Revisiting: Mandatory Sunset Clauses

So, in the “Why is Prostitution Illegal” thread, some dopers mentioned the stubborn inertia laws have, because though a law might be unpassable were it attempted to be put in force today, it is also politically difficult to take a stand against them, various drug laws and prostitution being the prime examples.

There is a cure for this: mandatory sunset clauses. Every law that is passed has a sunset clause, after which it expires totally, unless passed again. Maybe four years, maybe ten years, I don’t know what would be right. But this would certainly counteract the inertia lamented by some (including me). Bonus points if it magically applied to all laws on the books as well, instead of just new laws.

But would it create more problems than it solved? Are there other benefits to consider?

Did you just see the political hullabaloo in the past few years over first extending the Bush tax cuts and then the Obama payroll tax cuts? You saw how those became major political issues, right? You want to do that with every law on the books?

Do you think that every law on the books is so contentious? I would consider our republic a massive failure were that the case.

But, I don’t like answering questions with questions. So: yes. I want to do that with every law on the books.

I think it would lead to a lot of uncertainty, since no one would know what laws would be kept and which would be scraped. Do we really want the EPA to have to be dismantled every time the GOP is in power, and then reconstructed every time the Dems get in? Whether you like the EPA or not, that kind of uncertainty and periodic regulation is the worst of both worlds.

I think it wouldn’t lead to your desired result, since prostitution and drug enforcement laws remain on the books because voters and politicians support them, not because they don’t “sunset”.

I think it would lead to a lot of playing chicken with passing or not repassing necessary laws to gain ground on unrelated policy issues (as with the budget ceiling or Senate appointments under the current system).

I think it would just tie up an already not particularly well-functioning US Congress by making them redebate every law on the books every few years.

So I award this idea no points, and may God have mercy on your soul.

The payroll tax cuts weren’t contentious. Both partys agreed that they should be extended. But they still managed to spend large amounts of time and energy bickering on the issue. Bizarrely, even generally agreed upon issues have become grounds for never-say-die political grudge matches.

I can imagine a group of Republicans refusing to vote for a law to make murder illegal unless it included a flat tax amendment.

Well, if you are going to create an unprecedented requirement for government to enact only transitory laws, you are going to change the whole nature of our republic.

Would you consider the game of football to be a failure if the rules were suddenly altered to remove the ball from the game? For any organized activity that can exist, if you change the fundamental assumptions that created the activity, such as that laws are permanent unless changed, you are going to upset the apple cart.

Let me ask a question about your assumptions here. You seem to be concerned that we have too many laws on the books, and that periodic review of the laws may result in the elimination of some.

Have you considered that this periodic review could really backfire? We all know how, when facing re-election, politicians like to be tough on crime. For example, mandatory minimums: one of the surest ways for a politician to be perceived as being a law & order sort is to propose that the penalties for whatever crimes happen to be in the news be upped. Thus, we ended up with situations where the mandatory minimums for possession of power cocaine were substantially less than the minimum sentence for possession of crack cocaine.

Requiring criminal laws to be reviewed every several years is like setting up the “tough on crime” bowling pins to be knocked down by the “tough on crime” pandering politicians.

My biggest problem with this proposal is that it puts massive regressive pressure on the legislature. Without constant pushes forward the law naturally resets to the past, undoing any progress made (in either direction).

I think mandatory sunset clauses are a good idea to overcome a lot of inertial laws; however, it can’t go by itself in the current system because we’d absolutely start to see things that most people still want get held hostage as part of getting other legislation passed.

The biggest issue is that you’d need to make sure that you fall back to a state that makes sense if it does expire. To give a simple example, imagine there’s a law setting a price on something to something reasonable, and it continues to get updated periodically for a few decades. What happens if it expires 30 years from now, does the price drop to today’s standards, meaning it’s suddenly unrealistically low accounting for inflation? Or imagine that some federal bans on some drugs expired without any provisions for regulating them.

So even with sunset clauses, we’d need to have some way to make sure things don’t fall through the cracks or get held up because it could create some situations far more undesirable than simply letting bad laws stay on the books. Then again, letting an important law expire maybe ought to be feared as badly in the upcoming election cycle as would be passing an unpopular one now.

How so? Laws are already inherently transitory, in that they can be repealed or amended at any point.

I understand your objection, but I think this makes laws too strong. The rules of the game, so to speak, are constitutional amendments, which—though I didn’t explicitly mention it, I’m sorry—would not be subject to such sunset clauses automatically.

I do believe there are too many laws, but it is difficult to argue well since there really isn’t applicable data or a handy metric for it. But that isn’t really a concern to me. The concern to me is that there is a belief—which I share—that laws are easier to pass than to repeal. This is a problem for a free society. Currently the flow is basically not neutral, it is towards more and more regulation of everything. I’m no small-government crony (anymore) but this lack of balance is troublesome to me. It’s possible my suggestion is not the best solution, but I don’t know what else could be.

Interesting thought. Though it was clear it could backfire in some ways, it might backfire in general because auto-sunset might mean people were more lackadaisical about which laws are actually passed. “What’s the big deal, it will expire in X years anyway, we’ll get by.”

Perhaps. I doubt it, but perhaps. I think it might mean that pandering as a political activity will be radically impossible, because politicians will actually have to vote on things, rather than just say they’ll do things they pretty much won’t do.

There are an awful lot of laws that a polity needs, in order to stay sane and functional. If the legislature needs to repass each and every one of those laws every decade, there just isn’t going to be enough time for them to do it all.

We insist the police get a warrant every time, even if they have an excellent record of honesty. The analogy is a little strained, I know. But humor me on that point a little.

As it stands, some laws, for example certain laws on regulatory matters and tax breaks are frequently subject to sunset, since the idea behind them is that maybe by the time 5 or 10 years have gone by either the problem will have been solved or the market will have changed and a different set of regulations or breaks will be needed. So a cut in capital gains taxes, a cap on emissions of substance ABC, etc., you can pass and say “in 5 or 10 years we’ll check again and see if things are looking up and if so we can then decide if we make it permanent, go back to the statu quo ante or need to take even further maesures”.

General criminal and civil law OTOH does not sunset, as the premise is that they are based on principles and objectives that the society values as, if not permanent, at least worthy of stability until such a time as the society itself changes its values and no sooner. Unless your society stops believing so… in which case passage of a repeal is in order, or until a court finds it unconstitutional. Who can inherit, when does someone have to pay for damages to others, what happens if you take something not yours, what happens if you sex up a 13-year old, these things are not fixes to provisional situations that will pass in 5 years’ time. Even if the burglary or fraud rate drops by 90% over 10 years you’ll still need to prosecute burglars and ripoff artists. Even if the housing and financial markets collapse and folks are trading McMansions for turnips you still have to figure how to divy up the turnips when the homeowners divorce.

Making everything sunset would not help much with superfluous laws, since what keeps the legislature from just issuing continuance after continuance? That is the norm – grand Games of Chicken like the recent Debt froofraw are only for those issues on which at that particular time there is a potential for high political yield to go with the high risk. No legislature I know would establish a “blank slate” anarchistic sunset on most penal and civil law: what they’d do is decree that upon sunset of this statute with no action to continue or replace it, the law on the matter reverts to statu quo ante, which is NOT necessarily unruled by any statute.

Though to be clear on the matter, most criminal law in the US is a State matter, and many (most?) states have provisions in their Constitutions restricting or banning such kind of “rider”. Most they could do is hold passage of Bill A hostage to passage of Bill B.

I think the way you get around this is to have some sort of period-doubling scheme. Laws are for 5 years to start with. After the next approval they last for 10 years, then 20 etc. Eventually, the good laws last effectively forever and the bad laws expire quickly.

I like the proposal overall. I think the most compelling ding against it is the idea that you could be left in a weird state if Law A depends on Law B but then Law B expires and Law A is left full of holes.

I am not terribly worried about political brinkmanship occurring at every sunset. Sure, they’d hijack some things (“medicare is history unless dividends are tax free”) but unpopular laws would vanish much quicker than they do now. I expect you’d want some lesser threshold (30% and no filibusters!) so re-up an existing law to reduce the risk of hijacking.

I think it is the act of voting which would change things. It’s like the old moral dilemma of the runaway train about to run down a bunch of workers, unless you change tracks to kill just one worker, or push a guy off the platform to stop the train, or etc. Voluntary action is significance to people.