One nation, under too many laws

By Philip K. Howard

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America is choking on laws of our own making.

Once a law is in place, it's almost impossible to dislodge. Our political class assumes that, after a law is forged in the crucible of democracy, it should be honored as if it's one of the Ten Commandments - except it's more like one of 10 million.

We even have a hard time modifying laws that were explicitly designed to be temporary. Just look at the recent battle over the Bush-era tax cuts.

Having that debate at all is unusual. Once enacted, most laws are ignored for generations. Decade after decade, they pile up like sediment in a harbor, bogging the country down - in dense regulation, unaffordable health care, and higher taxes and public debt.

A healthy democracy must make fresh choices. This requires not mindless deregulation but continual adjustment of laws. Congress should follow this simple proposal: Every law should automatically expire after 10 or 15 years.

Such a universal sunset provision would force Congress and the president to justify the status quo and give political reformers an opening to reexamine trade-offs and public priorities.

The looming crisis of the national deficit is impossible to address without changing existing entitlement programs. But when the co-chairs of the National Commission on Fiscal Responsibility and Reform announced their proposals last month, including modifications to Medicare, condemnation from Congress was swift.

The political scuffle over ethanol subsidies - with Republican fiscal hard-liners facing off against Republicans from farm states - shows how sunset laws can reinvigorate democratic debate. Critics have long questioned billions of dollars in subsidies (last year, $7.7 billion) for a product known to have serious environmental drawbacks. The issue came to a head, however, only because ethanol subsidies, like the Bush tax cuts, were set to automatically expire at the end of this year.

Sunset laws were a domestic priority for President Jimmy Carter. But that effort stalled and, 30 years later, accumulated law has become a defining problem of modern democracy. Health-care programs and Social Security - eating up about 70 percent of each year's federal revenue - don't come up for annual authorization and are not limited by a budget.

Many programs outlived their usefulness decades ago: New Deal subsidies intended for starving farmers now go mostly to corporate farms ($15 billion annually), and inflated union wages on government contracts (more than $11 billion per year), another relic of the 1930s, have the effect of limiting public works and employment.

The unaffordability of American health care, which costs twice as much as care in other developed countries, with worse outcomes, is caused mainly by preexisting programs. In this bureaucracy, every incentive is misaligned. Elaborate reimbursement guidelines encourage expensive procedures, with no incentives for physicians to be prudent. Patients with insurance see health care as an entitlement, allowing hypochondriacs to clog doctors' waiting rooms. But neither party will take the political risk of challenging these wasteful practices.

Too many laws immobilize daily regulatory choices. Environmental review, for example, has evolved into a perpetual process machine. Rebuilding this country's fraying infrastructure is basically impossible because no official has the authority to say “go.”

An omnibus sunset law would dislodge the status quo by requiring that every statute expire at some point, unless it is reenacted. Laws with budgetary mandates, such as subsidies, should probably have shorter fuses than broader regulatory laws, such as antitrust statutes. It would be much harder for Congress to overtly support a wasteful subsidy than to passively let it continue. Our democracy would be revitalized if there were an opportunity to debate how laws actually function.

Our founders never intended democracy to be a one-way ratchet, making laws but almost never unmaking them. Thomas Jefferson famously advocated small revolutions from time to time, believing that they are “as necessary in the political world as storms in the physical ... .It is a medicine necessary for the sound health of government.” This is the medicine that America very much needs today.

Philip K. Howard, a lawyer and son of a minister, is the chair of the legal reform nonprofit Common Good (commongood.org)and the author, most recently, of “Life Without Lawyers.” lifewithoutlawyers@gmail.com