Sunset Laws
By TONY LICATA
Currently a student at Harvard Law School where he is a member of the Journal on Legislation and the Legislative Research Bureau, Licata was formerly employed by the Illinois Capital Development Board as a program analyst. He has also been an administrative assistant in the Governor's Action Office and a reporter for the DuQuoin Evening Call.

Limited lifespan for state agencies?

Sunset laws

Sunset laws put state regulatory agencies on the line for periodic review — and automatic extinction unless the legislature decides the agency is worth saving. Reflecting a general consensus that government should work better and cost less, the concept has the cautious approval of Gov. James R. Thompson and is already being tried in Colorado. The catch is that sunset reform could create more red tape and new political trade-offs

THE SELF-DESTRUCTION of state agencies under what is commonly known as a "sunset" law received minimal attention in the past 79th General Assembly. But Illinois legislators may find it more difficult to avoid consideration of the proposal during the present session. The idea, which has received much attention nationwide, would require termination, or "sunset," of regulatory government agencies if they cannot periodically justify their existence.

Sunset laws are viewed by some as a potential solution to several problems widely believed to be the cause of ineffective government. Regulatory agencies tend to become "captives" of the group or industry they are created to police. There is a continual shuttling of high level executives from government to industry and back again, which, critics say, confuses and compromises the aims and policies of regulatory agencies. As far back as 1888 railroad lawyer and former U.S. Atty. Gen. Richard Olney foresaw this tendency and urged industry executives to drop their opposition to the first great regulatory agency, the Interstate Commerce Commission. Oiney counseled that in a matter of time, the agency would come to share the industry's views and thus become a potent ally rather than an enemy. Accepting Oiney's logic, backers of sunset laws claim that periodic review and possible extinction of agencies will expose and help eliminate such comfortable relationships.

A second reason for the idea's growing attractiveness is a general distrust of "big government." In 1975, pollster Lou Harris found that over 70 percent of the American people felt they were not getting "good value" for their tax dollars. Sunset laws are seen as one way of shaping up wasteful bureaucracies.

Finally, there is much sentiment that agencies are often created in response to the demands of special interests and then retreat to obscurity in the labyrinth of government office buildings. Such agencies can often avoid careful scrutiny of their operation, but nonetheless continue to spend precious tax dollars. Advocates of the sunset concept believe performance review is the only way to justify the continued existence of such agencies.

During the past gubernatorial campaign in Illinois both candidates endorsed the principle of sunset laws. Gov. James R. Thompson said the government should start "by tackling the easier, smaller scale reviews first and learning from mistakes before undertaking massive review of large agencies." Some of the largest agencies, Thompson said, should not require review at all. Terminating the Department of Corrections, he said, "would be unrealistic." Calling for public participation in the review process and assurances that all dismissed workers are properly compensated, Thompson said a sunset law "would insure tax dollars are spent more economically and that state programs which do not work are eliminated."

The adoption of a sunset law by Colorado followed by Florida and Louisiana and the bills now being considered by the U.S. Congress and in several state legislatures have increased the intensity of debate on the idea. Most citizens, however, are essentially uninformed on the issue. If the public is to take a meaningful part in this debate it must know how sunset laws are intended to work, the problems which would keep them from working and the real benefits and costs likely to result from their adoption.

The idea of giving government agencies a limited life is not entirely new. Former U.S. Supreme Court Justice

February 1977 / Illinois Issues / 21


Rather than forcing the legislature to abolish an agency, the Colorado law requires positive action to save an agency

William O. Douglas proposed a 10-year lifespan for regulatory agencies when he was director of the Securities and Exchange Commission. "The great creative work of a federal agency must be done in the first decade of its existence if it is to be done at all," he wrote. "After that it is likely to become a prisoner of the bureaucracy." President Franklin D. Roosevelt, reportedly amused by Douglas' proposal, ignored the suggestion.

Colorado Gov. Richard Lamm signed the nation's first sunset bill into law on April 22, 1976. Supported by legislators of every ideological persuasion, the law is aimed at a multitude of regulatory boards and commissions which license or regulate everything from barbers to hearing aid dealers. A total of 39 such organizations are marked for extermination over a six-year period. Agencies in related fields will be reviewed simultaneously so that they can be considered as a group and consolidated where desirable.

The heart of the Colorado statute is a section which empowers the legislature to continue the existence of any agency for a six-year period. If no such affirmative grant is made, the agency is abolished. It is this action forcing mechanism which gives teeth to sunset laws. Rather than forcing the legislature to abolish an agency, the law requires positive action to save the body. The burden of proof is on the agency's advocates, rather than its opponents, and all the pitfalls of the legislative process work against continuation, rather than for it.

If the legislature fails to act to extend an agency, it is given a year's grace to close out its affairs and continue its fight for survival.

Prior to legislative action, each house of the Colorado General Assembly must hold a public hearing in which the burden of demonstrating a public need for the continued existence of an agency must be borne by the agency itself. The law requires legislators to consider a list of nine factors, including the organization's effectiveness and the degree to which it has involved the public in its decisionmaking process. Colorado's sunset law is an attempt to force the legislature to carry out its often neglected duty of overseeing the bureaucracy, and the public hearing clause is designed to give citizens and interest groups a voice in the extension decision.

The law was conceived by the Colorado chapter of Common Cause. Craig Barnes, a Denver lawyer, coined the "sunset" term. "It's like the end of the day for these agencies," he says, "and it's inexorable." Backers of the Colorado measure recognize, however, that the statute is not a panacea which will cure all the ills of bureaucracies. Much of the statute's success hinges on whether the required hearings are actively pursued. If the general public, the media, and business, labor, and consumer groups fail to provide the input required for an informed decision on continuation, then the statute is probably doomed to an unspectacular demise. There is a real danger that organized, well financed vested interests with strong lobbies may dominate the decisionmaking process, particularly if there is no organized opposition. How effectively Colorado (or any legislature) can mediate the claims of conflicting interest groups is an unresolved question.

The Illinois sunset proposal, which was introduced by a bipartisan group in the House headed by Rep. Harold A. Katz (D., Glencoe) is a virtual copy of the Colorado law. House Bill 3805, which was introduced too late in the 79th General Assembly to clear the House Rules Committee, targeted for extinction the Illinois Commerce Commission, Liquor Control Commission, Department of Insurance, Commissioner of Banks and Trusts, and various committees of the Department of Insurance, Commissioner of Banks and Trusts, and various comittees of the Department of Registration and Education. None of the Department of Registration and Education occupational licensing committees were specified.

Perhaps the major shortcoming of H.B. 3805 was that it did not specify the termination date of any agency. The bill merely delegated to a joint rules committee of the legislature the job of, identifying the agencies and setting up a termination schedule. It did provide, however, that 30 percent of the agencies were to be terminated in 1978, and 35 per cent more in both 1980 and 1982.

A major problem with sunset laws is that the legislature may not effectively carry out the review necessary for continuation of agencies. A major increase in legislative workload (and presumably in legislative staffs), particularly at the committee level, is an unavoidable by-product of any sunset law. Lawmakers, beset with numerous other problems during a limited session, may not be able to devote sufficient time to evaluate each and every agency slated for review. There is a definite danger that agencies might escape the critical evaluation essential to the law's intent due to the typical legislative "crunch" as the session's end draws near. Renewal of agency charters might become routine.

A different type of problem arises when the element of regulatory agencies' independence is considered. An agency might be deterred from making tough, controversial decisions for fear that resulting adverse reaction would damage its chances for continued survival. An agency which aggressively pursues its duties inevitably makes enemies. The legislative process is fraught with roadblocks and opportunities for pigeonholing. An agency which deserves to be continued might be wiped out due to a powerful legislator's ability to capitalize on quirks in the legislative maze. A threat of statement by such a legislator on a subject under consideration may well have a chilling effect on the agency's willingness to act.

A related problem involves legislative "logrolling," the term used to describe the process of trading votes in a coalition-building process. A series of votes on the continuation of government agencies presents lawmakers with a variety of opportunities to "cut deals" and "swap votes" for the rescue of pet agencies or on other items. The problem is that sunset laws contemplate evaluation of agencies and programs on the basis of their merits and are not intended to furnish grounds for deals. If legislators begin bargaining away votes on continuation of agencies, the concept's value would be greatly diminished.

Critics of sunset laws have also suggested that the device is in reality a gimmick by which elected policymakers


22 / February 1977 / Illinois Issues


can evade political responsibility. By passing a single sunset bill, legislative bodies can abolish programs by silent but deadly "operation of law." This makes it possible for lawmakers to avoid hard policy decisions which may draw considerable attention. Any decision to abolish an agency should be made in open debate on its merits. By introducing the element of automatic termination the "deck is stacked" because a program's opponents can kill it with a vote in a subcommittee.

Still another wrinkle involves the timing of review. An agency scheduled to be reviewed every five years may be dealing with long-term problems, and it may be impossible to show substantial results within the review period. The task of establishing an agency's effectiveness is considerably more difficult when the problems it is tackling may not be solved for decades.

Conversely, what happens when four years of overall good performance is overshadowed by scandal or mismanagement which surfaces shortly before or during the review process? Say, for example, during the review period a scandal erupts involving payoffs to one or several agency officials. It is not inconceivable that a burst of bad publicity at a crucial stage in the review process could result in political pressure to let an entire agency or program terminate. Legislators would have to avoid being unduly swayed by such events.

A final problem with sunset laws is that bureaucrats may begin devoting more time to justifying their existence than to simply doing their jobs. The periodic trauma of near death may have a disheartening impact on agency morale. Sunset laws might even cause an expansion of government, as agencies begin adding personnel to handle the chore of periodically winning an extension of life.

Many of these observations are based on pure speculation; there simply is no experience on which to base any conclusions. Proponents of sunset laws, while insisting the idea offers promise, recognize that there are flaws yet to be discovered and refinements yet to be made. Much will be learned from the Colorado experiment, where Gov. Lamm admits, "We need to see how it works before we go further." Supporters and detractors of sunset laws in Illinois would do well to monitor the Colorado experience closely.



BOOK REVIEW By W. PAUL NEAL, JR.
W. PAUL NEAL, JR. Manager of the legislative department and chief lobbyist for the Illinois State Chamber of Commerce, he was an editor and reporter covering Congress and federal agencies in Washington, D.C., and state and local governments in California, Michigan and West Virginia.
Samuel K. Gove, Richard W. Carlson, and Richard J. Carlson,
The Illinois Legislature / Structure and Process. Urbana, Ill. :
Published for the Institute of Government and Public Affairs by the University of Illinois Press, 1976, 189 pages, $5.95.


Explaining the legislative process

FINALLY, there is a basic, understandable primer on the Illinois legislative process. But a warning is in order: this "basic" primer is as complex as the process. It is not the kind of book you pick up for an evening of light diversion. It is, however, the kind of introduction the large incoming freshman class of legislators should keep at their fingertips for consultation. The book may also be the answer for high school and college teachers and students as well as those who want to learn more about what can be a frustrating and confusing process.

"This book describes the Illinois General Assembly — its structure, its process — to give the interested citizen, the student, and indeed the public official (including the legislator), a better understanding of this very complex and important legislative body." This goal, stated in the preface, is carried out admirably by an extremely well qualified team of authors. Professor Gove, who developed the book's concept and edited the manuscript, is director of the Institute of Government and Public Affairs of the University of Illinois and has supervised hundreds of legislative interns in the Illinois General Assembly, including his two co-authors, Richard W. Carlson, who is now on the staff of the Illinois Senate, and Richard J. Carlson, who is now director of research for the Council of State Governments in Lexington, Ky.

The book grew out of a grant from the American Political Science Association and has been in development for eight years.
The Illinois legislature will explain:
Who the players are in the Illinois legislative process;
What the roles are of these players and how they interact;
The mechanics of legislative operation;
The nuts and bolts of bill passage;
The House and Senate rules at the time of publication of the book;
The role of legislative staffs;
Some recent, but dated, statistical studies on the flow of legislation, number of bills introduced and passed compared with prior years, committee disposal of bills (which still need procedural improvement), etc.

It is these last three areas which the authors use as an academic base to build an argument for increasing the professionalization of the staff and the smoother flow of legislation. Other arguments could have been developed, yet the authors have kept to their own disclaimer noted in the preface: ". . . we do not necessarily think that all is well with the legislative system, but our self-designated role is not to suggest reorganizations or reforms. We leave this to others. Possibly our information and data will be helpful to those who do want to revise the process."

In their discussion of the new Constitution and changes in legislative rules, the authors seem to be a bit too optimistic about how these changes will improve legislative performance. Some things are eternal and political infighting and compromise, deal-making and the pork barrel continue as before. The complete "dance of legislation" is played to a political tune in any state, and in Illinois the keen competition between the political parties, regional, economic and issue-oriented groups can sometimes create more of a dissonant "jam session" than a symphonic consensus.

Often, the legislative staff can be relegated to providing incidental music for the legislators who are playing the tune, and the rules become a melody line to be improvised on by the leading musicians. I don't mean to diminish the role of the staff as a vital component of the legislative process. On the contrary, without such staff expertise, the cacophony of statute content could swell to an even more confusing din, and without the rules, no score would exist for direction by the leadership. Political compromise is an art, not a science, since the human, emotional needs of the legislators and their constituents have as much, and often more, effect on legislative enactment as does the logical development of bill content or procedure.

There are several things this book will not tell you, but then it was not designed to do so. It will tell you how the process works and give you a reliable overview of the structure, which is particularly good for newcomers who have not been intimately involved in the process.


February 1977 / Illinois Issues / 23


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