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.)
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.
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.
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.
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.
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.
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.)
