the
activities in the fifth regular bill (Foreign Operations) was provided in one of these
continuing resolutions and funding for the most of the activities in the sixth bill (District
of Columbia) in another.
Substantive Legislative Provisions. Substantive legislative provisions (i.e.,
provisions in the jurisdiction of committees other than the House and Senate
Appropriations Committees) covering a wide range of subjects also have been included
in some continuing resolutions. Continuing resolutions are attractive vehicles for such
provisions because they are considered must-pass legislation over which the President and
Congress eventually must reach agreement. Such provisions have been included both in
temporary and full-year continuing resolutions.
House rules that prohibit the consideration of general appropriations measures
containing legislative provisions or unauthorized appropriations do not apply to continuing
resolutions9 (though the House typically adopts special rules restricting amendments to
continuing resolutions, in part for this reason). Comparable Senate restrictions on
legislative provisions and unauthorized appropriations do apply in the case of continuing
resolutions, but these restrictions generally do not bar such provisions if the provisions are
germane modifications to a House-passed measure.10
Substantive provisions in continuing resolutions have included comprehensive
measures, such as omnibus crime control legislation (in FY1985) and foreign assistance
9 U.S. Congress, House, Deschler’s Precedents of the U.S. House of Representatives, H.
Doc. 94-661, 94th Cong., 2d sess., (Washington: GPO, 1989), Chapter 26, §1.2.
10 Currently, the prohibition against legislative provisions in most appropriations measures
is not in effect in the Senate.

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reauthorizations (in FY1984), that establish major new policies and amend permanent
provisions of law. They have also included narrower provisions focused on temporary or
one-time problems, such as special House and Senate procedures for considering certain
presidential requests for funding, temporary increases in the statutory limit on the public
debt, and provisions canceling or modifying a sequester order under the 1985 Balanced
Budget and Emergency Deficit Control Act (or Gramm-Rudman-Hollings). These
provisions vary in length from one page to over 200 pages (in the case, for example, of
the Comprehensive Crime Control Act of 1984).
Funding Gaps
Over the years, delay in the enactment of regular appropriations measures and
continuing resolutions after the beginning of the fiscal year has led to periods during which
appropriations authority has lapsed. Such periods generally are referred to as funding
gaps. Depending on the number of regular appropriations that have yet to be enacted, a
funding gap can affect either a few departments or agencies or most of the federal
government.
Funding gaps are not a recent phenomenon. In fact, by the 1960s and 1970s, delay
in the enactment of appropriation acts, including continuing resolutions, beyond the
beginning of the fiscal year had become almost routine. Notably, according to a 1981
GAO report, "most Federal managers continued to operate during periods of funding gaps
while minimizing all nonessential operations and obligations, believing that Congress did
not intend that agencies close down while the appropriations measures were being
passed."11
On April 25, 1980, Attorney General Benjamin Civiletti issued a formal opinion
which stated in general that maintaining nonessential operations in the absence of
appropriations was not permitted under the Antideficiency Act (31 U.S.C. 1341), and that
the Justice Department would enforce the criminal sanctions provided for under the Act
against future violations.12
In another opinion issued on January 16, 1981, the Attorney General outlined the
activities that could be continued by federal agencies during a funding gap. Under that
opinion, the only excepted activities include (1) those involving the orderly termination
of agency functions; (2) emergencies involving the safety of human life or the protection
of property; or (3) activities authorized by law. Activities authorized by law, fo
13
r
11 U.S. General Accounting Office, Funding Gaps Jeopardize Federal Government
Operations, GAO report PAD-81-31 (Washington: March 3, 1981), page i.
12 U.S. Dept. of Justice, Office of the Attorney General, Memorandum to the President.
April 25, 1980. As reprinted in Funding Gaps Jeopardize Federal Government Operations, ops.,
Appendix IV, pages 63-67.
13 For additional information on funding gaps, on the 1981 opinion of the Attorney General,
and on the excepted activities outlined in that opinion, see U.S. General Accounting Office,
Principles of Federal Appropriations Law: vol. II, GAO report GAO/OGC-92-13 (Washington:
December 1992), pages 6-92 - 6-99; and U.S. Library of Congress, Congressional Research
Service, Shutdown of the Federal Government: Effects on the Federal Workforce and Other
Sectors, James P. McGrath, CRS Report 95-906 GOV (Washington: August 15, 1997).

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example, include funding for entitlement programs, such as Social Security and Medicare,
that are permanently appropriated. In 1990, the Antideficiency Act was amended to
clarify that "the term ‘emergencies involving the safety of human life or the protection of
property’ does not include ongoing, regular functions of government the suspension of
which would not imminently threaten the safety of human life or the protection of
property."14
Accordingly, since 1981, whenever delay in the appropriations process has led to
periods of lapsed appropriations, federal agencies and departments lacking appropriations
generally have shut down all nonessential operations and furloughed nonessential
employees (although provisions of law have been enacted to ratify obligations and pay
employees retroactively). During late 1995 and early 1996, there were two funding
gaps—one lasting 21 days and the other lasting 6 (including weekends). In contrast
15
,
from 1981 through 1994, there were nine funding gaps, varying in duration from only one
to three days, some of which occurred over weekends. Most of these gaps occurred after
the beginning of the fiscal year, meaning that they were not caused because of a failure to
enact an initial continuing resolution, but because of delay in enacting a further
extension.16
On August 16, 1995, Assistant Attorney General Walter Dellinger, in a memorandum
for the Director of the Office of Management and Budget (OMB), stated that "the 1981
Opinion continues to be a sound analysis of the legal authorities respecting government
operations when Congress has failed to enact regular appropriations bills or a continuing
resolution to cover a hiatus between regular appropriations." The 1990 amendment, he
17
maintained, basically served to confirm the appropriateness of the 1981 Opinion.18
14 P.L. 101-508 §13213(b), 31 U.S.C. 1342.
15 Shutdown of the Federal Government: Effects on the Federal Workforce and Other
Sectors, ops., pp. 4-5.
16 See U.S. Library of Congress, Congressional Research Service, Continuing Resolutions
and Funding Gaps: Fiscal Years 1981-1995, by Robert Keith and Edward Davis, CRS Report 95-
77 GOV (Washington: December 30, 1994).
17 U.S. Department of Justice, Office of Legal Counsel, Government Operations in the Event
of a Lapse in Appropriations, Memorandum for Alice Rivlin, Director, Office of Management and
Budget (Washington: August 16, 1995).
18 For information on proposals to provide a fallback funding source (automatic continuing
resolution) to avoid funding gaps, see U.S. Library of Congress, Congressional Research Service,
Proposals for an Automatic Continuing Resolution, by Robert Keith, CRS Report 97-611 GOV
(Washington: September 8, 1997).