On March 16, Sen. John Cornyn (R-TX) proposed a controversial amendment to a small business reauthorization bill. The amendment would create a so-called "sunset commission," which is designed to identify and eliminate federal programs deemed unnecessary. The commission, billed as a "good government" measure by proponents, would likely operate behind closed doors, usurping the traditional oversight role of key congressional committees and potentially eliminating important programs.

Cornyn's commission is relatively simple. A panel of eight members, four from each house equally divided along party lines, would operate using a two-step process. First, at least once every ten years, it would create a review schedule, which would essentially tell Congress which agencies and programs the commission would review. Second, the commission would evaluate each item on the review schedule according to certain criteria to determine if it should be terminated, reduced, consolidated, or continued. The commission's recommendations would then be sent to Congress as a legislative package. If Congress does not reauthorize the agencies and programs in question within two years, the commission's recommendations would automatically be carried out.

To decide which programs would be reviewed, the Cornyn amendment provides enormous latitude. At least 25 percent of the items (in dollar terms) in the "Commission Schedule and Review" must come from a Congressional Budget Office (CBO) report on unauthorized and expiring appropriations and at least 25 percent must come from a Government Accountability Office (GAO) report on duplicative programs. The rest of the items can be composed of any other agencies or programs the commission chooses.

By law, CBO must compile an annual list of all unauthorized appropriations and expiring authorizations, which can include agencies, programs, or activities. Normally, congressional rules only allow appropriations for programs that have been authorized, but this is not always the case. In January, the CBO found some $767 billion worth of authorized appropriations that will expire on or before the end of the 2011 fiscal year, $725 billion of which comes from the National Defense Authorization Act.

The GAO is tasked with annually highlighting federal programs and agencies that have "duplicative goals or activities." The first annual duplicative programs report was released in early March.

Simply because a program is labeled "duplicative" or "unauthorized" does not necessarily mean the commission will automatically recommend the program for elimination, reduction, or consolidation. The commission will evaluate each program according to ten criteria set forth in the amendment:

1. The effectiveness and the efficiency of the program or agency.
2. The achievement of performance goals (as defined under section 1115(g)(4) of title 31, United States Code).
3. The management of the financial and personnel issues of the program or agency.
4. Whether the program or agency has fulfilled the legislative intent surrounding its creation, taking into account any change in legislative intent during the existence of the program or agency.
5. Ways the agency or program could be less burdensome but still efficient in protecting the public.
6. Whether reorganization, consolidation, abolishment, expansion, or transfer of agencies or programs would better enable the Federal Government to accomplish its missions and goals.
7. The promptness and effectiveness of an agency in handling complaints and requests made under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act).
8. The extent that the agency encourages and uses public participation when making rules and decisions.
9. The record of the agency in complying with requirements for equal employment opportunity, the rights and privacy of individuals, and purchasing products from historically underutilized businesses.
10. The extent to which the program or agency duplicates or conflicts with other Federal agencies, State or local government, or the private sector and if consolidation or streamlining into a single agency or program is feasible.

However, there is no clear guidance in the amendment on how these criteria are defined or how they should be applied. A program could theoretically pass muster if it fails all of them or be eliminated even if it meets all of the criteria.

Both the Commission Review and Schedule and the commission's recommendations are fast-tracked through the House and the Senate. The review schedule and recommendations are introduced into relevant committees and must be reported out within 30 days. Action on the review schedule is swift: debate is limited to ten hours, and no amendments are allowed. The recommendations can only be debated for 50 hours before votes are held, although amendments are allowed both in committee and on the floor.

The fast-track and automatic termination provisions indicate that the commission would have tremendous power. Although Congress regularly creates temporary committees or commissions, such as the Congressional Oversight Panel that helped perform TARP oversight, rarely do these bodies have as much power as the proposed sunset commission. Eight members of Congress would have power usually reserved to whole committees in both houses, and Congress as a whole would be left with just a single set of recommendations in one bill, potentially involving hundreds of programs related to education, the environment, workers, housing, nutrition, transportation, and other vital issues and constituencies.

Another significant problem with the sunset commission is the opacity in which it would operate. The commission is not required to take any input from the public or to hold open deliberations. The commission's decision making process could occur entirely behind closed doors, and the public would never know the rationale behind decisions to eliminate or consolidate important federal programs. The only time the public would have any input on the commission's recommendations would be when those recommendations are up for a vote on the House and Senate floors.

The lack of transparency in the commission's deliberations is a serious issue, since the commission could theoretically include every agency and program listed in the CBO and GAO reports, as well as any other agencies or programs, in its review schedule. That could include almost 700 agencies and programs (close to six hundred programs up for reauthorization or whose authorization has already expired, almost one hundred duplicative programs) that Congress would then have to affirm within two years of receiving the commission's recommendations, a tall order for a body that only manages to pass a handful of contentious bills in any given year. Many of these programs would likely be terminated, reduced, or consolidated simply because Congress would not be willing or able to get around to voting on them.

Another concern is that the commission could be susceptible to political manipulation because the language that lays out the composition of the commission is vague. The amendment states that the Senate Majority Leader and the Speaker of the House shall each choose four members from their respective chambers. It does not, however, specify that minority members must be included in the selection process, only that no more than two members from each chamber can be from the same party. While in theory this means that Democrats and Republicans would each have four members on the commission, it leaves open the possibility that two members of a nominally different, yet politically aligned, party could join the majority party's members on the commission.

For example, Senate Majority Leader Harry Reid (D-NV) could choose two Democrats and the chamber's two independents, Sens. Bernie Sanders (I-VT) and Joe Lieberman (I-CT), who caucus with the Democrats and regularly vote with them. Under that scenario, the composition of the commission would be six de facto Democrats and two Republicans, giving the Democrats a huge advantage on a powerful commission. That situation could easily be reversed, with House Republicans stacking the commission with hard-core conservatives (assuming a handful of House members become independents and retain their conservative ideologies).

Some also contend that a sunset commission is simply unnecessary. Congress already has the power to reorganize government agencies and programs when it determines the need to do so, and the legislative branch revisits programs' effectiveness and continued existence each year through the oversight and appropriations processes.

Image in teaser by flickr user Jim Dollar, used under a Creative Commons license.