Sunset Provision History in Washington

(Bloomberg View) -- The monumental, much-hated tax bill now under consideration in Congress contains plenty of abominations, but there’s one that stands out: the use of “sunset provisions” to camouflage its real cost. In the Senate version of the bill, individual tax cuts will expire after nine years.

But many of the bill’s sponsors have expressed confidence that Congress will in fact renew them before they expire. And if that happens, this “temporary” tax cut won’t fade with the sunset; we’ll be stuck with its budget-busting effects for good.

This is a cynical, mendacious way to justify a tax cut. But it’s also a profound betrayal of the ideals that led lawmakers to adopt sunset provisions in the first place.

The idea that laws should have an expiration date has roots in classical antiquity. For example, when the Senate of the Roman Republic passed legislation imposing special taxes or requiring military duty, they put a time limit on these obligations, insuring that they would not become permanent.

Thomas Jefferson resurrected the idea in a letter to James Madison written in 1789. He argued that laws passed by one generation should naturally expire within nineteen years -- the time it would take for another generation to come of age. Any law that remained on the books any longer would constitute “an act of force, and not of right.”

He conceded that future generations could repeal laws they no longer wanted. But this was easier said than done: “Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents; and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.”

Ironically, it was Jefferson’s political opponents, President John Adams and the Federalist Party, who used sunset clauses, attaching them to parts of the odious legislation known as the Alien and Sedition Acts, which criminalized political attacks on the president. But the laws expired at the end of Adams’s first (and only) term, insuring that they couldn’t be used against the Federalists if their political adversaries recaptured the presidency -- which they did when Jefferson became president.

Sunset laws remained exceedingly rare in the 19th and early 20th centuries. But as the federal government grew exponentially during the New Deal, William O. Douglas, the brilliant, iconoclastic chairman of the Securities and Exchange Commission, revived the idea. He advised President Franklin D. Roosevelt to limit the lifespan of regulatory agencies. Douglas wrote: “the great creative work of a federal agency is to be done in the first decade of its existence if it is to be done at all. After that it is likely to become a prisoner of bureaucracy.”

The idea went nowhere as the government grew and grew. In 1969, political theorist Theodore Lowi published “The End of Liberalism,” which argued that federal regulatory agencies had been captured by interest groups affiliated with the Democratic Party. These agencies, Lowi argued, had abandoned their original missions in favor of catering to these constituencies.

His solution looked to Jefferson for inspiration. He proposed a “tenure-of-statutes act” that would shutter any federal agency after five or ten years unless it could secure the necessary votes to continue its existence for another cycle. Lowi didn’t hope to eliminate all federal agencies, but he argued the specter of extinction would force bureaucracies to be more responsive to all citizens, not just the interest groups that supported them.

Lowi’s proposal resonated with many readers across the political spectrum. In 1973, a poll found that 73 percent of respondents who expressed dissatisfaction with the government agreed with the statement: “Elected officials have lost control over bureaucrats who really run things.” The economic doldrums of the decade, to say nothing of the political scandals, only heightened distrust of government.

Common Cause, an organization founded in 1970, seized on Lowi’s ideas. The head of the Colorado chapter, Craig Barnes, gave Lowi’s concept a new, catchier name: sunset law. (This was chosen to complement the new Watergate-era interest on transparency that produced so-called “sunshine laws.”)

The idea had genuine, bipartisan support: Republicans included it in their presidential platform in 1976, as did Democratic nominee Jimmy Carter. In Congress, politicians from both sides of the aisle crafted a bill sponsored by Common Cause that would have put a lifespan of only four years on virtually every federal agency, save for a few exceptions. If the bill had passed, government agencies would have to justify their continued existence as often as presidents did.

The bill died in committee, but nearly 40 states passed sunset laws. The results were mixed. Some critics believed that regular reviews cost more tax dollars than they would have saved had state agencies been left alone. Others, though, have found that the laws -- most of which have been neutered or repealed -- did in fact force greater accountability and oversight, with nearly one in five state-level agencies dismantled between 1976 and 1982, and many others downsized.

The sunset movement lost steam in the 1980s. It rose from the ashes as something very different: a gimmick used to pass tax cuts. In 2001 and 2003, President George W. Bush and Congress rammed through two separate tax cuts that relied heavily on sunset provisions to secure passage. By claiming -- rather disingenuously -- that tax relief would “sunset,” the Senate managed to avoid Senate rules that would have required both unlimited debate and a supermajority of 60 votes for passage.

As soon as Congress signed the legislation, its proponents immediately pushed to make the tax cuts permanent. And in 2013, Congress did just that, bloating the national debt to levels not seen since the end of World War II.

Now Republicans in Congress are relying on sunset laws to repeat this trick, with many openly saying that they expect the sun will never set on these latest cuts, either. In the process, what began as a way to reform government by forcing regular public debate on the role of government has now become a way to burden future generations with debt. Thomas Jefferson would not be pleased.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to Bloomberg View.

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