This is a big week in Washington. Congress is working through a number of significant pieces of legislation, including funding the government for fiscal 2022 (the government fiscal year ends on Thursday). With all of the partisan fighting going on, we find ourselves hearing yet again about the threat of a potential government shutdown. So we must ask ourselves — what could a government shutdown mean for the SEC this time around?
A few weeks after I joined Corp Fin back in 1995, there was talk of a government shutdown and we sat through a flurry of internal meetings explaining what might happen if the agency did actually have to shut down. Having only worked in the private sector before coming to the SEC, I recall thinking “what did I get myself into?” Thankfully, the partial government shutdown that ensued for 21 days back then did not impact the SEC’s operations — the agency found money from somewhere, and was able to continue normal operations. Government shutdowns that have happened since then generally followed that same pattern, where part of the government shut down but the SEC kept going. That was of course until the end of December 2018, when we saw the SEC’s operations were almost completely curtailed for almost a month until the shutdown ended on January 25, 2019.
Something that the 2018-2019 shutdown taught us is that you cannot count on the SEC’s ability to find “emergency” appropriations to keep the lights on, so be prepared for when the inevitable “real” shutdown happens. With each successive shutdown, we get more guidance from Corp Fin and we all develop more experience dealing with the consequences. During the prolonged shutdown in 2019, we dealt with some very knotty issues, such as dealing with pending registration statements (e.g., considering whether to remove the delaying amendment) and shareholder proposal no-action requests (e.g., considering whether to exclude a proposal without a Staff response). Given the present uncertainty, now may be a good time to take a look at the coverage of the Staff’s shutdown guidance from early 2019, and plan accordingly. If you have a registration statement pending with Corp Fin or are otherwise awaiting action from the Staff on some matter, reach out to your contact now so you can get a sense of the Staff’s timing. Also, begin making contingency plans, just in case a shutdown happens (and drags on more than a few days).
-Dave Lynn, TheCorporateCounsel.net September 28, 2021