Sunset commissions

Sunset commissions are generally appointed panels that review the efficacy of and need for government programs and departments. The commissions then make recommendations for changes, cutbacks or the elimination of those programs or departments. Federal sunset commissions would generally subject the programs and departments of the federal government to such review.

Proponents of sunset commissions say they will reduce waste, fraud and abuse in federal programs and departments. Critics say they enable politically motivated cuts in programs with little opportunity for public input that would not otherwise make it through Congress.

In 2006 there were several proposals to create sunset commissions by Republicans in the House of Representatives.

Background
Legislation proposed in the House of Representatives in 2006 would create a “sunset commission”: an appointed&mdash;not elected&mdash;commission with the power to recommend whether federal programs live, die, or get reorganized.

Proposals for sunsets have circulated in the past but never seriously advanced. In the 109th Congress the concept gained some steam after the White House released its own proposal for sunsets and reorganization authority. The issue accelerated during negotiations over the House budget resolution. The Republican Study Committee, a group of some of the most conservative members of the House GOP caucus, demanded guaranteed floor consideration of sunsets as one of the conditions for securing its members’ votes on the budget. House leaders agreed to the RSC’s demands.

Legislation in 2006
Several sunset commission bills were filed in the 109th Congress:
 * Abolishment of Obsolete Agencies and Federal Sunset Act of 2005, H.R. 3282 (THOMAS info page), sponsored by Rep. Kevin Brady (R-Texas) and 111 others.
 * Federal Agency Performance Review and Sunset Act, H.R. 3277 (THOMAS info page), sponsored by Rep. Kevin Brady (R-Texas) and two others.
 * Commission on the Accountability and Review of Federal Agencies Act, H.R. 2470 (THOMAS info page), sponsored by Rep. Todd Tiahrt (R-Kansas) and 72 others.

The two main bills in 2006 were H.R. 3277, which was supported by the Bush administration, and H.R. 2470, which was supported by the Republican Study Committee.

Elements in common

 * Both bills would create an appointed commission, whose members would be selected in part by the White House.
 * Both bills would submit the commission's recommendations to Congress for an up-or-down vote, with limits on debate and no opportunity for amendment.
 * Both bills give the commission authority to hold hearings and request goverment documents and testimony by goverment employees.

The White House Bill
Opportunity for secrecy: The commission would be exempted from the balance and open government requirements of the Federal Advisory Committee Act. The commission is expected to hold public hearings and meetings about its work only “to the extent appropriate.” The commission is encouraged—but not required—to provide for public participation through hearings or comment periods. Forcing programs to plead for their lives: All government programs would be forced to plead for their lives every 10 years. The commission would pay special attention to any program reviews conducted by OMB, and it would base decisions on criteria such as whether the program duplicates other programs or the private sector. Death is automatic: Programs would automatically die two years after the sunset commission recommendations are filed with Congress, unless Congress affirmatively reauthorizes the program or grants a two-year reprieve. The automatic expiration applies even if the commission assessment is positive. Exemptions: The White House bill exempts any program “related to enforcing” health, safety, civil rights, or environmental regulations “unless provision is made for the continued enforcement of those regulations.” It does not, however, require that any “provision ... made” for continued enforcement be at the same level of funding as the expiring program.

The RSC Bill
Forcing programs to plead for their lives. The RSC bill would review all government programs once, make its decisions, and then sunset the commission itself. The commission would be empowered to demand any information from agencies. The commission would have subpoena power and could request court enforcement of its demands. Following the White House’s lead: The RSC bill would essentially codify OMB’s Program Assessment Rating Tool by requiring the White House to systematically assess all programs. These assessments would guide the commission’s work. Exemptions: The RSC bill would exempt the Department of Defense and entitlement programs. No mention of public participation: Whereas the White House bill contemplates (optional) public participation, the RSC bill makes no mention of a role for stakeholders.

Opposition to sunset commission legislation
Advocacy groups including OMB Watch, AFSCME, NRDC, Public Citizen, National Low Income Housing Coalition, National Head Start Association, National Women's Law Center, and National Association for the Education of Young Children have raised objections to the proposals in the House. Their arguments include the following:

About the Proposals
The RSC is reportedly working on a brand-new proposal that draws its elements from the three leading sunset commission bills currently in the House.

Some of the features from the three bills that advocacy groups such as OMB Watch are concerned about include the following:

Unelected commission: The bills would force programs to plead for their lives in front of an unelected commission with the power to recommend whether they live or die. Two bill would have the White House appoint commissioners, while one (H.R. 3282) would have congressional leadership appoint a mix of members of Congress and the public.

Shutting the public out: There is no requirement that the public be heard on the value of the programs on the chopping block. One bill (H.R. 3277) would even allow the commission to hold its meetings in secrecy.

Death is automatic: Two bills (H.R. 2470 and H.R. 3282) would mandate that programs die after they are reviewed—even if the commission thinks they should be saved—unless Congress actually acts to save them.

Back on the treadmill again and again: Two bills (H.R. 3277 and H.R. 3282) would force programs to plead for their lives on a periodic basis, such as every ten years or every twelve years, thus perpetually reopening old debates on civil rights and other national priorities.

Silencing your elected representatives: Two of the bills (H.R. 2470 and H.R. 3277) would have the commission recommend whether programs live, die, or get “realigned” — and then force those recommendations through Congress on a fast-track, take-it-or-leave-it basis that limits your representatives’ ability to save the programs you care about.

Weak exemptions: Two of the bills would exempt certain programs from the chopping block, but advocacy groups argue that those exemptions are weak.


 * One (H.R. 2470) would exempt the Department of Defense and any entitlement programs – although that bill is sponsored by the Republican Study Committee, which has argued elsewhere that defense and entitlements should not be excluded. Additionally, entitlements rarely stand alone:  abused and neglected children in foster care, for example, benefit not only from the Title IV-E entitlement but also from an array of services for mental health care, child welfare, adoption assistance, community-based care, and so on.


 * Another (H.R. 3277) would exempt programs related to the enforcement of public interest regulations, but that exemption would not apply to programs that are important to public protections but unrelated to enforcement per se (such as research programs that close data gaps).

What’s at Stake
Many of the organizations opposed to the legislation make the following arguments:


 * There is no need for them. Congress already has the power to reorganize government programs when it determines the need to do so. Congress creates agencies by statute in the first instance, and it revisits their effectiveness and continued existence each year in the budget process. The sunset concept would usurp power from Congress by entrusting unelected commissions with important decisions about all government services.


 * They would muzzle Congress when careful discussion is needed most. Decisions about the structure, function, and very existence of government services are too important to be ripped from the representatives who have been democratically elected to make them. Decisions this crucial — about the government’s priorities on issues such as health care, retirement security, environmental protection, and even homeland security and defense — deserve the full debate and consideration of elected bodies. Current proposals would give the White House the power to ram major changes to government through Congress and impose such severe limitations on debate that they would muzzle our elected representatives from speaking on these vital issues.


 * They would decrease agency effectiveness. Agencies would be distracted from their missions of protecting the public by defending themselves against extinction or being restructured into irrelevance. The result is agency staff would be forced to divert time and resources that should be devoted to their statutory missions of protecting the public. Meanwhile, key battles that were fought and won in the past over civil rights, human services, and more would have to be fought again and again every 10 years.


 * They invite yet more cronyism. Sunset commissions are envisioned as being exempted from the open government and balance requirements of the Federal Advisory Committee Act. The commissions could therefore be packed with industry lobbyists and representatives from industry-funded anti-regulatory think tanks, and they could conduct their business—about important issues of the structure and function of government services—in secrecy. There are provisions in the White House proposal for public hearings and other forms of stakeholder participation, but those provisions are merely optional.


 * Important programs would be at risk. With sunset commissions, the White House would get a second chance at attacking the same programs that Congress has prevented it from cutting or eliminating… only this time, Congress would have its hands tied behind its back.

Is It Good Government?
Proponents of sunset commissions marshal good government arguments to support sunset commission proposals. Advocacy groups offer counterpoints to those arguments.


 * Cutting waste: Sunset commission proponents are looking in the wrong place if they are looking to cut waste, argue advocacy groups. It would be wasteful to force all programs – even those for which there is no question that we need them – to plead for their lives, after they have already gone through authorization, reauthorization, and annual appropriations processes in Congress.


 * Eliminating duplication: Many of the programs held up as being duplicative instead, upon closer inspection, turn out to serve different populations.  Others are “duplicative” on purpose:  the Appalachian Regional Commission, for example, which the White House has assessed negatively for duplicating other existing government programs, was created because the severely impoverished and geographically isolated populations of Appalachia were not adequately receiving the benefit of federal programs. Social problems are complex and may require multiple programs attempting multiple solutions.


 * Too many programs: Some proponents of sunsets like to point to the number of programs serving the same problem.  The numbers can be misleading:  even if there are 19 programs targeting substance abuse, for example, that does not mean that the federal government is doing too much work on that problem.  Moreover, 19 programs do not mean 19 separate offices with 19 separate staffs:  many times, a single government agency administers several different “programs,” such as several different kinds of grants.


 * Accountability: Advocacy groups argue that accountability means helping the people maintain control over their own government; it should not be the excuse for policies that divert government resources away from the important work of addressing the public’s unmet needs.

Support for sunset commissions
Rep. Todd Tiahrt has said his bill would make sure that federal programs were fully evauated in a way that Congress lacked the time to do. He also said it would reduce duplications in programs and get rid of those that were no longer needed.

Rep. Kevin Brady cited sunset commissions operating in 24 states and Texas, where he said they had reduced goverment spending by 36%.

External resources

 * Sunset Commissions Resource Center, from OMB Watch's Regulatory Policy Program
 * THOMAS info page for H.R. 3282.
 * THOMAS info page for H.R. 3277.
 * THOMAS info page for H.R. 2470.

External articles

 * Osha Gray Davidson, "Bush's Most Radical Plan Yet," Rolling Stone, April 21, 2005.
 * SusanHu, "Dead By Sunset: Kill it, and make it look like an accident," DailyKos, April 23, 2005.
 * SusanHu, "Rolling Stone writer answers YOUR Qs on 'Sunset Commission'," DailyKos, April 26, 2005.
 * Michelle Chen, "Unelected Panel Could Guide Federal Budget Ax," The New Standard, May 5, 2006.
 * Jenny Mandel, "Panel debates competing bills to 'sunset' federal programs," GovExec.com, July 19, 2006.