In Congress, sunset clauses are commonly passed but rarely followed through
The idea was that democracy needed an alarm clock.
Outdated laws were piling up. Bad ones weren’t being fixed. So lawmakers turned to “sunset clauses” — expiration dates forcing Congress to reconsider old laws before they disappeared.
Instead, Washington’s current crisis reveals that the sunset clause has become something unintended: democracy’s snooze button.
The current Congress has already pushed back at least a dozen laws’ expiration dates, often with minimal debate. Now, lawmakers are also scrambling to decide whether to delay various tax measures as part of the broader debate over the “fiscal cliff.”
It marks a sad end for an earnest good-government idea. As Congress spends its time extending sunsets, a tool meant to stop procrastination is now used to make procrastination look like work.
“The trouble with sunset clauses is usually they’re not enforced, because Congress is either too busy — or, more accurately — too neglectful,” said Rep. Jim Cooper (D-Tenn.). He said he still believes in the theory: A “sunset clause is a very appropriate remedy. But it’s got to be enforced to mean anything.”
The huge looming budget cuts, for instance, were the punishment lawmakers set to make themselves slash the budget before now. They didn’t.
But crisis also involves a set of sunsetting tax laws, which Congress now wants to extend before they disappear for good.
One expired measure keeps something called the alternative minimum tax from hitting a broader swath of middle-class families. Lawmakers have been pushing back the expiration of this “patch” since 2001. Time is up again.
Also expiring is a package of miscellaneous tax breaks called “tax extenders.” The total package could be more than $100 billion.
But the biggest items on the list are tax cuts approved under President George W. Bush in 2001 and 2003. These originally carried a sunset date in 2010. That provision was added so the cuts could pass with a simple majority while also calming many lawmakers worried about the deficit.
“This bill contains sunset provisions’ — critical to my decision to support this legislation — which will allow us to revisit the components of this bill in the future,” Sen. Dianne Feinstein (D-Calif.) told her colleagues back in 2001. She voted yes.
Feinstein did not respond to requests for an interview on the issue last week.
When 2010 came, Congress pushed back the sunset for the tax cuts to 2012. Now, it seems certain that the vast majority of the cuts will be extended again. The fight between President Obama and House Republicans is over whether to allow some to expire for the highest earners, or about 2 percent of all federal taxpayers.
Obama, in essence, wants a tiny sunset. Republicans want none at all.
“You can’t do it right” if you use sunset clauses this way, said Roberton Williams, a senior fellow at the nonpartisan Tax Policy Center. The clauses have served to hold Congress’s feet to the fire, he said, but the deadline is too tight.
“The problem is, it doesn’t get [Congress] to do anything logically,” he said. “We’re sitting there screaming with hot feet. We’re not doing anything with the brain.”
The problem with sunsets goes far beyond the current crisis. Indeed, a look back at the past two years of this congressional session shows that Capitol Hill has become like Alaska in summertime, a land where a sunset rarely arrives.
Last year, for instance, the House considered moving the expiration date on the U.S. Parole Commission. This body has now been on borrowed time for 20 years. When Congress banned parole for new federal prison inmates in the 1980s, it decreed that the commission would not be needed after 1992.
But a problem arose: Who would handle parole for the subset of long-serving inmates who were still eligible to get it? Congress didn’t answer that question; it moved the sunset.
First to 1997. Then, to 2002. Then to 2005. Then to 2008, then to Nov. 1, 2011. Finally, with a few weeks left before the 2011 deadline, Rep. Lamar Smith (R-Tex.) stood up to urge the House to pass the “United States Parole Commission Extension Act of 2011.” He said the decision about how to actually abolish the commission should wait until “some point into the future.”
In other recent cases, a sunset clause did perform part of its intended function — dragging an old law back out of the code books, and forcing Congress to debate it anew.
“We will be having a real debate about how we can stop terrorism but also preserve freedom at the same time,” Paul said then. He urged Congress to reconsider powers it had given law enforcement in the frightened days after the Sept. 11, 2001, terrorist attacks.
Paul lost that fight. The rules stayed on the books. Only the sunsets changed, extended to 2015.
Actual expirations remain rare. There are some examples, like a federal assault weapons ban that expired in 2004, or the independent counsel statute in 1999. But it’s difficult to find others: inquiries with the Office of Management and Budget, the speaker of the House and the Senate librarian recently failed to turn up any other major recent examples.
“Sunset has a real mixed bag of results in Washington,” said Rep. Kevin Brady (R-Tex.). He’d like to see Congress use a more systematic approach, as happens in the Texas state government — where every agency gets a regular top-to-bottom review, and 78 programs have actually expired.
All this was not exactly what the inventor of the sunset clause envisioned.
“I’m older than all of them now,” said Cornell University professor Theodore Lowi, who proposed the idea in a 1969 book he wrote while at the University of Chicago.
Lowi, 81, is actually still younger than a handful of representatives and senators. But he was right that the vision of a self-correcting Congress, returning to closely reexamine its own work, has not survived its encounter with the real-life Congress.
“I’d like to sit ’em down,” Lowi said in a phone interview. “And say that ‘I’m your papa. And you should be ashamed of [yourselves].’ ”