Sunset provisions Chris Mooney, writing

Sunset provisions

Chris Mooney, writing in the magazine Legal Affairs, traces the history of statutory sunset provisions, here: "A Short History of Sunsets".

Mooney says the modern debate over sunset provisions began in the late sixties with a proposal by political scientist Theodore Lowi to incorporate sunsets into laws creating new federal agencies. The idea was subsequently taken up by the government reform proponents in the 1970s. The hope was that sunset provisions would force people who favored programs and agencies to periodically bear the burden of proof of re-justification.

The sunset movement had more success in getting sunset provisions at the state than the federal level. However, sunset provisions did not generally have the results that had been expected by their proponents:

"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 the last half of his article, Mooney looks at the recent use of sunset provisions in the Patriot Act and in the two big Bush Administration tax cut bills.

Those interested in the history of sunset provisions might also be interested in this history of legislative riders: "Riders from Hell ".

I learned about the sunset article from Tyler Cowen at Marginal Revolution: "Against sunset laws".