The White House finally released last week its proposal for legislation granting the Bush administration wide-ranging powers to restructure government programs and force them to plead for their lives every 10 years. Called the Government Reorganization and Program Performance Improvement Act, the proposal is only the latest effort to give the White House sweeping powers to reshape federal government programs. Two bills are already pending in Congress that, like part of the White House proposal, would establish a commission charged with developing government restructuring proposals, and earlier reports suggested that Sen. Sam Brownback (R-KA) and Rep. Kevin Brady (R-TX) could be collaborating on a proposal to fuse their interests in restructuring authority and programmatic sunsets. Rep. Tom Davis (R-VA) has been on record that giving the White House fast-track reorganization authority would be a priority this term, and current speculation is that he will be a backer of the White House proposal. About the White House Proposal There are three working parts of the proposal:

1. results commissions, for restructuring government;
2. sunset commissions, forcing agencies to plead for their lives every 10 years; and
3. fast-tracking commission decisions in Congress.

Results Commission The results commission section gives the White House the power to empanel one or more results commissions that would be charged with reviewing a White House proposal for restructuring, realigning, and consolidating government programs. The call for a commission would have to be authorized by statute, and the White House would “consult with” the minority and majority leaders of both chambers for commissioners. The commission would be free to deviate from the White House’s original plan when devising its own suggestions, but only when “such changes are necessary to better accomplish the stated purpose of the President’s reorganization proposal.” The criteria for the results commission are quite broad: program areas in which multiple federal programs have “similar, related, or overlapping responsibilities” under the jurisdiction of multiple executive branch agencies and committees of Congress, and program areas in which reorganization may “improve the overall effectiveness, efficiency, or accountability of Executive Branch operations.” The White House’s announcement in the FY06 budget submission that this proposal was under development suggested that the results commissions would base their decisions on performance data, of the sort produced by the White House Program Assessment Rating Tool. Two pending bills that would establish similar restructuring commissions do, in fact, explicitly base commission decisions on performance data—which, as we have discussed elsewhere, amount to politically manipulable rhetoric rather than neutral information. When the results commission returns its proposal, the White House would then have the option to endorse or reject the commission’s proposal. If the White House approves of a result commission proposal to restructure programs, it would then forward the proposal to Congress, where it would be fast-tracked for approval. Sunset Commission The sunset commission would be a standing body before which programs would be forced to plead for their lives every ten years based on the following criteria:

• cost-effectiveness and achievement of stated purposes or goals;
• whether there is still a need for the program at all or for the program in its current form;
• whether the program duplicates or conflicts with other programs or the private sector;
• whether statutory changes would improve program performance; and
• whether the program would benefit, in general, from reorganization in the executive branch.

Programs would automatically expire two years after the White House submitted a sunset commission report to Congress, unless Congress affirmatively reauthorizes the program or stays its demise for an additional two years. Note that the two-year expiration applies whether or not the sunset commission proposal is positive. The proposal adds that any program “related to enforcing” health, safety, civil rights, or environmental regulations would be excluded from automatic sunsets “unless provision is made for the continued enforcement of those regulations.” It does not, however, require that any such “provision … made” for continued enforcement be at the same level of funding or committed resources as the expiring program, and it does not mention programs not related to enforcement per se—such as research programs that close existing data gaps—that are still vital for sound regulatory policy. Fast-Track In each case, there is some provision for fast-tracking decisions through Congress—whether results commission proposals or the schedule for sunset commissions to review programs. The fast-track process constrains committee review and floor debate with a tight timeframe. Resolutions of approval of results commission proposals or of the sunset commission’s schedule cannot be amended and are not subject to points of order. The final caveat is that the fast-track limitations are considered rules changes, subject to later rules changes as the chambers see fit. Problems There is no need for it. Congress already has the power to reorganize government programs when it determines the need to do so. Congress creates the agencies by statute in the first instance, and it revisits their effectiveness and continued existence each year through the budget process. The White House’s proposal would usurp power from Congress by entrusting unelected commissions with important decisions about the structure and function of all government services. The creation of the Department of Homeland Security is a case in point. The White House proposed realigning a number of programs in different cabinet departments into a new cabinet-level department, and Congress followed up in record time. Congress can therefore move quickly when demonstrated need or political exigencies demand swift action. Congress should nonetheless retain the option to proceed more deliberately when White House proposals would have the effect of weakening public protections or needed services. It would muzzle Congress when careful discussion is needed most. Decisions about the structure, function, and very existence of government services are too important to be ripped from the representatives who have been democratically elected to make them. Decisions this crucial — about the government’s priorities on issues such as health care, retirement security, environmental protection, and even homeland security and defense — deserve the full debate and consideration of elected bodies. The proposal gives the White House the power to ram its proposals through Congress and imposes such severe limitations on debate that it would effectively muzzle our elected representatives from speaking on these vital issues. It would decrease agency effectiveness. Agencies would be distracted from their missions of protecting the public by defending themselves against extinction or being restructured into irrelevance. Agencies would be required to comply with requests from sunset and results commissions for data and any other information the unelected commissions demand — even information the agencies would have to create or obtain from scratch. The result is agency staff would be forced to divert time, energy, and resources that should be devoted to their congressionally-mandated missions of protecting the public interest. Imposing yet more analytical requirements will induce paralysis by analysis. Meanwhile, key battles that were fought and won in the past over civil rights, human services, and more would have to be fought again and again every 10 years. It leaves room for bias. Both the sunset and results commission would be exempted from the open government and balance requirements of the Federal Advisory Committee Act. The commissions could therefore be packed with industry lobbyists and representatives from industry-funded anti-regulatory think tanks, and they could conduct their business—about important issues of the structure and function of government services—in secrecy. There are provisions in the White House proposal for public hearings and other forms of stakeholder participation, but those provisions are merely optional. It puts the public interest at risk. The key provision that exempts programs responsible for enforcing public interest regulation from sunsets does not make this proposal any less a threat to the public interest. First, the exemption applies only to sunsets; key agencies are still vulnerable to being restructured into irrelevance. Second, the exemption addresses only programs related to enforcement of regulations; it does not address programs within agencies that conduct needed scientific research or that develop new protective standards. Finally, this proposal is only the first of many steps to come. Conservatives have vowed to produce regulatory sunset legislation that would apply to individual regulations, and press reports suggest that planned budget process reforms would sunset entitlement programs such as Medicaid and foster care for abused and neglected children.