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Thursday, June 30, 2011

Kysar: Lasting Legislation

Rebecca Kysar (Brooklyn) has published Lasting Legislation, 159 U. Pa. L. Rev. 1007 (2011). Here is the abstract:

This Article argues that, due to certain pathologies of 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 nontemporary 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, 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.

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