A number of proposals for federal legislation embodying the sunset technique are pending before Congress. Rather than discussing any specific sunset proposal here, the next sections of this chapter deal with aspects of sunset legislation which the Commission deems worthy of consideration regardless of the precise form in which the legislation is cast.

Advantages of Federal Sunset Legislation

The Commission emphasizes that the sunset technique should not and could not substitute for proper budget reviews, legislative oversight, or conventional reform proposals, but can usefully supplement these measures. For this purpose, there are a number of advantages of sunset legislation on a limited scale over other types of legislative review. These advantages include:

Focusing for legislative attention the questions pertaining to the underlying need for a regulatory program. Normal congressional review of an agency's operations concentrates on other subjects while tending to take for granted the assumption that the duties imposed on the agency were imposed wisely. The Ribicoff Report states that "... the vast sweeps of regulatory agency policies are passed over without any critical review" 2 by appropriations committees preoccupied with budget programs; that many regulatory activities are relatively neglected by authorizing committees because they have permanent authorizations, and that even among those programs that are periodically reviewed, ". . . a careful analysis of the entire agency's operation may never occur" since oversight "tends to be on a crisis basis only." 3

Obliging advocates of continued regulation to make an affirmative case for a statute authorizing continuation, rather than permitting continuation as a result of inaction. Inaction, by its very nature, is seldom as systematically justified as affirmative action.

Establishing a schedule for congressional action which may be changed only by further congressional action. By providing for automatic abolition of an agency or regulatory function unless Congress acts to the contrary, Congress would provide a strong incentive to agencies and other interested parties to complete in timely fashion any compilations, analyses, or reports desired by Congress for consideration in deciding whether to continue a regulatory program.

Encouraging agencies, in anticipation of sunset review, to orient their programs more toward serving current needs, to request statutory changes when needed for this purpose, and to collect the data required to measure the agency's effectiveness.

Providing a mechanism, not quite the same as a legislative proposal or a reorganization plan, which permits cooperation between the legislative and executive branches in initiating the legislative review process, thus forcing the executive as well as the legislative branch to continue to monitor the ongoing justification for economic regulation.

The sunset technique has inherent flexibility. It can be applied to federal regulatory agencies or to regulatory functions either within an agency or distributed among agencies, depending on the reason for the review and on an evaluation of practical and political realities. Thus, a review could be directed at the Interstate Commerce Commission itself, at trucking regulation (a portion of the Interstate Commerce Commission's responsibilities) or at an entire type of regulation, such as all transportation regulation (including the ICC, the Civil Aeronautics Board, and the Federal Maritime Commission). If a sector of the economy is designated for review, it is necessary for the President to specify the agencies or parts of agencies which must be reauthorized. The Commission believes, however, that sunset legislation itself should not exclude particular agencies or regulatory functions from review. Little is to be gained by such exclusions, and a sunset review may improve the effectiveness of any agency.

Suggested Limitations on Use of the Sunset Procedure

The Commission is concerned that possible overuse of the sunset procedure could prove counter-productive. It has been reported that the Colorado legislature was unable to complete action on all of its scheduled sunset reviews. Congress could easily find itself in a similar situation if too many reviews were begun, particularly since sunset reviews of federal programs may absorb extensive resources and political energies. For example, a recent Senate review of the Civil Aeronautics Board took over a year to complete and provoked strong resistance from labor unions and most airlines affected by the review, resulting in expenditures of substantially more time by legislators and staff personnel.

A substantial number of sunset reviews of comparable scope in any one Congress could well prove so time-consuming that Congress would be unable to complete its reviews within the time stipulated. This could lead to postponement of sunset deadlines, or reauthorization without adequate consideration, neither of which would serve the public interest.

'The analytical difficulty of completing a particular sunset review and the practical and political difficulty of accomplishing meaningful reform depend in part on the size and nature of the agencies or regulatory functions designated for review. Until it is demonstrated by experience that Congress can complete a substantial number of reviews and reauthorizations effectively within a short period of time, sunset legislation should not require review of more than a very limited number of regulatory agencies or regulatory functions by any one Congress. Because reviews are likely to vary in difficulty, the Commission's recommendation does not specify the exact number of reviews which one Congress might effectively accomplish.

The Selection Process

The Commission believes the legislation should delegate to the President the authority and responsibility of designating the agencies or regulatory functions to be reviewed, subject to approval by both houses of Congress. This could avoid potentially serious problems in selection, and would tend to assure that sunset

proposals advanced by the President would be approved by Congress. Unless the President and Congress work closely together, fundamental reform is unlikely.

Under the procedure recommended by the Commission, the President would designate agencies or functions for review by Congress. He could make the designation in the form of one proposal or more. Congress could approve one or more of the proposals submitted (but only an entire proposal rather than a portion of a proposal). Approval would cause the listed agencies or functions to be subjected to automatic review and termination unless new authorization legislation were enacted. If dissatisfied with the President's proposals, Congress could make its own designation of agencies or functions by passing legislation that would, like all other legislation, be sent to the President for signature or veto. As with other legislation, a veto could be overturned by a two-thirds vote in each house of Congress.

If experience should indicate or Congress should decide that a greater number of reviews can be handled effectively by a single Congress, there is substantial merit in the proposition that agencies should automatically be subject to reauthorization on each tenth anniversary of their original authorization, thereby eliminating potential problems in the selection process.

Provision for Phaseout

Sunset legislation would provide an orderly method by which to phase agencies out of existence if they are not reauthorized. Sudden abolition of any agency would be likely to create great confusion. Abolition of the CAB, for example, without some provision for the consequences of abolition would create uncertainty as to whether routes and rates were frozen or free entry and price competition were permitted. Termination of the Federal Communications Commission would create similar confusion about the right to broadcast. To reduce confusion and uncertainty, sunset legislation should contain a method for developing contingent phaseout plans. One possibility would be to permit the President to include contingent phaseout plans in his sunset proposals. These contingent plans would take effect in the absence of reauthorization legislation.

Congressional Review

The key to successful implementation of a sunset review is the establishment of a schedule that permits adequate time for the collection of pertinent data, the presentation of views by the public and all interested parties, and enactment of reauthorizing or amending legislation, if appropriate. Since sunset legislation means that an agency will cease to exist unless new legislation is passed, procedural safeguards should be instituted providing that any such legislation is to be discharged promptly from committee and given prompt consideration on the floor and by conference committee.

The type of congressional review will necessarily vary with the agency or function under review. Congress will undoubtedly wish to attract public attention to sunset reviews, both to obtain testimony from all interested sources and to build public support for the outcome. It should consider whether to make provision for payment of attorneys' fees and other expenses of public interest organizations in connection with their participation in reviews, under proper limitations and controls, when the availability of such financing is necessary to assure the presentation of positions which deserve full and fair consideration and would otherwise not be presented. The Commission recommends that separate reports be submitted to Congress by the Office of Management and Budget, the General Accounting Office, the Congressional Budget Office, and the affected agency itself each time the congressional review process is initiated. Useful expertise and a different viewpoint should be forthcoming from each of these sources. Competition among them to submit the most meaningful and persuasive report should stimulate the production of superior analysis. The legislation should establish criteria for these reports. At a minimum, sunset reports should:

identify the regulatory objectives of the designated agencies or parts of agencies under review and assess their effectiveness in achieving the objectives;

identify and assess the effectiveness of other programs having similar, conflicting, or duplicate objectives;