An expiration date on federal legislation isn’t a bad idea

posted at 8:01 pm on February 28, 2016 by Taylor Millard

One of the problems Congress has is its propensity to pass “continuing resolutions” to keep the government funded, instead of actually voting on individual spending bills. It’s one of the things Rand Paul has complained about because it seems like Congress and the presidency don’t care about actually passing individual spending bills, but more about keeping things going through omnibus after omnibus. This month’s issue of Reason focuses in on the fact Congress is required to pass a dozen discretionary spending bills, but hasn’t had any luck since 1994. The new GOP-controlled Congress hasn’t done anything to solve this issue either.

When Republican re-took the Senate in November 2014, thus ensuring GOP control over both houses of Congress, they vowed to change all that. “One of my challenges is to try to convince some of my members that passing an appropriations bill is a good thing, not a bad thing,” incoming Majority Leader Mitch McConnell (R-KY) told The New York Times. “The Senate basically didn’t do squat for years.”

Yet squat is still the order of the day. While the unified Congress did manage for the first time in six years to pass a budget resolution-the also-required, nonbinding baseline blueprint from which the appropriations bill are supposed to be carved-the appropriations process once against devolved into an ungainly, unreadable, last-minute mess of legislation called the omnibus.

This is exactly what Paul railed about. The fact the federal government is ready, willing, and able to let things keep going without bothering to put individual bills together shows why 98% of Congress should be tossed out on their ears. That’s not going to happen, because incumbents have a ton of power, so there has to be another way for better oversight. One thing Reason columnist Veronique de Rugy has put forth is to make sure there are expiration dates on bills. She believes the federal government should apply what’s called “Moore’s Law” in that technology and conditions change at a rapid pace. From her monthly Reason column:

How do we do it? Where government and technology intersect, [Mercatus senior research fellow Adam] Thierer suggests that new laws and regulations should include a provision automatically sunsetting them 18 months to two years after enactment. “Policy makers can always re-enact the rule if they believe it is still sensible, he says. All the better if the change were retroactive, forcing legislators to re-evaluate rules and restrictions already on the books…

The way to force policy makers to change their behavior and become more fiscally responsible is to put an expiration date on every program and regulation Congress passes. Under such a regime, the intertia and inefficiency that plague Washington would play to the favor of limited government advocates. This would finally allow us to start getting rid of some bad programs and replacing them with better ones, just as Amazon shook up the bookstore world.

This would be great if the government was willing to do this. The very nature of government is to keep expanding and expanding, with nary a care for the limits the Constitution places upon it (see the debate over a rigid Constitution vs. a living, breathing one). But de Rugy’s idea is a fantastic one, which could be accomplished several ways, as long as people have the patience for it. The first obvious way of getting an expiration date put into place is for a Congressman or Senator to propose it. Someone like Utah Senator Mike Lee or Rand Paul or Congressmen Thomas Massie and Justin Amash could float a law requiring Congress to put expiration dates on their legislation. The cynic in me says it’s unlikely to pass, but it’s certainly something which can be proposed over and over again, if the right people get behind it.

The second method is the Constitutional amendment route. This is also a bit of a tricky way to get things done because it depends on 2/3 of the House and Senate agreeing on the measure. It would then be sent to the states to for 3/4 approval, which is easier said than done. The only other way to get the amendment locked in is through an Article V convention. This might work, but Forbes contributor Steve F. Hayward noted there is an element of danger to it:

Others worry about a “runaway convention,” in which the delegates produce a number of other changes to the Constitution, perhaps changing the First Amendment to allow for greater federal control of political speech.  (At least one member of the Compact for America team, Harvard’s Lawrence Lessig, is hoping a convention would enable overturning the Supreme Court’s Citizens United ruling.)  Liberals want to change the Constitution far more than conservatives do, and would be highly motivated to exploit a convention.

The third method is the most likely, and the one requiring the most patience: elect representatives who will push for an expiration date. This means picking candidates who espouse limited government beliefs, and actually stick to them. It also means keeping these candidates accountable if/when they get elected into office. But this fight isn’t going to be solved in four or five election cycles. It’s going to take 20 or more to get people in office who truly believe in limited government. This is the hardest road for conservatives and libertarians to take, and the most fruitful. IF they’re willing to go down this road and not get distracted by every new crisis or deadline which comes up. This also places responsibility on the voters and activist to keep their elected representatives accountable. It means showing up to town halls, calling into their office, or just lobbying others when the elected official goes astray. It doesn’t necessarily mean throwing them out for every sin, unless those sins keep piling up and the politicians show no willingness to listen to constituents. De Rugy’s idea of an expiration date for legislation is a great one, but it’s going to take time for it to get there. It just depends on how willing the Right is going to be to keep their people accountable.

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