Obsolete law is a significant—and ignored—cause of government waste and an obstacle to economic growth. Yesterday’s laws and regulations cannot always adequately address today’s needs. Worse yet, they often senselessly tie the hands of government officials and Americans in every sector of society, preventing them from making common sense decisions to address challenges or create opportunities.
Outmoded laws and regulations often perpetuate government
programs and bureaucracies that no longer have a sensible purpose. From
seventy-five year-old agricultural subsidies to the fifteen separate agencies
overseeing food safety, these programs waste tax dollars and gum up the system.
Removing them would be a strong step toward putting
When states and the federal government have attempted to address accumulated law in the past, their efforts have mainly focused on reducing short-term budget shortfalls and not on the structural problems that lead to legal accumulation in the first place. More direct approaches, like sunset laws, have largely failed to change the status quo. As a result, the problem of obsolete law persists—and in fact has grown worse.
Common Good has proposed Spring Cleaning Commissions for both state and federal governments: an independent body of current and former government officials and private citizens that would comb through existing laws, regulations, and programs to identify those which are obsolete and redundant. The commissions would draft plans to simplify and streamline these laws, regulations, and programs, which state and federal legislatures would then have the opportunity to approve or reject in full.
The challenge for this forum is straightforward: What approach would you recommend for addressing obsolete law, why, and how would you implement it?
We’ve asked experts with a variety of perspectives on the relevant issues to share their assessments, and we invite you to share your thoughts in the comments below.
Posted December 12, 2012, 10:15am
Given the difficulties that have been identified with the most familiar proposals for cleaning out obsolete law -- sunset provisions, commissions suggesting law reforms for lawmakers to adopt, and more -- I suggest something more complicated, with apologies to anyone who may have suggested it before.
How about a law authorizing the president (or the governor, in the case of a state) to nominate a blue-ribbon commission of active and retired federal (or state) judges, who in turn would have the authority to appoint as many expert advisory bodies as they see fit, and to update laws in any way that they deem likely to garner broad public support and survive the political branches' scrutiny? Nominees for the commission would be subject to the Senate's advice and consent. Most important, its proposals would take effect automatically after 180 days unless rejected by the president (or governor) or overridden by a new law. It could be called the Commission for Fixing Obsolete Laws and Regulations.
This idea is a distant cousin to Judge Guido Calabresi's 1985 proposal to authorize judges -- who have a good vantage point for identifying obsolete laws -- to override them on a case by case basis. But the Calabresi proposal has never caught on because it would give courts too much power to dispense with laws based on individual judges' personal or ideological preferences. Hence the idea of a commission of judges -- or, perhaps, of judges and others with relevant expertise.
Still, an unchecked power to rescind or revise democratically enacted laws might be too broad to delegate even to a blue-ribbon commission. Hence the idea of a presidential power to reject commission proposals, which would supplement the established power of lawmakers to override any law, including one proposed by a commission.
Some would no doubt argue that this gives too much power to the executive, who would have the authority not only to nominate commission members but also to either reject their proposals or prevent the legislature from rejecting them (absent a supermajority vote to override any presidential veto).
But in our system, given legislative inertia, the more cautious approach of allowing the commission only to make recommendations for lawmakers to consider would doom the vast majority of the recommendations, no matter how wise or how widely supported. The only way to make a serious dent in this gigantic problem is to create a body with the power to make things happen unless overridden by the executive or by a new law.
The Senate's power to reject nominees should be an adequate safeguard against any executive power grab, especially if exercised with the understandings that in this context the Senate owes no deference at all to partisan or immoderate nominees; that slates of nominees must be ideologically balanced; and that the commission's assignment is to propose good-government reforms with broad bipartisan appeal, not to promote anyone's political agenda.
One virtue of this proposal (among others) is that the commission could use its discretion to attack the biggest problems, whether they be EPA regulations that have outlived their usefulness or financial regulations that were never useful in the first place, rather than wasting time on obsolete laws that are harmless or unenforced.
Of course, any such commission would be incapable of taking bold action to junk laws and regulations that have broad political constituencies, no matter how obsolete they may seem to some of us. But the same would be true of any other proposal that I can imagine. And mine seems a better bet than others to weed out obsolete laws and regulations that have previously been sustained by narrow but powerful special interests -- not least, by the federal bureaucrats who administer them.
Posted December 12, 2012, 10:30am
Obsolete law is the hydra-headed monster that devours the fruits of our labors and even our fellow citizens. President Lincoln, in his first state-of-the-union message, called on Congress to devise a plan to fight the evil of thousands of obsolete, conflicting and confusing laws, and predicted that the accomplishment of such a plan would improve government and bring “lasting benefit to the people. “ Congress eventually did devise a plan, which resulted in the modestly successful Revised Statutes of 1877.
151 years later the Common Good, following Lincoln’s lead, asks us all to help devise a new plan. We are to give our ideas of how to go about accomplishing this Herculean task. There are many questions we must answer. Here, I would like to begin by identifying three for discussion: what kinds of champions should we choose to fight obsolete law? With what plan should they attack? And, with what results in mind?
What kinds of champions should we choose? Why Hercules, of course, and his nephew, Iolaus. We will need not one Hercules, but many male and female Hercules-es and their nieces and nephews. Where Lincoln faced thousands of laws, we face tens of thousands.
I will make the case that it is not too much to expect that our most respected jurists take on the task. The first century of our republic was replete with law reform. Hercules was the model reviser. Already in 1791, the year of the Bill of Rights, the Pennsylvania House of Representatives sought a jurist “to prepare bills, containing such alterations, additions and improvements, as the code of laws, and the principles and forms of the constitution then lately adopted might require.” It selected Justice James Wilson—the Revolutionary era’s Herculean jurist and signer of both the Declaration of Independence and the Constitution. The task was too much for him (after all, even Hercules needed the help of his nephew Iolaus to kill the hydra) and too little supported by the legislature; it went unaccomplished. Thirty years later New York tapped three distinguished jurists to carry through the successful revised statutes of New York of 1828. In 1835 Justice Joseph Story—the maker of American law par excellence and Justice Marshall’s trusted compatriot on the Supreme Court—headed up a Massachusetts committee of five that called for codification. David Dudley Field, the leading law reformer of all of American legal history, fought indefatigably for four decades for sensible laws; he headed up two different commissions, each composed of three commissioners.
How should our champions go about cleaning out obsolete law—en gross or in discrete legal fields? History teaches that cleaning up obsolete laws will take a long time. The Commission that Lincoln inspired in 1861 was not established until 1866 and did not produce its final report until 1873. Congress required another year to deal with it and corrections led the proposal to achieve final form only in 1877. It single task was enormous: address all public statutes.
Breaking the task up into smaller pieces is more practical. Field broke up his reforms into five pieces; he seems to have taken as his model the famous five French codes of Napoleon. Today the French have more codes than the classic five and have added other laws that are code-like in coverage. We would do well to follow the contemporary French model and break the task up into ten or more subject-related areas, each under its own Hercules. Such division is practically compelled if results are to be delivered in reasonable time and with reasonable quality.
In plotting our strategy we should consult those with experience. Law revision has been ongoing, if muted, in America through the twentieth and into the twenty-first century. I has been undertaken by, among others, the Uniform Laws Commission, the American Law Institute, state law reform commissions, the legislative counsel of the House of Representatives and of the Senate and—most important for this project—the Office of Law Revision Counsel of the House. The Office of Law Revision Counsel has been charged for decades with overseeing the United States Code and with preparing enactments of the code’s more than fifty titles into positive law. It has a staff of fifteen lawyers. Our task will require many more. We should not forego the benefits of those with experience. Later I should like to address what we might learn from foreign systems.
What results should our champions seek—restated or revised law? The Office of Law Revision Counsel of the House avoids substantive changes in law. Its work is technical. Lincoln wanted more: laws “should be made as plain and intelligible as possible, and be reduced to as small a compass as may consist with the fullness and precision of the will of the Legislature and the perspicuity of its language.” Justice Wilson wanted to make of the criminal laws the “first experiment of their justice and efficacy.” The drafters of the 1828 New York Revised Statutes were criticized for taking too many liberties with substantive law. So too were the authors of the 1874 federal Revised Statutes. We see the same phenomenon today in criticisms of the work of the ULC and of the ALI. The act of eliminating obsolete law and coordinating that which remains seems almost inevitably to attempt to write better laws. But that effort inexorably risks sweeping the proposals into the whirlpools of those interested in continuing obsolete laws. That is why we need Hercules-es, Iolaus-es and perhaps Ulysses-es as well!
Posted December 12, 2012, 3:00pm
There is a lot of talk about reducing the budget deficit. Raise tax rates? Repeal deductions? Cut spending? But if we don’t change the fundamental system that’s produced the fiscal mess, it will only get worse.
An embedded flaw in the system is obsolete law. This includes not only outdated legal rules, but costly government programs that are no longer needed and regulations that have become useless or, worse, counterproductive.
As a former legislator and state cabinet official, I learned the hard way how government works––and why, often, it doesn’t.
Legislators often pass bills that create new rules and bureaucracies to solve problems. Do this! Don’t do that!
The snag is that many of these bills don’t do what they’re supposed to do. Frequently, bureaucrats ignore them and the initial purpose fades away. In other cases, they no longer meet the changing needs of modern society. All the while, useless laws, agencies and regulations pile up. Billions of dollars are wasted. And millions of hours spent by public employees and private citizens are exhausted trying to deal with paperwork that shouldn’t even exist.
So how do we solve the problem of obsolete law?
One way tried, with minimal success, is the sunset provision––putting expiration dates on laws and rules. This approach forces legislators and regulators to act if they want to keep a law or a rule on the books.
To understand how to make sunsets work, we need to first take a look at the three historical motivations for using them:
The first is political. Sometimes it’s easier to pass a controversial bill if its life is limited, like the assault weapons ban of 1994, which had a 10-year sunset. The ban, which expired eight years ago, has never been reenacted.
The second motivation has to do with legislative rules. The 2001 and 2003 Bush tax cuts, for example, were passed with a 2010 expiration date. That was done to avoid a Senate rule that allows Senators as part of the reconciliation process to block legislation if it increases the federal deficit beyond a ten-year term. In 2010, the tax cuts were extended, but with a two-year sunset, expiring at the end of 2012––which, of course, helped drive us to the “fiscal cliff.”
The third motivation is the most noble––and the one that can best solve the problem of obsolete law––and that is the concept of review. The idea here is that every new law, program or regulation should be road tested and then reviewed to see if it works as intended. They should also be periodically revisited to ensure they’re still needed as circumstances evolve. While sunsets are often included in laws for this reason, the problem is the depth and quality of the review process upon expiration.
Inadequate review is the reason many sunset provisions are, in effect, meaningless. Legislatures routinely re-enact noncontroversial laws with sunset provisions without much thought and with virtually no review process. Reenactments are often packaged together on “consent” calendars and sail though the process without debate. The point of the exercise––a careful re-evaluation of existing law––is ignored.
Legislative bodies don’t take the sunset review process seriously for two practical reasons: interest groups and legislative focus.
Interest groups don’t want legislators poking around favored rules, programs and laws. These groups prefer the status quo––and it’s easy for legislators to comply. Reviewing and revising old deals and compromises that have been embedded in law books and regulatory codes can be risky business for a politician.
It is very hard––nearly impossible––to get a legislative body to focus on anything except those issues on that day’s or week’s calendar. Legislators and their staff members are busy people; asking them to stop and consider the effectiveness of an old law when they’re running around trying to pass, defeat or amend new ones is contrary to how they roll.
So how do we get over these institutional humps?
We need to focus new public attention on the sunset review process. When an outmoded law is up for review, it should be called out––even if it’s not a big deal like gun control or taxes––and used as an example of government idiocy. When a program is about to sunset, and there is ample evidence it’s no longer needed, the dollar amount of the wasteful expenditure should be publicized.
Spotlighting obsolete laws, useless programs and senseless regulations when they are about to sunset can be done by civic groups and the media. Citizens testifying before legislative committees, holding press conferences on capitol steps, and writing op-eds and blogs will force elected officials to at least listen. If the sunset review process won’t work from the inside, outside pressure is needed to compel it to work.
We also need to create a mechanism––outside of both the legislative process and the bureaucracy––to review all laws and programs. Independent commissions appointed by presidents and governors can do this. These panels should be composed of citizens who have practical expertise and no conflicts of interest. They would conduct reviews and make the results public, releasing recommendations on which laws, rules and programs should be repealed or reshaped.
Eliminating obsolete law is not easy. That’s why we need to keep trying new ways.
In the end, good government is hard work––for both elected officials and citizens. There is no way around it.
Posted December 13, 2012, 1:30pm
There are, I think, several different types of "obsolete law" that require different remedies. The least dangerous, and most humorous, kind is the quaint law that no one has bothered to change, or enforce, since times have changed:
"Many of these laws were developed before the advent of mechanized transportation. Oftentimes, they relate to the treatment and care of horses. Consider, for example, that in Kansas, all places of business are required by law to provide a water trough for horses, or that in Alabama, it is an offense to open an umbrella on the street, since it might spook horses. In California, you are breaking the law if you pile horse manure more than six feet high on a street corner." (http://www.equisearch.com/community/lifestyle/itsthelaw072901a/)
A more pernicious kind, however, is when the law that once served a purpose is maintained long after the circumstance that justified its birth because of support by an interest group that benefits from its retention. The oils depletion allowance (which has gradually been phased out) is the classic example: perhaps it was necessary originally to induce companies to engage in the risky business of exploring for oil, but as oil company profits zoomed, we continued to subsidize this activity with favorable tax treatment. Another might be the current subsidies and mandates for ethanol from corn, which are of questionable value from an environmental standpoint but of great interest in Iowa (which plays a key role in the Presidential primaries). A third would be rent control in New York City, which was justified by an "emergency" situation during World War II, but still benefits some tenants who still pay below market rents.
In these instances, it generally isn't sufficient to expose the law as obsolete. I have reluctantly come to the conclusion that in some instances we have to buy out the special interests who benefit from these obsolete legislative enactments.
This is a strategy we have used with success in many other areas: it is much easier to make mass layoffs if a company is able to offer employees an attractive "package" of incentives to retire early. So too academic work has shown that partial compensation will often reduce political opposition to programs such as wetlands preservation, thereby leading to tougher regulation than if there were no compensation.
Posted December 17, 2012, 10:30am
Common to most of the comments is recognition that getting rid of obsolete laws requires creation of an institution that has political clout and responsibility. I think that it should be a permanent institution and not an ad hoc one. Only in that way can future obsolete laws be headed off. It will have to work with many different institutions, i.e., legislatures, cabinet departments, agencies and so on. It might take any of a number of forms, e.g., a Department of Legislation, a Ministry of Justice (such as U.S. Justice Cardozo once proposed and is found in many countries), a Productivity Commission (Australia), a Norm Control Council (Germany) or a Higher Codification Commission (France). Our problem is common problem that other countries have already addressed more thoroughly than we.
An international organization that we helped found, the Organisation for Economic Cooperation and Development (OECD), is helping the leading economic powerhouses put their legislative houses in order. Just last March it issued a Recommendation on Regulatory Policy and Governance which is a continuation and culmination of many years’ work designed to improve government and further economic and social development. http://www.oecd.org/gov/regulatorypolicy/49990817.pdf
Whatever institutional form our efforts take, I suggest that we follow OECD recommendations and:
"Commit at the highest political level to an explicit whole-of-government policy for regulatory quality. The policy should have clear objectives and frameworks for implementation …; systematically review the stock of regulations periodically to identify and eliminate or replace those which are obsolete, insufficient or inefficient; and adopt an integrated approach, which considers policies, institutions and tools as a whole, at all levels of government and across sectors, including the role of the legislature in ensuring the quality of laws …"
We may already have the germ of that idea in the White House Office of Information and Regulatory Affairs. http://www.whitehouse.gov/omb/inforeg_default/. We should extend it with force to law generally.
Posted December 17, 2012, 11:00am
I agree with Jim Maxeiner that we need a permanent institution that proposes revisions. In fact, I wrote an article in 2008 proposing such institutions: E. Donald Elliott, Portage Strategies for Adapting Environmental Law and Policy During a Logjam Era, 17 NYU Envt’l L.J. 24, 51-52 (2008). Among other things, I point out that Connecticut and several other states already have such bodies, and that they also seem to work well to update the law in the few areas of federal law (such as the Standing Committee of Rules of Practice and Procedure and Administrative Conference of the United States www.acus.gov) where we have one:
"The United States Congress stands out internationally as one of the few places where the task of developing and proposing legislation on complex technical subjects is left to the legislators. … One option for going around the Congressional "logjam" is to build an ancillary institution with the time and expertise to hammer out policy changes and present them to Congress for ratification, rejection or fine-tuning. There are numerous examples of this model in which a diverse group of experts puts together consensus recommendations to legislatures. For instance, some states [Connecticut and California] have what they call Law Revision Commissions that make recommendations for legislation to the legislature. …This is not too different from the Standing Committee on Practice and Procedure under the federal Rules Enabling Act (except that the ratifying bodies are both the Supreme Court and Congress), or the idea behind the American Law Institute's "Restatements" of the common law in various areas, or the Administrative Conference of the United States, which, until its [temporary] abolition in 1995, made expert recommendations to Congress for improving the administrative process.
"In each of these "expert consensus proposal systems," managing change in a complex and highly technical legal system is facilitated by expert advice and guidance in developing policy packages that already contain the key compromises built into them."
Posted December 17, 2012, 12:15pm
When thinking about creating permanent entities to review existing law and regulation, we need to consider scope of work: Will these entities focus on only technical cleanup and revision or will they also make policy judgments as to whether a law, a regulation or a program is actually working and still needed?
While the broader scope would be more controversial and much more political, it would also yield bigger results.
Determining that a multi-billion dollar farm subsidy program is no longer needed, or that prevailing wage rules in public infrastructure projects are no longer defensible, are conclusions that would attract significant political opposition. But aren't these issues, tough and messy as they are, the kind of issues in need of a spotlight? Aren't they necessary for accomplishing important policy goals such as balanced budgets and more efficient government?
Another point should be made about entities created to weed out obsolete law, and that is the need for outside input and independent thought. If such an entity--be it a commission, a committee or an actual department--is made up of government insiders, will it give issues the fresh perspective that is needed? Or will it tend to go along with the status quo?
Posted December 17, 2012, 7:00pm
Ron has put his finger on the trickiest question for any body appointed to target obsolete laws. As he suggests, entirely uncontroversial updating and housecleaning is worth doing, but unlikely to make as big a difference as we need. On the other hand, tackling special-interest sacred cows such as the Davis-Bacon Act, farm subsidies, and the wildly excessive paperwork requirements of HIPAA (the Health Insurance Portability and Accountability Act) could make a big difference, but seems an uphill battle.
(I take it as a given that while most of us would like to see a law-reform commission tackle broadly unpopular laws that survive only because of special interests, it would be probably be an exercise in futility for such a body to target laws that have the support of a majority, or even a large minority, of the general public.)
Uncontroversial housecleaning and tackling special-interest sacred cows are very different projects. A seat on a commission devoted mainly to the former might not be attractive to many of the prominent, high-powered people whose clout would be essential to doing the latter.
So I wonder whether we need two commissions, at least at the federal level, one for housecleaning and one for targeting obsolete (and unpopular) laws that have been sustained by narrow special-interest support.
I wince at the thought of adding not just one, but two, new governmental bodies as part of an effort to cut through bureaucratic paralysis. But could a single commission do both jobs well?