Tipping point idea: Put a sunset provision on all federal laws

(To win over the electorate, conservatives have to be seen as a party with fresh ideas that benefit all Americans. This is the first in a series of Tipping Point posts, promoting ideas that will appeal to all voters, while becoming signature initiatives for conservatives and Republicans.)

United States Code

Did you know that the Code of Law of the United States (USC), which contains all the operative federal laws affecting your life is around 200,000 pages long and that, if one doesn’t count case annotations, it takes up about 6 feet of shelf space?  And did you know that the Code of Federal Regulations (CFR), which contains all the rules that agencies have enacted in order to apply thid federal law, occupies four times as much shelf space as the USC itself.  In other words, in the absence of a page count, one can be reasonably sure that the CFR far exceeds 800,000 pages.

Code of Federal Regulations

America’s common law has always held that “ignorance of the law is not excuse.”  That’s all well and good, but do you actually know your federal law?  I didn’t think so and, in all seriousness, nobody else does either.  We all know the big laws — don’t murder people, don’t cheat on your taxes, don’t download music without permission — but the devil for everyone is in the details.  The result is that citizens who believe they are law-abiding, may suddenly find themselves on the receiving end of a federal investigation.

The previous sentence implies that federal employees do know all this law.  They don’t.  They are reasonably conversant with the law in their area of expertise, and therefore do have that advantage over the ordinary citizen who cannot hire 24/7 legal counsel.  Otherwise, no, they don’t know it any better than you do.

What actually happens at the federal level is that a person or business comes to the government’s attention because of citizen complaints, political vendettas, or because the person or business is engaging in a specifically identifiable, but hard-to-prosecute illegal activity.  When that happens, the government looks at the person’s or business’s activities and then, through legal research, tries to see if those activities match anything prohibited under the federal laws and rules.

Al Capone at Alcatraz

Sometimes, this random approach to federal law is a good thing.  For example, back in the 1920s everyone knew that Al Capone was a mobster responsible for all manner of crimes.  The problem was that he was too wily for law enforcement, and they could never make any charges stick.  Some bright person in the federal government suddenly realized that, if the mountain won’t come to Mohamed, Mohamed must go to the mountain — and to that end, rather than trying to mesh Capone’s violent and offensive actions with some criminal law, decided to bring the tax code to Capone.

Capone was duly prosecuted for tax violations, and went to Alcatraz for seven years.  Although this wasn’t a long sentence, considering his terrible crimes, it was long enough that, by the time he came out, his rivals had taken over his criminal syndicate, leaving him with nothing but mental decline from the syphilis he acquired during his glory days.

Certainly we can celebrate laws that bring dangerous criminals to heel.  As often as not, though, the labyrinth of federal laws operates, not to haul in wily criminals but, instead, to trap the unwary.

Buried in paperwork

In addition to keeping a sword of Damocles over every citizen’s head, the plethora of unknown and unknowable federal laws has two profound effects on American society as a whole:  The first effect is that American’s are unable to rely on their legal system when they conduct their every-day activities.  The law, instead of being a reliable framework that allows people to plan for a stable, legal, and profitable future, instead becomes an arbitrary and capricious force, stifling economic activity.

If it will cost me hundreds of thousands of dollars to assemble the legislative information necessary to start a new business that won’t potentially land me in jail, I might decide that no business is worth that kind of start-up cost.  Nor is starting up a new business worth the risk that if, despite knowing the the laws that affect my business, I can still be undone by other areas of legislation and regulation that seem to touch upon my activities only marginally.

Struggling with paperwork

The second effect of laws and regulations that run into the millions of pages is that people lose their respect for the law.  Law should be seen as both the infrastructure for a stable, civil society and the lubricant that enables people to rub along next to each other without resorting to violence.  These basic functions only work, however, if people are capable of knowing the law.

What has happened in America, though, is that federal law has become an impenetrable maze that allows loopholes by the thousand for those rich enough or well-connected enough to exploit all those openings.  At the same time, federal law has becoming a meaningless background buzz for the ordinary citizen, who suddenly becomes aware of it only if he or she is unlucky enough to get trapped by one of its random, unknowable prohibitions or mandates.

What’s really tragic is that so many of these laws and regulations are useless or outdated.  To the extent that they have no current purpose, they exist only as traps for the unwary.  Until the trap is sprung, no one cares about these superfluous laws and rules and, if the trap springs in the government’s favor, the government has no incentive to purge them from the books.

Presidential candidates periodically announce that they’re going to trim back the CFR (I recall Al Gore getting this task in the 1990s), but it’s a boring job, so it never comes to anything — and meanwhile, Congress just keeps passing more and more laws, and the agencies enact more and more regulations.

Sunset

That’s where the idea of a Constitutional Amendment inserting a sunset provision in all federal laws (and their accompanying regulations) comes into play.  The Sunset Amendment would mandate that all federal law and their accompanying regulations automatically expire twenty years (or some other set time) after they go into effect.  The only way to preserve the laws and regulations would be for Congress to act affirmatively to vote on each law and reinstate it before it expires.

Three things should happen:  First, legislators will think twice about enacting laws that they’ll have to review again (and fight about again) in twenty years time.  Second, legislators will take more care writing the laws, since they and their aides will be tasked with wading through them and learning about their effects, along with working on current matters.  (Imagine if a Sunset Amendment had been in place when Obama’s Congress enacted all 2000+ pages of ObamaCare.)  Third, rather than undertaking the tedious work of reviewing patently irrelevant, obsolete, or failed laws, Congress will simply allow them to lapse without any discussion.

Of course, a Sunset Amendment would have to include a clause dealing with those laws and rules that are already on the books.  A practical approach would be to require that a specific number or percentage of laws and regulations would have to be reviewed and, if necessary, re-voted every year after the Amendment’s passage, for a set number of years, until each existing law and regulation has been voted upon or been allowed to expire.

Although cleaning up Federal laws and regulations is an issue that all Americans should embrace, and a burden that legislators should willingly shoulder as part of their job (not to mention a reasonable amount of work considering their salaries and pensions), it especially behooves Republicans and other conservatives to push for a Sunset Amendment.  The whole notion of “smaller government” makes sense only if we clean up old laws, in addition to enacting fewer, and less onerous new laws — and then we make sure that the law books don’t get cluttered up all over again.

If you think this is a good “sticky” issue to help Americans reach a tipping point that turns them towards smaller government, please take this idea and run with it:  talk about it on Facebook or Twitter; post it at your blogs (feel free to reprint this whole post, although I’d appreciate attribution); contact your Senators or Congressman; and bandy it about at the water cooler.  Good ideas make a difference only if people spread them around and then act upon them.

(Thanks again to Mike Devx for coming up with this good idea.)

 

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  • Robert Arvanitis

    Excellent idea, especially regarding taxes.  Let’s see them vote up or down to reimpose each break, subsidy and giveaway.
    Note that for this to work, laws much be published several months in advance, so the whole world knows whats up for vote.
    (By the way,there is a certain humorous value to old laws.  Oxford student once invoked the ancient right to small beer at exams.  Duly provided, but then fined for not wearing a formal sword to the exam.)

  • http://bookwormroom.com Bookworm

    That’s a lovely anecdote, Robert, and one that perfectly makes my point about laws being abused (by both government and citizens) for purposes unrelated to their original passage.

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  • weathtd

    The mess in the CFR is the very reason the Constitution is so important.  It serves the purpose of providing a framework much like the studs and supports of a house.  Think about how Congress has been meeting for over 200  years and passing law after law after law.  Reason would dictate that every law that needed to be passed has been.  However, each new session of Congress has to “make up something” to give the appearance of concern and productivity.  Most of the crap that’s passed each year has no logical purpose.  Repeal them all and start over!

  • JKB

    It was not all that long ago that the laws of the United States, federal and state, were knowable.  Here is a quote from an article published in 1887
     
    The writer of this article has for several years been occupied with a work which involved carful study and comparison of all the statute books of the United States.  And the statutes, however contemptuously the court of law regard them, are after all on the utterance of the people’s will.  They are the direct speech of the “One who has authority.”  
     
    The article, Ethics of Democracy, discusses by review of statutes the linkage between property rights, marriage and personal liberty.  As a word of warning, the viewpoint is a bit extreme even for the most ardent conservative.
     
    Therefore, without prejudice against any one proposed reform, it is impossible not to end, if not with the deduction , at least with the suggestion – that (for some reason which we will not now attempt to fathom) the three institutions – of private property, of marriage, and of personal liberty from State control – are so inseparably bound together that neither one may fall without the other two.

  • JKB

    I received an admonishment I’m very proud of while in federal service.  I was told in a performance evaluation that I shouldn’t worry so much about the CFRs.  Not the CFRs that got me in trouble was the agencies compliance by incorporation with internal rules CFRs covering safety applicable to private sector entities operating in the same environment.  In general, assuming you don’t end up in the Washington Post, government agencies routinely do not comply with applicable laws and regulations, or their internal equivalent.  Most often reason, it cost to much.  And that is how it remains until a death or serious injury starts the finger pointing.  At which time, the most junior person is crucified for not following regulations.  
     
    BTW, on interesting regulation glitch I discovered when I was trying to get the agency compliant with US export laws is that it is a violation of US export regulations to give a life jacket to a Cuban national or other citizen of countries designated as supporters of terrorism.  From the context, they meant buoyancy compensators used in diving but the rule says “life jacket”.  Would you be prosecuted?  Who knows but you can be administratively fined and never see a judge. 
     
    How is it that the mind devises and the hand executes with such nice adaptation of means to the end in view, a bridge, that resembles a spider’s web, and yet bears thousands of tons and endures for ages, but when it undertakes to legislate evolves statutes that wear out in a year? 
     

  • Ron19

    What’s the payoff to elected representatives at federal, state, county, city, district, board, and even lower levels to buy into and support and carry out sunset laws?  They barely have time to deal with the lobbyists and representatives of non-governmental organizations, not to mention the private citizens crabbing for new laws.
     
     
    To make a valid determination that a law or regulation should be retained, a majority of the legislators are going to have to study the entire legal and regulatory codes.  What happens when you rescind law G which redefines some words and phrases and clauses that laws J and M depend on, but are not scheduled for review this year?
     
     
    We are already complaining that the President and the Supreme court and all the lower courts are already doing their own ad hoc sunsetting.
     
     
    Twenty years (if not a lot sooner) after the sunset law is signed into law, guess what will be the first twenty year old law to be sunsetted?

  • Ron19

    From Ymarsakar in a different thread:
     
    “Only people who believe in the US Constitution as it now stands would agree to a sunset provision.”
     
    I forgot to mention in this thread the “Constitution and Constitutional Amendment Sunset Amendment.”

  • Danny Lemieux

    Brilliant idea.
     
    Keep the B******s occupied revisiting old legislation so that they don’t have time to dream up new mischief.

  • http://ymarsakar.wordpress.com Ymarsakar

    A good idea, but I don’t think Democrats and their list of blackmail material on Republicans, would accept this as a bill and especially not as an amendment. They know very well what this would cost in terms of bribes and political power to have to continue repassing laws that favor their cronies. They will simply kill it.
     
    If one looks at the history of Sanger’s eugenicism, she and others of her alliance knew that getting the US mainstream political body to pass such a law focused on aborting inferior fetuses would never wash, for they lacked the power to enforce it as well as to get it through legislation. So they worked from the bottom up, like a guerilla resistance movement. This inevitably resulted in the organization called Planned Parenthood, which has its own supporters, agents, profiting allies, and business allies.
     
    The 90% of several millions in damages paid as a result of law suits, how much of that is passed? How long before tort reform comes about? It cannot come about because the lawyer lobby stops it, and that’s not even one of the more powerful political alliances in the US.
     
    Until one destroys the evil at the heart of the problem, rather than nibbling around the edges, nothing gets accomplished and nobody knows why for it is always that other guy’s fault.
     
    Revolutionary and resistance movements often try persuasion and negotiation at first, but usually their lack of power and the resistance of the ruling elite, convinces them to take on more practical, effective measures. In the US, it is often hard to tell who the resistance and who the rulers are, since they seem to interchange propaganda positions ever 4 years or so. But it only “appears” so.
     
    It’s far more important to push through a decisive action, and get it into power first, without having to convince anyone than it is to waste large amounts of energy and time fighting the enemy and giving the enemy time to setup defenses. There may be necessary compromises, but the goal should always be to behead the enemy leadership, not setting up the means of compromise as an end in itself.
     
    A war cannot be won with merely excellent ideas. One must necessarily find the soldiers to enforce the grand strategy. In a war against evil, sometimes even that is not enough.

  • Spartacus

    1) Ron19 has a good point — it would make the most sense to revise not bill-by-bill, but code-section-by-code-section, as sometimes a bill may simply change a small section of code from, e.g. “… not more than 30 days…” to “… not more than 60 days…”
     
    2) The same should go for treaties: it is wrong for a Senate that doen’t know what the world stage will look like in ten years to be binding us twenty years in the future.  Along with a provision explicitly spelling out that no treaty provision is valid if enforcement of that provision would require powers not normally delegated to Congress (to prevent end-runs around the Constitution on the pretense that “Well, we have to do this… we signed a treaty with Guyana which requires it.”
     
    3) Want to force change to happen at a reasonable pace?  Require all new legislation and regulations to be typed up… on the same computer… with copy-paste disabled… by a Member of Congress.  And there could be a little window into the room in the capitol building where this happens, along with a second computer monitor on the wall outside so that tourists could watch Congressman Fumblefingers (D-FF) hamhandedly peck his way through a stack of printed documents sitting next to him while being constantly nagged by some GS-8 from the Code Reviser’s Office, “Sir, you missed another semicolon…”

  • Danny Lemieux

    “The same should go for treaties: it is wrong for a Senate that doen’t know what the world stage will look like in ten years to be binding us twenty years in the future.”
     
    Excellent point, Spartacus – make our (e.g., NATO) allies deserve to continue to participate in treaty arrangements instead of taking us for granted. A 20-year sunset clause on NATO may have provided a useful check on European tendencies to fob-off their defense responsibilities on us.  

  • http://ymarsakar.wordpress.com Ymarsakar

    Nato is seeing how useful US defense is now a days.