Sunset and Program Review Commission Bills in the 109th Congress: Comparing H.R. 3282 and H.R. 5766
Released: 2006-07-25T00:00:00

Background

The sunset concept provides for programs and agencies to terminate automatically accordingto a predetermined schedule unless explicitly renewed by law. As developed in the 1970s by theorganization Common Cause, a sunset law contains two requisite components: an "action-forcing"mechanism and a framework for the systematic review and evaluation of past performance. Undersunset, agencies "fade into the sunset," unless, following oversight review, the legislature actsaffirmatively to continue their existence.

For more than three decades sunset bills have been introduced in every Congress. (1) Since 1997, RepresentativeKevin Brady and others have supported the creation of a federal sunset commission, modeled on thesunset commission in Texas. He reintroduced his bill in the 109th Congress as H.R. 3282 . (2)

In May 2006 the House leadership announced plans to bring sunset legislation quickly to theHouse floor, along with other budget process reforms favored by the Republican Study Committee(RSC), in return for RSC backing of the FY2007 budget resolution. In the effort to craft a consensusbill, attention came to focus on H.R. 3282 (Brady bill) and on H.R. 2470 ,sponsored by Representative Todd Tiahrt, which would create a "Commission on the Accountabilityand Review of Federal Agencies (CARFA)," modeled on the Base Realignment and ClosureCommission (BRAC) approach. (3) On July 14, 2006, Representative Tiahrt introduced a revisedversion of H.R. 2470 as H.R. 5766 , the Government Efficiency Act, "toprovide for the establishment of Federal Review Commissions (FRCs) to review and makerecommendations on improving the operations, effectiveness, and efficiency of Federal programsand agencies, and to require a schedule for such reviews of all Federal agencies and programs." Although the CARFA and FRCs would address concerns similar to those envisaged for the FederalAgency Sunset Commission in H.R. 3282, H.R. 2470 and H.R. 5766are not true sunset measures, because they lack an action-forcing mechanism whereby agencies andprograms would terminate automatically absent congressional action, as would occur under H.R.3282. Although technically inaccurate, both bills are often referred to as sunset measures,however. (4)

On July 19, 2006, the House Government Reform Committee held a hearing on H.R. 3282 and H.R. 5766 . (5) Both bills went to markup the following day, and the committeevoted 15-14 to report H.R. 3282 favorably to the House. H.R. 5766, as amended,was favorably reported by a vote of 15-12. Both votes were largely along party lines. All Democratsvoted against both bills. One Republican voted with the minority on each bill: Representative ChrisShays voted with the minority on H.R. 5766, and Representative Todd Platts did likewiseon H.R. 3282. (6)

Supporters of the measures suggest that there are too many overlapping and ineffectivefederal programs that contribute to the growing federal deficit, that Congress lacks time for thoroughoversight of all existing agencies and programs, and that the commissions would assist Congress inperforming its oversight function, thereby reducing fraud, waste, and abuse. Critics of the measurescounter that the bills would cede too much power to the executive branch and the majority politicalparty, would burden Congress with a tremendous workload with mandatory reauthorization of everyagency and program, and would facilitate elimination of federal programs that provide a safety netfor the most vulnerable in society.

Summary of H.R. 3282

H.R. 3282 would create a Federal Agency Sunset Commission (FASC) toreview the efficiency of and public need for federal agencies and provide for the abolishment ofagencies for which a public need does not exist. The FASC would consist of 12 members appointedby the Speaker of the House and the Senate Majority Leader. Of the six members appointed by theleaders of the respective chambers, four would be Members of Congress, with not more than twofrom the same political party. Within one year after its establishment, the commission would submitto Congress a schedule for the review of all federal agencies and advisory committees by thecommission, at least once every 12 years, and for the abolishment of each agency following thereview absent congressional reauthorization. Agencies performing similar or related functions wouldbe scheduled for review at the same time. Then the commission would commence its annual reviews,utilizing the 19 criteria specified in the bill in reviewing and evaluating the efficiency and publicneed for each agency.

By September 1 of each subsequent year, the commission would report to the President andCongress, and recommend whether each agency reviewed that year should be abolished orreorganized and whether functions of other agencies should be consolidated, transferred, orreorganized. The FASC would also submit draft legislation to carry out the recommendations.

Under the sunset provisions in the bill, an agency would be abolished within one year of theCommission's review, unless the agency received statutory extension. This means that followingcongressional approval of a reauthorization bill, the measure would have to go to the President inorder to be signed into law. If the President were to veto the bill, a two-thirds majority in bothchambers would be necessary to override the veto and extend the life of the program or agency. Thepossibility of a popular program or agency being eliminated by a President, with the support of onethird of the House and Senate, arguably represents a significant transfer of power from Congress tothe executive branch.

The bill would allow the deadline for abolishing an agency to be extended for an additionaltwo years by legislation enacted by a super majority of the House of Representatives and the Senate.The commission also would report to Congress on all legislation introduced that would establisha new agency or a new program to be carried out by an existing agency.

H.R. 3282 would direct the Comptroller General of the GovernmentAccountability Office and the Director of the Congressional Budget Office, in cooperation with theDirector of the Congressional Research Service, to prepare an inventory of Federal programs withineach agency for the purpose of advising and assisting Congress and the commission in carrying outthe requirements of the act.

Although constitutional concerns appear not to have played a major role in consideration of H.R. 3282 , in prior Congresses similar sunset commission bills have been questionedon constitutional grounds. For example, an advisory opinion from the Department of Justiceprovided for the hearing record in 1998 suggested that unless Congress were to enact the schedulefor review and termination recommended by the commission, the bill would violate separation ofpowers. (7) An advisoryopinion from the Justice Department in 2002 referred to the same issue, as well as other possibleconstitutional concerns. (8)

Summary of H.R. 5766, as Amended

H.R. 5766 , as approved with an amendment in the nature of a substitute andordered reported favorably by the House Committee on Government Reform on July 20, 2006,would add a new chapter 10 to part I of Title 5 of the U.S. Code ; part I pertains to the agenciesgenerally and chapter 9 is titled "Executive Reorganization." A Federal Review Commission mightbe established through the issuance of an executive order or enactment of a joint resolution thatspecifies the federal programs and agencies to be reviewed by the commission.

Each review commission would have seven members appointed by the President, four ofwhom would be selected after consultation with designated congressional leaders. Up to fourMembers of Congress might be appointed to serve as nonvoting ex officio members. The billspecifies qualifications for all commission members: each person "shall have expertise andexperience in the particular programmatic area" to be reviewed by the commission. H.R. 5766 provides that, within one year of enactment, the President would submit toCongress a schedule under which additional federal review commissions would be establishedsubsequently to review all federal agencies and programs. In developing the review schedule, thePresident would provide that agencies performing similar or related functions would be reviewedat or near the same time.

In its review work each commission would consider "whether the missions and goals of theprograms and agencies studied by the Commission are being carried out as effectively and efficientlyas possible," the extent to which the programs and agencies duplicate or conflict with other ongoingactivities, and whether reorganization of the programs and agencies "would better enable the Federalgovernment to accomplish its missions and goals." The committee substitute offered by theChairman of the Government Reform Committee added agency rule making to the list of factors tobe considered in the FRC's review: whether existing rules promulgated by the agencies to carry outthe programs derive from specific legislative authority, are being carried out as efficiently aspossible, or duplicate or conflict with rules promulgated by other federal agencies, and whether anyagency or program being reviewed in any manner violates the constitutional separation of powers.

Within one year after being established, the commission would report to the President onits assessment of operations, effectiveness, and efficiency of the programs and agencies which werereviewed. The commission might also submit to the President a legislative proposal to reorganize,consolidate, abolish, expand, or transfer any of the programs and agencies just reviewed. Within 30days after the commission reports, the President would transmit to Congress the assessment and anylegislative proposal submitted by the commission, along with the President's recommendationsregarding the assessment and proposal.

Expedited Congressional Procedures(9)

H.R. 5766 mandates that congressional consideration of legislationimplementing a commission's recommendations occur under special "fast track" legislativeprocedures. Congress sometimes chooses to apply expedited legislative procedures of this type toits consideration of specific measures because the regular legislative procedures of the House andSenate are time-consuming, and do not guarantee that a given measure or type of measure will beconsidered in a timely fashion or at all. It is noteworthy, however, that as introduced, amended incommittee, and ordered reported favorably, H.R. 5766 specifies fast track procedures onlyfor the House of Representatives; with respect to the Senate it reads: "[Language to be provided]."

Ordinarily, Members of either house may choose to introduce legislation at any time that theirchamber is in session during a two-year Congress. Under H.R. 5766 , the majorityleader of the House or his designee would be required to introduce the bill within five legislativedays after receipt from the President of the draft implementing measure, (10) but committee referral ofthe bill would follow regular legislative procedures.

Congress generally does not mandate that a committee act on a bill referred to it within aspecified time frame. Under H.R. 5766 , if a committee does not report theimplementing legislation referred to it within 30 legislative days, a privileged motion would be inorder, debatable for up to 20 minutes, to discharge the panels from further consideration. Thescheduling of a vote on that motion would be at the discretion of the Speaker, but would have tooccur within the next two legislative days. Upon report or discharge, an implementation bill wouldbe placed on the House calendar.

Following the report or discharge of implementing legislation from committee, H.R. 5766 would make in order a privileged motion to call up the legislation on thefloor. When a Member announced his intention to offer such a motion to proceed to consideration,the scheduling of a vote on that motion is at the discretion of the Speaker but, again, must occurwithin the next two legislative days. (11) Once the House has chosen to take up the implementinglegislation by adopting the motion to proceed, its consideration is, in a sense, "locked in." It remainsthe unfinished business of the chamber until disposed of. Other business cannot intervene; it cannotbe laid aside; and it must be disposed of before other matters may be taken up.

In the absence of a special rule dictating otherwise, the House ordinarily debates measuresunder the one-hour rule. In the Senate, debate is ordinarily unlimited except by unanimous consent,by the invocation of cloture, or by some other special procedure, such as that governing budgetreconciliation. H.R. 5766 would limit House debate on the implementing bill to 10hours. The bill also would limit Members' ability to delay consideration of the implementinglegislation by barring amendments and motions which would ordinarily be permissible underchamber rules. At the conclusion of the time specified for debate, the House would immediately voteon passage of the legislation.

Expedited procedures sometimes stipulate that if, before voting upon implementinglegislation, either chamber receives implementing legislation passed by the other chamber, thatsecond measure is not referred to committee, but is voted on instead of the first chamber'smeasure. (12) H.R. 5766 , however, does not specify any expedited elements after House passage. Theomission of such automatic "hookup" procedures from H.R. 5766 leaves open thepossibility that there will be a need to resolve differences between the House and Senate onimplementing legislation, as well as the possibility that implementing legislation will die at this finalstage of the legislative process.

Although fast track procedures such as those proposed in H.R. 5766 may becodified in law rather than contained in the rules of the House and Senate, they have the same effectas chamber rules and, as a result, are often called "rule making statutes." The fact that an expeditedprocedure is contained in statute does not mean that another law must be passed in order to alter it. The provisions can be changed, for example, by the adoption of a special rule from the HouseCommittee on Rules, by suspension of the rules, or by unanimous consent agreement.

It is important to point out, however, that the House of Representatives has the ability tochange its rules more easily than is possible in the Senate. Changing Senate rules is virtuallyimpossible without the widespread support of a super majority of Senators. As a result, expeditedprocedures of the type proposed in H.R. 5766 for the House, if extended to the Senate,arguably would bind the Senate far more dramatically than they do the House. Simply put, theywould remove the right every Senator possesses under the rules to filibuster legislation and to delayor prevent a final vote on its passage. The House may, and often does, ignore statutory expeditedprocedures by adopting a special rule from the House Committee on Rules laying out alternativeterms of consideration. (13) Unless strong Senate expediting provisions are added to H.R.5766, the "fast track" procedures will arguably be of negligible value; the expeditingelements as currently written apply only to the House, which does not need such provisions to workits will.

Comparison of Selected Features in H.R. 3282 and H.R. 5766

Table 1 provides an overview of selected features in the two bills. The following discussionhighlights some differences and similarities between the measures.

There are no parameters in the language contained in H.R. 5766 regarding a timeframe for the total duration of the reviews. The provisions suggest multiple ad hoc commissions,with each coming into existence pursuant to an executive order or joint resolution. The bill wouldrequire the President to submit to Congress a schedule for establishment of FRCs to review allfederal agencies and programs. In contrast, H.R. 3282 stipulates that within a year ofenactment the sunset commission would submit a review schedule to Congress, providing for eachagency to be reviewed at least once every 12 years. H.R. 5766 is also silent regarding thenumber of commissions that might be established to accomplish the reviews. Nothing in the billappears to preclude the simultaneous existence of more than one FRC. In contrast, H.R.3282 envisages the sunset commission as an ongoing institutional body (with rotatingmembership).

With respect to membership, H.R. 3282 provides for a 12- member commission,half of whose members would be appointed by House and Senate leadership. H.R. 5766 provides for a seven-member commission appointed by the President, with advice fromcongressional leaders. Although both bills would likely ensure bipartisan commissions, in that bothDemocrats and Republicans would be appointed, the membership would not necessarily be equallybalanced. The party of the President would probably enjoy at least a 5-2 majority on each of theFRCs. Under H.R. 3282, the FASC's membership might be skewed 8-4, if the same partycontrolled both chambers of Congress.

As noted already, H.R. 3282 contains an action-forcing mechanism, whereas H.R. 5766 lacks such a provision. Under H.R. 3282, each agency would beabolished a year after the completion of the sunset review, unless extended by law. On the otherhand, H.R. 5766 provides expedited congressional procedures for implementing therecommendations of the commission, whereas expedited procedures are absent in H.R.3282. Some might support the inclusion of such procedures to facilitate consideration ofa bill, for example, to extend the life of an agency due to terminate for another two years, asauthorized in H.R. 3282, thereby allowing additional time for Congress to act on areauthorization bill.

H.R. 3282 also would provide for compilation of a program inventory to assistthe commission and Congress in the sunset review process. H.R. 5766 is silentregarding where the President might turn for assistance in devising the purviews and review schedulefor FRCs, which he would be required to submit to Congress within a year after the creation of thefirst FRC.

Both bills would eventually sunset the commissions. Under H.R. 5766 eachreview commission would terminate 90 days after submission of its assessment and possiblelegislative proposal to the President. The sunset commission established under H.R. 3282 would remain in existence through several Congresses and Administrations, but wouldterminate on December 31, 2030, absent reuthorization.

Finally, one might keep in mind the possibility that H.R. 3282 and H.R. 5766 could conceivably both be enacted, either as separate bills or combined ina single measure. Chairman Davis noted at the hearing on July 19 that the two bills as written couldbecome separate titles of a new bill for floor consideration, "thereby establishing the framework forBrady's "long-term" commission as well as Tiahrt's ad hoc, more focused, commissions." (14) Some, however, mightview the provisions of the bills as possibly redundant, even if not incompatible. Funding to coveradministrative expenses of operating two ongoing commission frameworks might arguably engenderresistance. To the extent that some are concerned with the bills individually for ceding too muchpower from Congress to the executive branch, enactment of both bills would serve to compound thepower transfer.

Table 1. Selected Features in H.R. 3282 and H.R.5766