Every Agency Should Have to Justify Its Existence Again, the Texas Sunset Way

Here is a thought that should be on a plaque in every capitol: nothing the government creates should be immortal by default.

Private businesses face this every day. A company that stops serving customers dies. A product that fails is dropped. The government, by contrast, has a remarkable property: once an agency exists, the default is that it exists forever. The question "does it still work?" is never put unless someone fights to put it. A sunset law reverses the default. It sets an end date. When the date comes, the agency ends unless the legislature votes to keep it.

That is a simple idea, and I want to make a simple argument for it. Define the term, state the claim, test it on the record.

Definitions

A sunset law is a statute that terminates an agency, a program or a regulation on a fixed date unless the legislature affirmatively renews it. It is different from a sunset review, which is the process of examining whether the agency should continue. In good designs the two work together: the termination date forces the review, and the review informs the vote.

Note what a sunset law is not. It is not a promise to abolish anything. It is a requirement that someone make the case. The burden of proof moves from the critic to the agency. That reallocation is the entire point, and it is why bureaucracies hate it.

The argument

Here are the premises.

1. Programs outlive their purposes. Governments create agencies to solve a problem. Problems change, and agencies do not. Costs and staff accumulate, and constituencies form around the agency's existence, whether or not it still does anything useful.
2. The default favors the agency. Under ordinary law, ending an agency requires a bill, a majority in both chambers, and a signature. The people who benefit from the agency are organized and vocal. The people who pay for it are dispersed and silent. That asymmetry means the agency almost always wins.
3. A deadline reverses the burden. When expiration is the default, the agency has to persuade the legislature, on a schedule, that it deserves to continue.
4. Scheduled review produces information. A legislature that does not have to look at an agency, will not. A statute that requires a look gets one, and the look turns up duplication, drift and waste that no one had a duty to find.
5. Therefore, scheduled termination with mandatory review is the best tool yet devised to make government explain itself.

I put that last claim strongly on purpose, and I will defend it against the best counterargument below. First, the record.

Colorado goes first

The first sunset law in America came from Colorado in 1976. The state's legislature passed a statute that set termination dates for most of its regulatory agencies and required a systematic review of each before it could be renewed. The idea was championed by reform groups that had been frustrated by the difficulty of getting any legislature to look critically at a licensing board or regulatory commission that had never been questioned. Colorado's version applied chiefly to regulatory boards and programs, and it created a regular schedule in which agencies came up for review in turn.

Other states noticed. Within a few years, a large number of state legislatures had passed some version of a sunset law, and the idea was debated in Congress as well. It was a reform with a rare feature: it appealed to people who wanted less government and to people who simply wanted better government. A legislator who would never vote to abolish a board outright could vote for a requirement that the board justify itself.

Texas builds the model

The state that took the idea furthest is Texas. The Texas Sunset Act was passed in 1977. It set a date for each covered agency and established the Sunset Advisory Commission to review them.

The commission has twelve members: five state senators, five state representatives and two public members. That composition matters. It is a legislative body, with the legislature in the majority, and it has two outsiders who are not lawmakers. The commission is not an agency, so it cannot be captured by one. It answers to the legislature, and its staff works for the legislature, not for the executive.

The review cycle works like this. Agencies are placed on a schedule, with a statutory end date, typically twelve years for most agencies, with the schedule designed so that a group of agencies comes up for review in each two-year legislative cycle. When an agency's turn comes, the commission's staff conducts an evaluation, including a self-evaluation from the agency, public comments, and a staff report with recommendations. The commission holds public hearings and votes on its recommendations. Those recommendations are then drafted into a bill, which the legislature considers. If the legislature does not pass the continuation bill, the agency is abolished on the date set in law, subject to a short wind-down period.

Three features deserve attention.

The legislature, not the agency, writes the terms. The recommended changes go into the continuation bill itself. That means the review does not end with a report that gathers dust. It produces a statute, and the statute can change the agency's powers, fees, structure and governance.

The staff work is independent. The commission's staff is separate from the agencies and not dependent on them.

The cycle never stops. A twelve-year clock means every agency is examined repeatedly, and the legislature gets in the habit.

Over decades, the Texas process has produced real changes: agencies abolished, agencies merged, powers trimmed, boards reorganized, and countless smaller reforms to how particular agencies work. I will not cite figures I cannot verify, and the commission's own reports are the place to look for them. It is enough to say that the mechanism has operated for generations in a very large state and has been the model for others.

Why many states weakened or dropped their laws

A fair account has to include the failures. After a burst of adoption in the late 1970s and early 1980s, many state sunset laws were weakened or repealed. Why?

The reasons are worth knowing, because a federal version should avoid every one of them.

• Too many agencies, too little time. In some states the law covered everything at once, and legislators faced a flood of reviews with no capacity to do them well. A review done in a hurry is a rubber stamp.
• No dedicated staff. Where a legislature gave the job to existing committees with no new resources, the reviews were shallow.
• Reauthorization became automatic. In some places the legislature passed omnibus bills that continued dozens of agencies with a single vote and no real examination. The sunset date lost its force.
• A real termination was too hard. When an agency was important to a powerful interest group, legislators found it easy to extend the date and hard to let it expire. Some laws included provisions that kept an agency alive for a year after termination or that allowed it to be revived administratively.
• Executive agencies resisted. Agencies had better information and more staff than the reviewers.

Texas avoided many of these failures through the combination of a permanent commission and staff, a rolling schedule and a legislative bill with substance. The lesson is that a sunset law is not self-enforcing. It needs people paid to do the reviewing.

The Founders' perspective

Is there a constitutional dimension? There is an old principle in the American tradition that government should not be permanent by inertia. Jefferson wrote, in a letter of 1789, that "the earth belongs in usufruct to the living," and argued that laws should expire with each generation. The Constitution does not follow Jefferson's formulation, and I do not propose that it should. But the underlying thought, that the dead hand of past legislation should not govern the living without regular consent, is the same thought behind a sunset.

The more direct anchor is Article I, Section 8, which gives Congress its powers, and Section 9, which says that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Congress holds the power of the purse. A sunset provision uses that power in the most direct way available: it says that an agency's authority to exist and spend depends on a periodic act of the legislature.

The strongest objection

Here is the best case against sunset laws, stated as their defenders would put it.

Government is complicated, and some functions have to continue without interruption. A legislature that must decide whether to renew a prison system, a licensing board for nurses or a unit that inspects water will find itself under immense pressure not to let it lapse. So the sunset date becomes a ritual. The agency makes a case, the legislature renews, and the only effect is the time and money spent on the ritual. Worse, the review process can itself become a tool of the very interests the law was meant to constrain: the regulated industries that have lobbyists in the capitol, and the agencies that can mobilize clients, are better placed to shape the outcome than the diffuse public.

That is the strongest case, and there are three points to it that are true.

First, a bad sunset law is worse than none, because it creates the appearance of accountability. Second, regulated industries do show up in review hearings. Third, some functions really do need to continue.

Here is the answer, point by point.

One. The objection describes a design failure, not an idea failure. A system that reviews hundreds of agencies at once, without staff, will degenerate into ritual. A system with a rolling schedule, a permanent commission and independent staff will not. The Texas record is the evidence.

Two. The fact that industry shows up is an argument for more review, not less. Without a scheduled review, the industry still has access to the agency every day, and the public has none. A public hearing, a published staff report and a recorded vote are the only forums where an ordinary citizen has a chance to be heard.

Three. A function that must continue can continue. A sunset law does not require termination; it requires justification. If the nurse licensing board is doing its job, it will be renewed, and the process will cost the board a few months of preparing documents. If the board has become a tool for incumbents to keep out competitors, the review is where that gets found. When Dentists Policed Teeth Whitening, the Supreme Court Said No describes what happens when a licensing board is never questioned.

Four. The objection assumes the status quo is stable, and it is not. Without a sunset, agencies grow. The question is not whether to have a ritual or no ritual. It is whether the legislature will look at the agency once a decade or never.

A federal sunset

Could Congress do this? Federal agencies are different from state boards, and the scale is vastly greater. But the logic is the same, and some of the design can be sketched.

1. Stagger the schedule. Put every agency and every major program on a cycle, with a fixed number coming up for review each Congress. No single Congress would face the whole federal government at once.
2. Create a commission with staff. A bicameral commission with legislators of both parties and a small group of outside members, with its own professional staff, independent of the agencies and of the Office of Management and Budget.
3. Make expiration the default, with real consequences. If the continuation bill does not pass, the agency's authority to issue rules and spend funds ends on the date, with a defined wind-down.
4. Bundle by function, not by committee. Review agencies that do similar work together, so duplication is visible. The Government Accountability Office has for years reported on overlapping programs, and a sunset review is a natural place to use that work. See also GAO's High-Risk List Has Named Some of the Same Programs Since 1990.
5. Ban omnibus rubber stamps. The continuation bill should be specific to the agency or the function, with a recorded vote.
6. Protect core functions. Defense, the courts and the debt obligations of the United States are not candidates for lapse. The law would list what is exempt, and keep that list short.

Some federal programs already have authorization dates, and Congress often lets them expire and keeps funding them anyway, through appropriations. The Congressional Budget Office reports regularly on programs funded after their authorizations have lapsed. A real sunset law would close that loophole by making funding depend on the continuation bill. For a related approach to making the executive explain itself, see From Taft to Hoover to Grace to Gore, a Century of Commissions on Waste, which shows what happens when reviews produce reports and no obligation to act.

What it means for a family

Why should a family in Houston or Columbus care? Because every agency costs something, and the bill is paid in taxes, fees and permits. The licensing board that decides whether you can work, the commission that sets your utility rates and the department that regulates your child's school are all funded and empowered by laws that no one has reread in decades. A sunset review is the occasion for someone to ask, in public, what you get for it.

The case in brief

1. A sunset law ends an agency on a fixed date unless the legislature renews it, which reverses the default that government is permanent.
2. Colorado passed the first sunset law in 1976, and Texas passed its Sunset Act in 1977, creating a twelve-member Sunset Advisory Commission of five senators, five representatives and two public members.
3. Many states weakened or repealed their laws because reviews were rushed, understaffed or rubber-stamped, which shows that a sunset law needs dedicated staff and a staggered schedule.
4. The objection that sunsets are rituals describes a design failure, and the answer is a well-built law, not none.
5. A federal version should stagger the schedule, use an independent commission, make expiration real, and protect only a short list of core functions.

What you can do: find your own state's sunset or agency review schedule on its legislature's website, pick one agency that touches your family, and submit a comment or testify at its next scheduled review.