Thursday, December 27, 2012
Tax law constantly churns, somehow avoiding the molasses of the legislative process. A common critique levied against tax law is that there is too much legislative action, resulting in ever-changing rules. In reality, congressional gridlock, the theme of the symposium for which this piece is written, is ever-present in the tax context. Although Congress increasingly enacts a high volume of temporary, patchwork tax provisions, it fails to accomplish fundamental tax reform, which is a necessary part of any solution to the looming budgetary crisis. As a result, recent proposals to enact tax reform through an existing fast-track framework, the reconciliation process, or through an entirely new process aimed specifically at tax reform have gained popularity. These fast-track processes are more flexible than is often assumed and increasingly so, potentially offering relief from the filibuster in a variety of tax contexts, among other benefits. For instance, in 2010 and contrary to popular thought, Democrats had numerous procedural options available to them to enact middle-class tax cuts through reconciliation; the political will was simply not there.
Despite the growing flexibility of existing fast track processes, however, their truncated timelines and production of polarizing, unstable policies are antithetical to fundamental tax reform. A simple majority’s ability to shape such processes to its ends also threatens the precarious Senate truce over the filibuster by degrading the source of its staying power — the filibuster’s potential application to future, unknown legislative minorities. From an institutional perspective, this nontransparent, piecemeal approach to filibuster reform destabilizes Senate rules generally and contributes to partisan politics that make the achievement of tax reform even more remote. For these reasons, existing fast track processes should primarily be relegated to meeting annual deficit targets once tax reform is achieved. Learning from the undesirable features of these processes, this Essay proposes a set of framework procedures that have the potential to assist Congress in achieving fundamental tax reform over the next two years. In the near-term, a commitment to such a process may also help bridge the impasse over the fiscal cliff.