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January|February 2004
Mrs. America By Nadya Labi
A Short History of Sunsets By Chris Mooney
Daughters of the Cold War By Michael Freedman

A Short History of Sunsets

The Bush Administration has used sunset provisions to get skeptical legislators to sign on to controversial bills. But will the sun ever set on the Patriot Act or the Bush tax cuts?

By Chris Mooney

SAY WHAT YOU WILL ABOUT GEORGE W. BUSH, he knows how to appreciate a good sunset. Rather than the end-of-the-day, margarita-sipping kind, however, our president prefers sunsets of a more arcane and less romantic sort. Some of the most important bills Bush has signed into law during his tenure as chief executive have included so-called "sunset" provisions, which cause the laws to expire after a fixed number of years. The first Bush tax cut, passed in 2001, terminates at the close of 2010. The 2003 tax cut, which slashed taxes on capital gains and dividends, contains various features that expire before 2013. Aspects of the USA Patriot Act phase out at the end of 2005.

At first glance, such provisions might seem to represent a victory for the bills' adversaries, compromises that will force Congress to rethink the laws in a few years, when cooler heads (and perhaps a new president) might prevail. But it would be a mistake to view the sunset provisions in the tax bills and the Patriot Act this way. Though the Bush Administration may have preferred, all things being equal, to do without them, the inclusion of these provisions helped get the laws through Congress—and there's little reason to believe the sun will ever set on these statutes.

There is some doubt, in fact, that the sunset provisions in key Bush Administration bills will survive long enough to take effect. No sooner had the laws been passed than their Republican backers launched a pre-emptive strike, criticizing the sunsets and attempting to undo them. Last June, the Republican-led House of Representatives voted to make permanent the repeal of the estate tax contained in Bush's first tax cut, which had been subject to a sunset clause. Also last spring, Utah senator Orrin Hatch floated the idea of repealing the Patriot Act's limited sunset provisions because, as he put it, "terrorists will not sunset their evil intentions."

Repealing a sunset before it takes effect seems at best disingenuous when without that sunset the law might not have passed in the first place. But even if their efforts to repeal the sunset provisions fail, Republican strategists are banking that the laws will be renewed anyway. Just after Bush signed his capital gains and dividend tax break into law, the conservative columnist George Will noted that because Democrats fear being accused of raising taxes, "the sun will set on few, if any, of these cuts." Sunsetting a tax cut can be characterized as a tax hike, and sunsetting a bill like the Patriot Act can be said to reduce the government's ability to fight terrorism. Their efforts to remove sunset provisions notwithstanding, conservatives seem confident that ending the tax cuts or the Patriot Act will never be politically viable.

This is not how sunsets were supposed to work. Sunsetting was once heralded as a cure-all to the ills of inefficient government, a legislative device capable of eliminating obsolete and antiquated statutes and of keeping stodgy regulatory bureaucracies efficient and effective. But what was once a weapon for good-government reformers has been transformed in recent years. Under the Bush Administration, sunsetting has been reduced to a spoonful of sugar that helps controversial legislation go down.

THE HISTORY OF SUNSETTING stretches back to the writings of Thomas Jefferson. Though he didn't use the word, Jefferson believed that a version of sunsetting sprang directly from natural law. "Every constitution . . . and every law," he wrote, "naturally expires at the end of 19 years," which was considered the length of a generation in his era. The infamous Sedition Act of 1798, designed to protect the Federalist president John Adams from criticism, had a provision requiring the law to terminate once Adams left office.

The contemporary concept of sunsetting dates from the idealistic political reform movement of the 1970s, which sought to transform a U.S. government considered bloated, inefficient, and beholden to special interests. The University of Chicago political theorist Theodore J. Lowi, now at Cornell University, proposed the idea of legislative sunsetting as a way of shaking up stagnant government bureaucracies. In his 1969 book The End of Liberalism, Lowi, a thinker on the political left, excoriated the Democratic Party's embrace of "interest-group liberalism," which he defined as a political philosophy that looked to the executive branch and its various regulatory agencies to improve the lives of citizens.

The problem, as Lowi saw it, was that these agencies wound up catering to the established interests with whom they regularly did business. To combat this tendency, Lowi suggested a "tenure-of-statutes act" that would set a "Jeffersonian limit of from five to ten years" on the life of every law creating a federal agency. The objective was less to make these agencies disappear than to use the termination date to achieve what Lowi called a "guillotine effect," sparking effective legislative oversight and possible reorganization of agencies that had grown too big for their britches.

Lowi's idea didn't have much traction at first, but it gained momentum as part of the post-Watergate push for government accountability and reductions in bureaucracy, which Jimmy Carter made a centerpiece of his 1976 presidential campaign. Such efforts were supported by the good-government advocacy group Common Cause, which had been launched in 1970 by John Gardner, Lyndon Johnson's secretary of health, education, and welfare. It was the Colorado chapter of the organization (the first state chapter to be created) that coined the term "Sunset Legislation" in 1975 to describe laws like Lowi's tenure-of-statutes act. Sunset laws, Colorado Common Cause founder Craig Barnes recalls, originated as a "companion concept" to another reform: "sunshine" legislation, designed to increase government transparency by prohibiting secret meetings. "I can remember saying something like, 'My God, we've done sunshine, how about sunset?'" said Barnes.

The term stuck—"a good cry is half the battle," said Lowi—and in 1976 Common Cause pushed for a federal sunset law, denouncing both the influence of entrenched interests on long-established government agencies and the general inefficiency of regulatory bureaucracy. Senator William Roth of Delaware, a Republican supporter of the bill, complained that "to handle water-pollution research and development, Congress has created 25 bureaus in 14 different departments or independent agencies." The ambitious Common Cause bill would have subjected virtually all federal programs to strict review and evaluation every four years. (An exception was made for Social Security and a few other programs.) By the spring of 1977, the sunset law, championed by Democratic senator Edmund Muskie of Maine and supported by President Carter, headed the Congressional agenda. Once in committee, however, the bill was bottled up by legislators who favored more oversight but opposed the automatic expiration of government programs and the bill's "rigid structure of evaluation."

The states were a different matter. Colorado passed the nation's first sunset law in 1976. By the early 1980s, 34 other states had followed suit. For the most part, the provisions set up formal review processes for state regulatory agencies, licensing bodies, and other boards and commissions and used the threat of termination to give the review process teeth. Still, full-sized state bureaucracies, such as departments dealing with education, transportation, or natural resources, rarely underwent review. Even with smaller agencies the procedure didn't always work as planned.

By setting a termination date on a particular law, a sunset provision is supposed to shift the burden of proof onto those seeking its extension. But once a law has been in effect for several years, it may come to have considerable staying power, as constituencies and interests dedicated to its continued existence develop. "In theory, sunset was sold as a process to terminate a board or agency unless the agency could demonstrate the need for regulation," noted a 1981 report by the Council of State Governments. "In practice, . . . often the burden of proof has been on sunset audit agency staff to demonstrate that regulation was not necessary."

The threat of termination forced government bodies to analyze the effectiveness of their regulations, but agencies defended their turf fiercely against the sunset process. The more established the agency, the more powerful its inertia. Proving Lowi's original insight, special interests with an investment in the status quo worked to save the lives of benefactor agencies. Few state government bodies were actually sunsetted out of existence, and legislators viewed sunset reviews as one of their most demanding and least rewarding tasks.

The results of the sunset process were, consequently, dismal. In 1978, The New York Times reported that under Colorado's sunset law $212,000 in state funding was spent to review 13 agencies. This led to the termination of just three small agencies, a savings of $6,810. Colorado wasn't unique: In Nebraska and Louisiana, every agency scheduled to expire was re-established by the legislature. In Alabama, even the process was an utter embarrassment: "The House of Representatives ran through the nearly 300 separate sunset resolutions in quick succession," noted The Washington Monthly at the time. "Many representatives left the chamber, giving their young pages instructions on how to vote for them."

The experience of the 1970s suggested that sunsetting is incapable of forcing sustained review of already-passed laws. In his 1982 book A Common Law for the Age of Statutes, Yale legal scholar (and now federal appeals court judge) Guido Calabresi argued that only the most radical sunset laws could overcome the powerful inertia created by a law's passage. "Getting a statute enacted is much easier than getting it revised," he observed.

THOUGH CALABRESI HAS HELD TO THESE CRITICISMS, not all scholars share his skepticism. On September 20, 2001, as Attorney General John Ashcroft was lobbying for what would become the Patriot Act, Bruce Ackerman, a colleague of Calabresi's, argued in The Los Angeles Times that any such legislation should include a sunset provision requiring it to lapse after two years. "It is one thing to pass emergency legislation; quite another to make it a permanent part of our law," he wrote. In making his case, Ackerman cited the independent counsel statute—which had a five-year sunset and was allowed to lapse in 1999, in the wake of Kenneth Starr's investigation of President Clinton—as an example of a law containing a successful sunset provision.

According to Dick Armey, who was the House majority leader at the time, it was his office that came up with the sunset idea, beginning to consider it shortly after September 11. "I thought it up and I fought for it," Armey said recently. Whoever originated the idea, civil libertarians in both political parties—Republican F. James Sensenbrenner and Democrat John Conyers of the House Judiciary Committee, among others—adopted it, including a two-year time limit in the original House version of what would become the Patriot Act.

That rather stringent sunset provision was an early casualty of the legislative process, however, and it was replaced by a sunset less swift and less sweeping. At first, Armey called the two-year sunset "a very important matter with a lot of our members" and attributed the bill's bipartisan support largely to that provision. But House leaders swapped that bill at the last minute for one they had worked out directly with the White House, which pushed reconsideration of the act from 2003 back to 2006. The Senate bill, meanwhile, didn't call for any kind of sunset, as Senate Judiciary Committee Chairman Patrick Leahy lacked the political clout to demand one.

During the reconciliation of the two bills in committee, Armey and Leahy ultimately agreed to a four-year sunset provision. But the provision applied only to some parts of the act, not all of them. A provision allowing noncitizens to be deported if they engage in "terrorist activities"—which the law broadly defines as committing a crime with the help of "a weapon or dangerous device (other than for mere personal monetary gain)"—has no sunset. Neither do a number of other controversial provisions, including one that allows intelligence and immigration officials access to grand jury information, one that defines "domestic terrorism" in a way that critics allege could apply to some forms of civil disobedience, and two that increase the government's power to deny entry to the United States to certain individuals.

According to Leahy spokesman David Carle, there's a logic to which elements of the law have sunsets attached to them. At the time of the Patriot Act's passage, civil libertarians were most concerned about new powers sought by the government under the Foreign Intelligence Surveillance Act, which governs national security surveillance conducted within the United States. But former GOP congressman Bob Barr, a leading critic of the Patriot Act who now works at the American Conservative Union, sees no rhyme or reason to which elements of the law have sunsets and which do not. "Many of the parts that are more controversial are not sunsetted," Barr said. He cited the notorious Section 213, which permits law enforcement officials to conduct so-called sneak and peek searches without notifying individuals that they are under suspicion. As if to acknowledge Barr's point, Leahy and a bipartisan group of senators recently introduced a law that would add sunsets to a number of the act's originally un-sunsetted provisions, Section 213 included.

The holes in the Patriot Act's sunsets bother Barr, but he's also skeptical that any sunset would provide an effective check on the act. "I'm not a great fan of sunsetting because the government will find a way to get around it," he said. Barr is not alone in his suspicion. Many legal thinkers question whether it's possible to sunset a national security bill. "A sunrise following a sunset," said Lowi, would be "highly probable in the national security field." During a recent Connecticut Law Review symposium on the Patriot Act, Wesleyan University government professor John Finn argued that even a sunset that covered the entire law would not be effective. When the provisions of the law that are sunsetted come up for renewal, asked Finn, how many legislators will stand up and support the elimination of previously enacted national security measures? "What politician wants to say, 'You're right. I voted for the revocation of the USA Patriot Act and two weeks later the Sears Tower got blown up'?" Finn asked.

Finn's discussion drew upon other countries' experiences with antiterror legislation. In the United Kingdom, the supposedly temporary antiterror laws passed in 1974 in response to Irish Republican Army bombings in Birmingham that killed 21 people ended up being renewed in 1976, 1984, and 1989 before the word "temporary" was finally removed. During deliberations in 1983 over the renewal of the Prevention of Terrorism [Temporary Provisions] Act, one member of Parliament noted that the law's very passage had in some sense facilitated its renewal: "The power to detain suspects for seven days, which produced a shock on both sides of the House in 1974, now hardly causes an eyelid to flutter . . . . [T]his is an example of an insidious circular process in which draconian laws soften us up for similar laws which become the desired standard for further measures."

But Ackerman and others question the relevance of the British experience to the Patriot Act sunsets. "The Brits have had a problem for 25 years in Northern Ireland. That's not our situation," said Ackerman. Legal scholars Eugene Volokh of UCLA and H. Jefferson Powell of Duke add the following point: Party discipline in the British parliamentary system is much stronger than in the United States, making it easier for the party in power to get whatever it wants—including tough antiterror laws.

The picture, then, might not be entirely bleak. Indeed, Jim Dempsey, the executive director of the civil-libertarian Center for Democracy and Technology and a leading opponent of the Patriot Act, believes that the law's sunset clause has aided Congressional oversight. "Without the clause," he said, "the Executive Branch would be less inclined to respond" to the inquiries of legislators, who the Justice Department fears might take away its new tools of law enforcement in a few years.

Perhaps the clearest indication of the challenges awaiting the Patriot Act came when Orrin Hatch proposed repealing the act's sunsets in April. Leahy threatened a floor fight, saying that Hatch's amendment "would give up the ghost of any meaningful oversight about how the government is using these sweeping powers," while Sensenbrenner decreed that the act would be made permanent "over my dead body." Given the civil-libertarian leanings of many influential House Republicans as well as Democrats, a spirited battle may yet take place over the Patriot Act in 2005. In July, the House of Representatives voted overwhelmingly to repeal the act's sneak and peek searches provision, and to date more than 150 U.S. communities have passed anti-Patriot Act resolutions.

THE SUN SEEMS FAR LESS LIKELY TO SET on Bush's various tax cuts. Commentators agree that the sunsets put Democrats in a politically untenable position, since any efforts they make to enforce sunsets will lead to accusations that they are raising taxes.

Sunsets aren't unheard of in the taxation arena, notes Matthew Gardner, a senior policy analyst at the Institute on Taxation and Economic Policy, but the use of sweeping sunset provisions in the tax code under the Bush Administration represents a massive departure from previous tax policy. In the past, tax sunsets have affected only minor provisions known as "extenders." Today, thanks to the Bush tax cut bills, trillions of dollars in government revenue depend upon whether or not various sunset provisions take effect. If none of the sunsets in any of Bush's three tax cut bills were to take place, the total government revenue loss between 2001 and 2013 would rise from $1.7 trillion to between $3.6 and $4 trillion, according to a study by Brookings Institution tax experts William Gale and Peter Orszag.

Despite the trillions of dollars at stake in these looming tax cut sunsets, the sunset included in Bush's 2001 tax cut was barely noticed when it passed the Senate in its original form. Republicans introduced their version of the tax cut as part of the budget "reconciliation" process, which exempts certain fiscal laws from the ordinary Senate rules allowing unlimited debate. This meant the law could pass the Senate with 51 votes as long as it stayed within the bounds of a previously passed 10-year, $1.35 trillion budget resolution. But there was a catch: the "Byrd rule," named for West Virginia Democrat Robert Byrd. The rule, which governs the reconciliation process, stipulates that bills aiming to adjust government revenue outside of the preset 10-year budget window require a 60-vote supermajority.

Originally, the Bush Administration had aimed for a tax cut whose components would be phased in—and become permanent—by 2011. To avoid the supermajority requirement, the Republican Senate Finance Committee chairman Charles Grassley attached a sunset to the proposed tax cut, requiring the entire bill to expire on September 30, 2011, thereby skirting the Byrd rule and the need for 60 votes. The bill passed 58-33.

As if to acknowledge that the sunset was nothing but a means to an end, Republican leaders, along with President Bush, began clamoring for its repeal almost immediately after the bill passed. Without the sunsets, though, the president "might still be trying to pass the bill to begin with," according to Robert Bixby, the executive director of the Concord Coalition, a nonpartisan fiscal discipline advocacy group.

The 2003 Bush tax cut was perhaps more hotly contested than its predecessor, requiring a tiebreaking vote by Vice President Dick Cheney to pass the Senate. This time the bill used sunsets to keep it within a previously set budget target of $350 billion; if the sunsets are repealed or not acted on, the price tag of the cut could double or perhaps triple. Just after the bill passed, House Speaker Dennis Hastert commented, "The $350 [billion] number takes us through the next two years, basically . . . but also it could end up being a trillion-dollar bill, because this stuff is extendable." And the 2003 sunsets, like those in the 2001 bill, came under attack almost immediately.

"Before the ink was dry, the supporters of the bills were calling for them to be made permanent," said Joel Friedman, a senior fellow at the Center on Budget and Policy Priorities. "So it's clear: They just included the sunsets to get over whatever temporary constraint they faced."

TO THEODORE LOWI, the result is nothing short of a bastardization of his original idea. "The way they're doing it now, I would have no part in that," he said. Sunsets, once the brainchild of the left, have given the Bush Administration political cover. Because of impending sunsets, Democratic presidential candidates will also be forced to take stands on whether or not to repeal the Patriot Act or to roll back Bush's tax cuts. This difficulty has already tripped up some candidates. While Howard Dean and Dick Gephardt are on record in favor of a full repeal of Bush's tax cuts, Gephardt seemed distinctly uncomfortable when questioned about taxes on Meet the Press in September. Asked by host Tim Russert how he planned to tell Americans that he intends to hike their taxes, he responded, "I will tell the American people that we need an economic plan." When Russert tried again, Gephardt again resorted to evasive maneuvers. "I'm gonna have an economic plan that is gonna be fair, that is gonna move us in the right direction," he said gingerly.

In the present, the Democratic hopefuls can be forgiven for trying to avoid the fate of Walter Mondale, who proposed raising taxes in 1984 and lost 49 states. In the future, given that sunsets have been transformed from an instrument of better government into a clever political trap, lawmakers shouldn't put off fighting laws today because they think they'll be able to defeat them tomorrow.

Chris Mooney last wrote for Legal Affairs about America's unincorporated territories.

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