One nation, under too many laws

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By Philip K. Howard
Sunday, December 12, 2010

Philip K. Howard, a lawyer, is the chair of the legal reform nonprofit Common Good and the author, most recently, of "Life Without Lawyers."

America is choking on laws of our own making.

Once a law is in place in the United States, it's almost impossible to dislodge. Our political class assumes that, after a law is forged in the crucible of democracy, it should be honored as if it's one of the Ten Commandments - except it's more like one of 10 million.

We even have a hard time modifying laws that were explicitly designed to be temporary. Just look at the current battle over the Bush-era tax cuts.

Having that debate at all is unusual. Once enacted, most laws are ignored for generations, allowed to take on a life of their own without meaningful review. Decade after decade, they pile up like sediment in a harbor, bogging the country down - in dense regulation, unaffordable health care, and higher taxes and public debt.

A healthy democracy must make fresh choices. This requires not mindless deregulation but continual adjustment of laws. Congress could take on this responsibility if it followed a simple proposal: Every law should automatically expire after 10 or 15 years. Such a universal sunset provision would force Congress and the president to justify the status quo and give political reformers an opening to reexamine trade-offs and public priorities.

Unless forced to make tough choices, Congress will keep kicking the can down the road. The looming crisis of the national deficit, for example, is impossible to address without changing existing entitlement programs. But when the co-chairs of the National Commission on Fiscal Responsibility and Reform announced their proposals last month, including modifications to Medicare, the condemnation from Congress was swift. "This proposal is simply unacceptable," said House Speaker Nancy Pelosi. Even Rep. Paul Ryan, a Republican member of the commission who preaches fiscal discipline, refused to vote for the proposals.

"It's not true that bipartisanship is dead in Washington," Will Marshall at the Progressive Policy Institute recently observed. "There's a perfect bipartisan conspiracy to bankrupt the country."

On the other hand, the political scuffle over ethanol subsidies - with Republican fiscal hard-liners facing off against Republicans from farm states - shows how sunset laws can reinvigorate democratic debate. Critics have long questioned billions of dollars in subsidies (last year, $7.7 billion) for a product known to have serious environmental drawbacks. The issue has come to a head, however, only because ethanol subsidies, like the Bush tax cuts, are set to automatically expire at the end of this year.

Sunset laws have been proposed from time to time, and they were a domestic priority for President Jimmy Carter. "Too many Federal programs have been allowed to continue indefinitely," he wrote to Congress in 1979, "without examining whether they are accomplishing what they were meant to do."

But that effort stalled and, 30 years later, accumulated law has become a defining problem of modern democracy. To an amazing degree, our government's choices are dictated by political leaders who are long dead. Health-care programs and Social Security - eating up about 70 percent of each year's federal revenue - don't even come up for annual authorization and are not limited by a budget. Many programs outlived their usefulness decades ago: New Deal subsidies intended for starving farmers now go mostly to corporate farms ($15 billion annually), and inflated union wages on government contracts (more than $11 billion per year), another relic of the 1930s, have the effect of limiting public works and employment.

The political debate skims the top of this vast legal pile, though most of the problems are embedded in the structure underneath. Take health care: The Republican House leadership vows to repeal or cut back the recent "government takeover," which it calls unaffordable. But the unaffordability of American health care - which costs twice as much as care in other developed countries, with worse outcomes - is mainly caused by preexisting programs. In this bureaucracy, every incentive is misaligned. Elaborate reimbursement guidelines encourage expensive procedures, with no incentives for physicians to be prudent. Patients with insurance see health care as an entitlement, allowing hypochondriacs to clog doctors' waiting rooms. But neither party, we now know after the lengthy debate on health-care reform, will take the political risk of challenging these wasteful practices.


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