Sunset, Results Commission Proposals Likely

Both the White House and congressional Republicans have vowed to introduce legislative packages that would force programs to fight for their lives every 10 years and would link controversial performance ratings to decisions about the very structure of government. As we reported before, the White House's fiscal year 2006 budget submission announced two proposals for creating unelected commissions with far-reaching powers to weaken protections of the public health, safety, civil rights, and the environment. One, for a "sunset commission," would force all government programs to plead for their lives on a periodic basis, such as every 10 years. The other would allow for ad hoc "results commissions" charged with reviewing administration proposals for restructuring or eliminating programs in order to "improve performance and increase efficiency." Clay Johnson, deputy director for management at the Office of Management and Budget, recently told the Federal Times that OMB will soon submit legislative proposals to create these sunset and review commissions. Bills in previous congresses put forward similar proposals, and a recent article by the industry-funded think tank Mercatus Center reports that Republican lawmakers are planning to reintroduce those bills in the 109th Congress. Rep. Kevin Brady (R-TX) introduced the Abolishment of Obsolete Agencies and Federal Sunset Act in every session of Congress since 1997, and Sen. Sam Brownback (R-KS) introduced in the 108th Congress the Commission on Accountability and Review of Federal Agencies Act (CARFA) that would terminate or realign government programs viewed as "ineffective." Both Brady and Brownback are expected to introduce their legislation again this term, according to the Mercatus Center article. CARFA CARFA was first introduced by Rep. Todd Tiahrt (R-KS) in 2002. Tiahrt's original proposal called for the creation of a 12-person commission, appointed by the president. The commission would have two years to review federal programs and agencies and propose legislation to realign or eliminate programs based on their assessment. In making its recommendations, the commission would look at all programs but those in the Department of Defense. CARFA would create a fast-track for the resulting bill, requiring Congress to take up the bill immediately and requiring a straight up-or-down vote with no possibility of amendments. Debate would be limited to only 10 hours. The bill made no provisions to protect programs that safeguard public health, safety the environment, or civil rights. CARFA was modeled on the Defense and Base Closure and Realignment Act (BRAC), which was first used during the Kennedy administration in the 1960s and then resurfaced in the late 1980s to close unneeded military bases while avoiding political skirmishes among representatives. CARFA, however, had important differences from BRAC. First, while BRAC required a bipartisan commission, comprised equally of Republicans and Democrats, the CARFA bill would have allowed the president to choose all the members of the commission. Further, while a straight up-or-down vote saved the closing of military bases from political infighting, voting up or down on CARFA proposals would play only into special interests; by selecting programs to be eliminated but never addressing unmet needs, CARFA would act as a one-way ratchet, slashing needed government programs without addressing gaps in protection. Whereas a commission more closely comparable to BRAC would recommend closures of specific program sites, such as one Head Start center, a CARFA commission would recommend the elimination of entire programs, such as Head Start itself. In the last Congress, Brownback put forth the same legislation, but with several important changes. First, Brownback's legislation, which was also introduced in the House by Tiahrt, excluded entitlement programs as well as those operated by the Department of Defense from review by the commission. Second, the bill would have required the president to develop a review methodology, present it to the commission for approval, and conduct reviews of at least half of all government programs. The Brownback version would have required program assessments to be "based primarily on the achievement of performance goals." Already the White House's Office of Management and Budget uses the Performance Assessment and Rating Tool (PART) to assess government programs. The clear intention of this proposal, as evinced by both the language of CARFA and Senate testimony on the bill, is to use tools like the PART assessments to justify eliminating government programs and agencies. Though PART appears to be a neutral tool to assess government productivity, we have shown elsewhere that PART is highly political and fails to capture the real successes and failures of government programs. PART is so flawed that some programs actually receive point reductions for following the law. Using this tool to remake government could have dangerous consequences for the health, safety and security of Americans. Sunset Commission Brady's Abolishment of Obsolete Agencies and Federal Sunset Act (originally titled simply the Federal Sunset Act) sought to require agencies and programs to justify their continued existence or face elimination. The bill would establish a 12-person bipartisan commission comprised of four members of the House, four members of the Senate, and four individuals who are not members of Congress but have expertise in government affairs and operations. The commission would review federal agencies on a set 12-year cycle. Each agency reviewed by the commission would be abolished within a year of the review unless Congress voted to reauthorize the agency. Each agency up for review would be evaluated on a laundry list of criteria, including cost-effectiveness, number and type of beneficiaries, continued need for the program, extent of public participation, and coordination with state and local governments. The commission would be required to hold public hearings and request public comment on each agency under review and to work with the Government Accountability Office, OMB, and chairmen and ranking members of any relevant congressional committees. The commission would then report to Congress on its findings and make recommendations in the form of legislation. The commission would also be required to monitor and report to Congress on any legislation creating new agencies or programs. The model for this commission is based on the Texas Sunset Advisory Commission. Critics of the Brady proposal have argued that the prospect of reviewing every federal program to this level of detail would be timely and costly. This massive undertaking would also be duplicative of systems of accountability and oversight already in place, such as congressional oversight committees. In a 1998 hearing on Brady's bill, Ed DeSeve, then OMB's deputy director of management, argued that "the proposed structure and process in H.R. 2939 would substitute the conclusions of a 12-member commission for the judgment of congressional committees, the full House and Senate, and the president. It would effectively put eight members of Congress in a preeminent role over all other duly elected members and provide no role for the president." Any Chance of Success? Fortunately, neither of these bills gained much traction in previous Congresses. In fact, neither one ever made it out of committee. The White House apparently had not consulted with members of Congress when it first announced its plans for sunset and results commissions, and it is unknown if the White House is now working with Brady and Brownback or if its proposals will be unrelated initiatives. Whether or not these bills garner support on the Hill, they will likely surface in the months to come.
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