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Lasting Legislation

63 Pages Posted: 9 Feb 2011 Last revised: 29 May 2013

Rebecca M. Kysar

Brooklyn Law School; Fordham University School of Law

Date Written: February 8, 2011

Abstract

This Article argues that, due to certain pathologies in the legislative process, legislation enacted with sunset provisions lacks benefits hailed in recent scholarship, while also harming the political process and its output. Proponents have argued that such "temporary legislation" enhances fiscal responsibility because official-cost estimates reflect the full cost of the legislation. The cost estimates, in other words, relay the entirety of expenses to Congress upon each sunset date. In contrast, when enacting non-temporary legislation, the theory goes, Congress receives official costs only for the duration of the budget window, or the length of time set forth in the annual budget resolution, as the relevant period within which Congress makes spending and revenue decisions.

This theory is flawed. Many factors - shifting baselines, exceptions to the revenue offset or "pay as you go" rules, costs that temporary legislation engenders beyond the budget window, and the ability of lawmakers to consider the full cost of legislation - thwart the theoretical fiscal restraint of temporary legislation. Nor do sunset provisions tend to provide lawmakers with enhanced information or flexibility, as proponents of temporary legislation have argued; instead, lawmakers likely will be unable to determine the appropriateness of the sunset, or its most effective scope and length. Furthermore, "pro-temporary legislation" scholars understate the costs of such legislation because temporary legislation increases rents from interest groups, entrenches current majoritarian preferences, and produces planning conundrums for public and private actors alike.

Accordingly, this Article recommends a policy presumption against temporary legislation, and in favor of legislation that does not expire by its own terms, or "lasting legislation." This presumption should be stronger in the context of provisions made temporary due to budgetary constraints, namely most tax legislation, where the identified concerns are more likely to arise, and weaker in emergency or experimental situations, where the identified concerns are less likely to exist.

Keywords: temporary laws, sunsets, budget, tax, legislative process, extenders, fiscal restraint, political economy, entrenchment, interest group, rents

Suggested Citation

Kysar, Rebecca M., Lasting Legislation (February 8, 2011). 159 U. Pa. L. Rev. 101 (2011); Brooklyn Law School, Legal Studies Paper No. 217. Available at SSRN: https://ssrn.com/abstract=1757883

Rebecca M. Kysar (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

Fordham University School of Law ( email )

113 West 60th Street
New York, NY 10023
United States

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