More Laws Should Have Sunsets
The past weekend's Senate debate over the PATRIOT Act reminds us of the value of placing sunsets in legislation. For years, the National Security Agency had operated far beyond its statutory authorities. Congress repeatedly complained, but the agency inevitably continued doing as it thought fit. But thankfully, when the act was originally passed, Sen. Ron Wyden (D., Ore.) had insisted on including a sunset on Section 215's bulk information-vacuuming authorities. This expiration provision opened the window for a debate about the wisdom of these policies.
Too often, Congress enacts legislation in perpetuum. This habit has real costs for our democratic republic. Here are three reasons why sunset provisions should be included in more laws.
1. Creating agencies without sunsets all but ensures their immortality.
When an agency is established without an expiration date, it is almost impossible to abolish. Take Fannie Mae and Freddie Mac, the housing giants. They were established as quasi-governmental entities in 1938 and 1970, respectively. For 20 years, Congress has seriously debated winding them down, but entrenched interests have thwarted action. If Fannie and Freddie had statutory expiration dates, Congress would be forced either to recast them or abolish them outright.
For almost seven years now, Fannie Mae and Freddie Mac have been zombies, existing in conservatorship, a strange legal-financial limbo. Congress did not place them in this status — the Federal Housing Finance Agency did. It presumably could release them from conservatorship to return to business as usual. Few members of Congress have expressed support for this, but it easily could happen.
2. Enacting policies without sunsets strengthens the executive branch and weakens Congress.
Congress and the executive branch have a principal-agent relationship. Per the Constitution, Congress is supposed to legislate, and the executive is charged with carrying out those laws. But in practice, the White House and the agencies tend to execute the law in ways that suit their interests or ideologically colored interpretations. Policing the executive branch is challenging and time-consuming under the best of circumstances. Without sunsets, oversight becomes even more difficult, because government will grow of its own accord. Agencies expand their missions through regulations, and each new policy adds to the heap. Presently, there are about 120 executive agencies that collectively spend nearly $3.5 trillion per year. Congress cannot oversee all this activity, which leaves the executive branch an increasingly free hand. If more legislation had sunset dates, the growth of government might be slowed or even reversed.
3. Sunsets force Congress to conduct oversight and consider whether a policy is worth keeping.
Oversight is hard work. With so many other tasks to tend to (running for reelection, raising money, etc.), Congress does it less often than it should. Sunset provisions encourage oversight and establish accountability. As the expiration date approaches, legislators are forced to ask whether a given policy should be continued. Their decisions can have electoral consequences. The recent debate over reauthorization of the Export-Import Bank is illustrative. The bank was first chartered in 1945, and Congress has reauthorized it many times. In recent years, more congressmen have seen less rationale for keeping the agency. So, hearings have been held to debate questions like: Is the bank a success? Are its operations above-board or do they serve entrenched insiders? Is it advancing America's foreign-policy and economic interests? These are exactly the sort of questions the public's representatives should be considering.
Critics view the expiration of the PATRIOT Act's Section 215 provisions as a calamity. Already, they have alleged the nation's security is imperiled. Thus, some may argue that sunsets are dangerous, but this is bunkum. Congress already has queued up a new, less far-reaching NSA surveillance statute, which will become law in short order. If a policy is sufficiently important, history shows that Congress can and will reauthorize it quickly. Consider how short our government "shutdowns" tend to be.
Sunsets should be a regular feature of legislation. Without them, the growth of government and the attenuation of government accountability will continue.