Sunset Laws

A “sunset law” or “sunset provision” is a law that provides for the automatic termination of a government program, agency, or law on a certain date, unless the legislature affirmatively acts to renew it. Sunset laws were widely promoted in the United States in the 1970s as reform measures to eliminate bloated and unresponsive government bureaucracies. Political theorist Theodore Lowi, for example, touted sunset provisions as diminishing interest-group power over government programs and as promoting more active legislative oversight. Legislators would have to be convinced of the independence and efficacy of programs facing sunset provisions if these programs are to survive, and they would presumably not renew programs that were failing or that served only a few special interests.

In spite of support from prominent politicians and government reform groups such as Common Cause, no comprehensive federal sunset law was passed in the United States. A majority of states did create sunset programs, however, and a large number of individual federal statutes were drafted with sunset provisions. These generally provided for formal review of agencies, boards, and commissions, with program termination looming for those that could not persuade sunset audit staff (and the legislators to whom they reported) of their efficacy.

The 1970s sunset provisions were not terribly successful in practice, however. From the beginning, many of them exempted larger agencies from any review. Moreover, by the early 1980s, it was widely recognized that the de facto burden of proof had shifted from agencies undergoing sunset review to the staff conducting it. Program renewal was commonplace, and actual sunsets were rare. Agencies—supported by the powerful interest groups that sunset laws were supposed to disempower—successfully defended the status quo. Since the 1970s, a large number of laws passed with sunset provisions have had those provisions removed by technical amendment well before any audit or review takes place. Nonetheless, some scholars have argued that while few state programs are actually threatened by sunset provisions, sunset laws have to some extent encouraged more active legislative oversight than previously existed.

In current political practice, sunset provisions are used tactically in at least two ways. First, they are used as a bargaining chip in gathering votes in favor of controversial legislation. The presence of a sunset provision can persuade a wavering legislator (or that legislator's public) of the “purely temporary” nature of a controversial law. Thus, for example, sunset provisions are thought to have been partially responsible for the bipartisan support for the USA PATRIOT Act, which greatly enhanced federal prosecutorial powers in the wake of the September 11, 2001, terror attacks [Page 2025]on the United States. Sunset provisions can also be used cynically to reduce the projected costs of a new program, tax, or tax reduction. Public statements can be based on estimates that only forecast costs out to the sunset date, even if it is expected that the program will eventually be renewed or have its sunset provision repealed.