WHAT COULD BE wrong with a reform supported by Sens. James O. Eastland and Edward M. Kennedy, embraced warmly by The Business Roundtable and Common Cause, and repeatedly endorsed by President Carter - a reform unanimously approved by the Senate Government Affairs Committee in June and enacted into law by 16 state legislatures in the last year alone?
Plenty, if the reform is "sunset" legislation.
To be sure, at a time when attacking the government bureaucracy is as popular as jogging, sunset laws have an obvious appeal. Government, and consequently goverment waste, have grown dramatically in recent decades; once a program is launched, Congress rarely reexamines its underlying rationale; therefore, say sunset proponents, an "action-forcing" mechanism is needed to terminate periodically all federal programs unless a program can justify its continued existence to Congress.
Two pending sunset bills are S. 2, sponsored by Sen. Edmund S. Muskie and 41 others, and S. 600, with a stellar sponsorship including Sens. Robert Byrd, Abraham Ribicoff and Charles Percy, S. 2 would halt the authority to spend money for government functions which are not reapproved over a six-year cycle. S. 600 would scrap agencies and their supporting laws if not reapproved over an eight-year cycle. So while S. 600 focuses on the programmatic content of federal regulation, S. 2 takes on the entire spending side of the federal budget.
Undoubtedly, the task of reapproval is massive, but no one knows just how massive. The number of programs to be reviewed depends on who is defining the term "program." While a Governmental Affairs Committee "table of federal programs" lists 1,250 units, the Senate Rules Committee estimated there could be 50,000 programs.
Even taking the lower figure, Congress would have to review more than 200 programs per year under S. 2, or better than a program a day that Congress is in session. Colorado's sunset process, involving just 13 regulatory agencies a year, is one thing; one program a day is quite another.
As is, members of Congress are so busy that a recent House poll found that members were able to use only an average of 11 minutes a day for reading. All of which substantiates Sen. Thomas F. Eagleton's complaint that, "I hear my colleagues mutter about how we senators are becoming captive creatures of our burgeoning office and committee staffs; with sunset, 'burgeoning' may well become 'bloated.'"
The workload problem cannot be easily dismissed, especially for a proposal which would guillotine agencies if Congress did not act. Given this burden and the fact that the Congress, like college students, does most of its work at the end of the term, the likely result would be a perfunctory thumbs-up or thumbs-down on many programs. Yet such a cursory review is the very evil to which sunset is addressed.
Worse is sunset's inherent bias against "people" programs - those protecting consumer health and safety, safeguarding civil rights, aiding the needy.
While it is not difficult to tally up the costs to business of health and safety legislation, such as the Auto Safety Act or the Occupational Safety and Health Act (OSHA), it is inherently impossible to quantify the benefits to society. How do you put a price tag on the avoidance of cancer in future generation because the government prohibited an employer from using carcinogens?
Due to powerful corporate opposition, these "people" programs often require a catastrophe or prolonged gestation to come into existence. Tough food and drug laws were passed in the wake of the 1938 elixir sulfanilamide and 1962 thalidomide tragedies; the struggle to create an Agency for Consumer Advocacy is now in its eight year. Their extinction should not depend on a successful filibuster or a presidential veto. Opponents of these social programs - needing only 145 House votes or 34 Senate votes to sustain the veto of a Ford-like President - would have undue leverage over the content of fundamental programs. It shouldn't be so easy to scuttle what took so much deliberation to create.
As Sierra Club official Carl Pope has written, "By the end of Gerald Ford's unelected term in office, under some sunset proposals we would have lost the Clean Air Act, the Clean Water Act, OSHA and possibly NEPA [National Environmental Protection Act]. Each of these would have been up for review, and none would have been signed by the President in effective form."
HUMAN WELFARE programs usually have diffuse and unorganized constituents: welfare mothers; consumers who may buy a dangerous drug or car; workers who may lose an eye. Corporate where program usually have politically powerful constituents, such as major contractors for weapons systems or the merchant marine for the Federal Maritime Commission. In the struggle to keep Congress from failing to renew their programs, the latter are far better equipped to play power politics.
For example, the most prominent federal agency terminated has been the Office of Economic Opportunity (a benefit program for poor people), not a Department of Commerce (a benefit program for big corporations). The Senate Banking Committee recently voted to abolish the Renegotiation Board, an agency which benefits taxpayers generally but is strongly opposed by military contractors seeking the highest profits possible.
When S. 2 was considered by the Governmental Affairs Committee, the section which subjected "tax expenditures" to sunset review was deleted. "Tax expenditures," which total about $125 billion annually, are non-collected taxes that mainly benefit corporations and the wealthy. Senators, notably Finance Committee chairman Russell B. Long, successfully complained that the possible termination of tax expenditures would create "uncertainty" and undermine investor "confidence."
But what about the "uncertainty" of states dependent on federal aid to education, and what of the "confidence" of consumers that airplanes are safe because of a Federal Aviation Administration? "The Congress has determined that the program which provides for the subsistence needs of aged, blind and disabled persons would continue in force unless and until modified by subsequent legislation," said a study of sunset legislation by the Finance Committee staff. "In establishing this program on a 'permanent' basis, Congress was likely motivated by the belief that a poor, aged, blind or disabled person should not have to worry each year - or even once every five years - about the security of his benefit payments."
Nor will it suffice for proponents of sunset to argue that their approach merely forces oversight and that, in practice, few or no agencies will be abolished. To establish credibility, sunset reviewers will be prone to operate on Voltaire's maxim that the British had to "kill an admiral from time to time to encourage the others."
TO SAY THAT the sunset solution is defective is not to say that the problems of inadequate congressional oversight and executive agency misregulation are not real. Yes, Congress must exercise ultimate control over federal programs. So why not instead require congressiona committees (i.e., an "action-forcing" mechanism) to undertake periodically a "zero-based" review of the cost, performance, need for and alternatives to all federal programs and tax expenditures? A program or authorization would then be eliminated only if Congress affirmatively passed legislation, but not if it did nothing.
This shift in burden would help protect against extinguishing agencies, in the words of the Senate Finance staff report, "through scheduling inadvertencies or from being held hostage by a President or by a determined minority interest against the will of the majority of Congress." For Congress to insist that elimination result from non-action betrays a lack of confidence in its own ability to act where necessary.
The Congressional Budget Office, "zero-based" reviews by federal agencies of themselves and a reinvigorated congressional "oversight" process are all recent phenomena. They should be able to demostrate their collective potential before enacting into law a mechanistic approach that confuses slogans for reform - a "draconian cure," according to a report of the House Subcommittee on Oversight and Investigation, "that may be worse than the alleged illness."