John McGinnis and I have an op ed on government shutdowns in today’s Wall Street Journal.  We note that government shutdowns typically have involved Democratic Presidents and Republican Congresses, and that Republican Congresses have usually both lost the fight and borne the brunt of the blame.  We note that “President Clinton faced off against House Speaker Newt Gingrich in 1995, and Mr. Clinton won.  President Obama dueled with the Republican House in 2013 and Mr. Obama won.”

While politicians and the media have recognized that the Republicans generally lose these fights, what is not generally appreciated is that it is the current legal regime that has largely allowed the Democrats to win.  At present, when there is a spending dispute and spending authority terminates, most government spending (with the exception of entitlement programs and essential services) ceases.  As a result the public bears serious inconveniences, which are easily blamed on the Republicans, since their “smaller-government message” can be “portrayed as aiming to deprive the public of government services.”

But a change in the legal regime would shift the advantage to the smaller government party.  The next Congress should reform the law

so that the public suffers less inconvenience when the political parties cannot agree on spending levels. In case of a government shutdown, the government would continue to spend on discretionary programs at a level close to the amount authorized by the previous year’s budget. A reasonable default target might be 95%.

Such a law could be a political game-changer. The public would be less likely to suffer serious inconvenience with spending at this default target, and a 5% solution would strengthen the leverage of the party favoring less spending, i.e., the GOP. A 5% cut would in any event be closer to what Republicans ultimately want. They could hold out for a deal preferable to the default, since there would be very low costs imposed on the public in the interim.

The op ed also has other recommendations, including “provisions to deter a president from increasing the political costs of a government shutdown” through the Washington Monument strategy of closing down popular government services.