71 Pages Posted: 2 Mar 2006
This Article provides an overview and critical analysis of sunset provisions in the tax code, and through examination of the political pressures that led to their striking transformation, also reveals disturbing points of vulnerability in the legislative process. It concludes that, contrary to one of the primary justifications for the enactment of sunset provisions - that these provisions reduce the influence exerted on lawmakers by interest groups - sunsets may instead further politicize the legislative process and, due to their mechanics, increase the likelihood of inefficient social outcomes. The history of sunset provisions in tax legislation also illuminates the complex, multidirectional, and often dramatic interaction between the budgetary process and other political ends. Additionally, it suggests that, when budgetary and tax legislative processes intersect, budgetary concerns supplant debate over and achievement of traditional tax policy goals.
First, this Article explores how sunset provisions in recent tax legislation serve to avoid checks on legislative behavior in the budget process and, post-enactment, further affect the budget process in myriad ways. Next, it demonstrates that the continual termination of certain tax benefits and burdens creates opportunities for politicians to extract votes and campaign contributions from those parties who are affected by the threatened provision. And, because lobbying on behalf of legislation requires significant resources, sunset provisions reward well-connected and well-resourced players, an advantage which increases across time, in the competition for the extension of sunsetted legislation. Accordingly, the availability of sunset provisions may shape tax legislation to benefit only those groups that have the concentration of interests sufficient to motivate such long-term rent extraction. Finally, through analysis of the "kill the code" proposals advocating the sunset of the entire tax code and of the fallout from the use of sunsets in recent tax acts, this Article revisits the democratic rationales for sunsets. Concluding that the inherent attributes of these provisions do not impart legislative flexibility or ensure efficient, restrained lawmaking - and that they instead lend themselves to all the aforementioned pathologies - this Article casts doubt upon the legitimacy of sunset provisions as legislative tools.
Keywords: Taxation, Tax Law, Sunset, Sunset Provisions, Political Economy, Rent Extraction, Rent Seeking, Interest Group, Budget
JEL Classification: K10, K34, P16, D72, E62, H20, H24, H21
Suggested Citation: Suggested Citation
Kysar, Rebecca M., The Sun Also Rises: The Political Economy of Sunset Provisions in the Tax Code. Georgia Law Review, Vol. 40, No. 2, March 2006. Available at SSRN: https://ssrn.com/abstract=887388