A Federal Sunset Commission: Review of Proposals and Actions

A Federal Sunset Commission: Review of
Proposals and Actions
June 30, 2008
Virginia A. McMurtry
Specialist in American National Government
Government and Finance Division



A Federal Sunset Commission: Review of Proposals
and Current Status
Summary
The sunset concept provides for programs and agencies to terminate
automatically on a periodic basis unless explicitly renewed by law. In the last decade
bills to create a federal sunset commission, modeled on the sunset review process in
Texas, have been introduced in each Congress, including H.R. 5794 in the 110th.
President Bush called for creation of a federal sunset commission in his FY2006
budget submission. Bills reflecting an Office of Management and Budget (OMB)
draft proposal were introduced in the 109th Congress (S. 1399, H.R. 3276, H.R.
3277). On July 20, 2006, the Committee on Government Reform voted to report
H.R. 3282 favorably to the House, along with a related program review bill, H.R.
5766, as amended. Floor action had been scheduled for June 27, 2006, but was
postponed, and no further action occurred on the bills.
In the 110th Congress, with the budget submissions for FY2008 and FY2009,
President George W. Bush reaffirmed his support for passage of the Administration’s
proposal to create a federal sunset commission. In addition to the Brady bill (H.R.
5794), a new sunset measure, S. 1731, was introduced on June 28, 2007, by Senator
John Cornyn. This report examines the three bills and assesses their similarities and
differences with respect to selected factors.
Supporters of sunset commission measures suggest that there are too many
overlapping and ineffective federal programs that contribute to the growing federal
deficit, and that the existing structure of congressional committees does not
encourage systematic review of similar agencies and programs. According to sunset
proponents, congressional reviews of many programs are sporadic and inadequate,
as evidenced by the number of unauthorized appropriations. An action-forcing
mechanism — such as threat of termination — is necessary; a sunset commission
would assist Congress in performing its oversight function, thereby reducing fraud,
waste, and abuse.
Critics of the sunset commission measures counter that such bills would burden
Congress with a tremendous workload for mandatory reauthorization of agencies
and programs. Consequently, such measures may prove infeasible to carry out, or
alternatively, result in perfunctory reviews. Sunset commissions might increase
congressional personnel costs, since additional staff would be needed to assist the
commission in its review activities. Opponents further contend that the review and
reauthorization process would pose a special threat to certain kinds of programs,
such as those which provide a safety net for the most vulnerable in society.
This report will be updated as events warrant.



Contents
Background ......................................................1
Sunset Commission Proposals Prior to the 109th Congress..................3
Developments During the 109th Congress...............................4
Proposals in the FY2006 Budget..................................4
Legislative Proposals and Action .................................5
Developments in the 110th Congress...................................7
Summary of Provisions in H.R. 5794..............................8
Summary of Provisions in S. 1731................................9
Comparing Provisions in Sunset Commission Bills.......................9
Brief Overview of Arguments for and Against Sunset Commissions.........11
List of Tables
Table 1. Selected Features in Three Measures to Establish
a Federal Sunset Commission...................................13



A Federal Sunset Commission: Review of
Proposals and Actions
Background
The sunset concept provides for programs and agencies to terminate
automatically according to a predetermined schedule unless explicitly renewed by
law. Sunset measures usually contain two elements: an action-forcing mechanism,
carrying the ultimate threat of elimination, and a framework or guidelines for the
systematic review and evaluation of past performance.1
In 1976, Colorado became the first state to enact a sunset law. By 1982, sunset
measures had been considered in all 50 state legislatures, and 36 states had enacted
some version of the sunset review process, “representing a remarkably rapid diffusion2
of a state innovation.” However, state experiences proved to be mixed. By 1990,
12 of the 36 states with sunset laws had “ceased the use of this legislative oversight
mechanism because of high monetary and temporal costs of sunset review, intensive
lobbying by vested interests, unfulfilled expectations of agency termination, low
levels of citizen participation, and other perceived problems.” Still, the study stated,
“Results indicate that sunset has resulted in some agency terminations and, more
importantly, numerous substantive, procedural, and crosscutting modifications aimed
at increasing accountability, efficiency, and effectiveness in state agencies.”3
Since 1978, most editions of The Book of the States, compiled by the Council
of State Governments (COSG), have included a table titled “Summary of Sunset
Legislation.” States having a sunset review process are identified by scope of the
framework: C for comprehensive, R for regulatory, S for selective, and D for
discretionary.4 A careful review of the table included in the 2007 edition, derived
from a December 2006 COSG survey, suggests that 24 states have an active sunset


1 For additional background, see CRS Report RL31455, Federal Sunset Proposals:
Developments in the 94th to 107th Congresses, by Virginia A. McMurtry.
2 Richard C. Kearney, “Sunset: A Survey and Analysis of the State Experience,” Public
Administration Review, vol. 50 (Jan./Feb. 1990), p. 49.
3 Ibid.
4 “Discretionary sunset review” might be viewed as an oxymoron, since an action-forcing
mechanism is generally considered as a crucial component of the process. There are also 20
footnotes in the scope column of the table, one of which applies to several states; “footnote
d” reads, “While they have not enacted sunset legislation in the same sense of the other
states with detailed information in this table, the legislatures [in eight states]...have included
sunset clauses in selected programs or legislation.” See Council of State Governments, The
Book of the States, 2007 Edition, vol. 39 (Lexington, KY: 2007), pp. 142-144.

review process.5 The COSG table further indicates that seven states have terminated
or suspended their sunset procedures, while in two of those states sunset-like reviews
continue. Three states have never established a sunset review process.6
The record of the sunset process in Texas is of special interest, both because it
is generally recognized as one of the more active state efforts and because recent
federal legislative proposals borrow from that model. The website of the Texas
advisory commission offers a 70-page Guide to the Texas Sunset Process, noting that
the sunset process in Texas “is guided by a 12-member body appointed by the
Lieutenant Governor and the Speaker of the House of Representatives. Assisting the
Commission is a staff whose reports provide an assessment of an agency’s programs,
giving the Legislature the information needed to draw conclusions about program
necessity and workability.”7 According to the Guide, since the Texas sunset process
began in 1978, 54 agencies have been abolished and another 12 agencies have been
consolidated, for an estimated savings of nearly $784.5 million.8 When reviewing
the accomplishments of sunset in Texas, however, it is well to recall that the Texas
Sunset Advisory Commission, while ultimately saved by its supporters in the Texas
legislature, was nearly abolished in 1993.9
At the federal level, over 70 bills were introduced in the 94th Congress (1975-
1976) proposing various sunset arrangements, and sunset measures have continued
to be introduced in each subsequent Congress. Many hearings have been held on
sunset measures, and several bills have been reported, but the only floor action
occurred in the 95th Congress. On October 11, 1978, the Senate passed S. 2, the
Program Reauthorization and Evaluation Act, by vote of 87-1.10


5 According to data in the table, nine states have comprehensive sunset review (AL, AK, AZ,
DE, FL, LA, OH, TN, UT). Eight states have sunset for regulatory agencies (CO, GA, HI,
IL, KY, MD, MO, and PA). There are 11 states listed with scope as selective, but of the 11,
three are also coded as D or with “footnote d,” and one (IL) is also coded as R, leaving
seven states remaining (CA, CT, IN, ME, NM, TX, and WV).
6 Sunset laws are recorded as terminated in KS, MS, NH, NC, RI, SC, and SD, while some
activity continues in KS and SD. The three states never having had a sunset review process
are IA, MA, and ND.
7 State of Texas, Sunset Advisory Commission, Guide to the Texas Sunset Process, Jan.

2008, p. 1, available at [http://www.sunset.state.tx.us/guide.pdf], visited June 2008.


8 Ibid., p. 11.
9 See David McNeely, “Is the Sun Setting on the Texas Sunset Law?” State Legislatures,
vol. 20, May 1994, pp.17-20, for an account of that debate. This journalist/author covered
politics in Austin for over 30 years.
10 For further discussion of federal sunset proposals, see CRS Report RL31455.

Sunset Commission Proposals Prior
to the 109th Congress
Unlike some of the earlier frameworks proposed for a federal sunset process,
some bills introduced in the last decade have incorporated a commission approach.
In 1997, H.R. 2939 (105th Congress) was introduced by Representative Kevin Brady
of Texas. Modeled on the Texas sunset process, the bill called for establishment of
a 12-member “Federal Agency Sunset Commission,” to review and make
recommendations at least every 12 years regarding the reorganization or abolishment
of each federal agency, with the schedule for review to be determined by the
commission. The Speaker of the House and the majority leader of the Senate were
to appoint the members, each naming four congressional Members and two private
citizens “with experience in the operation and administration of Government
programs.” Each agency was to be abolished within a year of completion of the
commission’s review, unless Congress acted to continue the agency.
In September 1998, the House Subcommittee on Government Management,
Information, and Technology held a hearing on the bill. Representative Brady and
four other Members provided testimony in favor of the bill.11 Arguably the most
serious criticism of the bill raised at the 1998 hearing concerned potential
constitutional problems with the commission framework. An advisory opinion from
the Department of Justice provided for the record referenced the INS v. Chada
decision by the Supreme Court in 1983 (462 U.S. 919), and concluded the following:
Because this bill [H.R. 2939] would allow the abolishment of a statutorily
created executive agency, not through legislation passed in conformity with
Article I, but at the discretion and in accordance with a timetable imposed by a
twelve-member Commission composed of eight members of Congress and four
persons selected by the Speaker of the House and the majority leader, unless
Congress affirmatively decides to adopt legislation preserving the agency, it12
violates the constitutionally required separation of powers.
In 1999, Congressman Brady, along with 92 cosponsors, introduced a revised
bill, H.R. 2128 (106th Congress), a modified version of the sunset commission
legislation containing two noteworthy additions. First, a new subsection was added
under “Review and abolishment of federal agencies” relating to extensions that
would have allowed the deadline for abolishment of the agency, absent congressional
action to reauthorize it, to be extended for an additional two years if approved by a
super-majority of the House and the Senate. Second, a new section was added
providing for compilation by the three congressional support agencies of a “Program
Inventory.” In language reminiscent of federal sunset measures dating back to the

1970s (including S. 2 in the 93rd Congress), the section would have directed the


11 U.S. Congress, House Committee on Government Reform and Oversight, Subcommittee
on Government Management, Information, and Technology, H.R. 2939, Federal Sunset Actthnd
of 1998, hearing before subcommittee, 105 Cong., 2 sess., Sept. 14, 1998 (Washington:
GPO, 1998), pp. 7-37.
12 Letter from William Michael Treanor, Deputy Assistant Attorney General, dated Sept. 21,

1998. See ibid., pp. 53-54. For further discussion of the hearing, see CRS Report RL31455.



Comptroller General of the General Accounting Office (now designated the
Government Accountability Office) and the Director of the Congressional Budget
Office, in cooperation with the Director of the Congressional Research Service, to
prepare an inventory of federal programs within each agency for the purpose of
advising and assisting Congress and the commission in carrying out the requirements
of the act.
On June 28, 2001, Representative Brady reintroduced virtually the same bill,
now called the “Abolishment of Obsolete Agencies and Federal Sunset Act,” in the
107th Congress as H.R. 2373. On April 23, 2002, the House Government Reform
Subcommittee on Civil Service, Census, and Agency Organization held a hearing on
H.R. 2373, at which Texas Representatives Brady and Jim Turner, who had both
served in the Texas legislature, testified in favor of the bill. The witness from the
Office of Management and Budget (OMB) testified in general support of a sunset
review process for the federal government. While acknowledging possible
constitutional issues to be resolved, subsequently detailed in a letter from the Justice
Department,13 the OMB spokesman noted that the sunset commission as outlined in
the legislation was similar to the proposal for a sunset review board that President
Bush endorsed during the 2000 campaign.
In final days of the 107th Congress, a substitute amendment to H.R. 2373 was
circulated for comment, but no formal consideration of it occurred before
adjournment. Congressman Brady introduced a measure virtually identical to H.R.

2373, as H.R. 1227 in the 108th Congress, but the bill received no further action.


Developments During the 109th Congress
Proposals in the FY2006 Budget
In the Analytical Perspectives volume of the President’s budget submission for
FY2006, sent to Congress on February 7, 2005, several budget process reform
proposals were endorsed by the President. Among the actions requested, the
Administration called for establishment of a federal sunset commission
to provide a process by which programs undergo the regular scrutiny brought
about by having to defend their existence. Programs would be reviewed
according to a schedule enacted by Congress. The Commission would consider
proposals to retain, restructure, or terminate programs. Programs would
automatically terminate according to the schedule unless Congress took some14


action to reauthorize them.
13 Daniel J. Bryant, Assistant Attorney General, Department of Justice, letter to Rep. Dave
Weldon, chairman of the House Subcommittee on Civil Service, Census and Agency
Organization, Apr. 23, 2002. Copy provided to author by subcommittee staff.
14 U.S. Office of Management and Budget, Fiscal Year 2006 Analytical Perspectives
(Washington: GPO, 2005), p. 242.

Discussion of reform proposals in the FY2006 budget submission also called for
creation of results commissions, “to consider and revise Administration proposals to
improve the performance of programs or agencies by restructuring or consolidating
them.” Congress would establish a results commission to address a particular
program or policy area where duplicative or overlapping functions are found. If the
President were to approve a commission reform proposal, the measure then would
be considered by Congress under expedited procedures.
Legislative Proposals and Action
In March 2005, during House consideration of H.Con.Res. 95, the FY2006
budget resolution, Representative Hensarling offered a substitute amendment on
behalf of the Republican Study Committee (RSC). Section 503 of the Hensarling
amendment contained a Sense of the House provision that “legislation providing for
the orderly abolishment of obsolete Agencies and providing a federal sunset for
government programs should be enacted during this Congress.”15 Although the
amendment was opposed by the House leadership and defeated by a vote of 102-320,
a Sense of the Senate provision regarding a commission to review the performance
of programs was included in H.Con.Res. 95 as reported from conference and agreed
to by both chambers.16 The Senate language appeared to reflect the results
commission idea more than sunset, although neither type of commission was
explicitly referenced. Provisions for a commission to eliminate waste, fraud, and
abuse, a commission arguably similar to that envisaged in the Sense of the Senate
language, were included in an omnibus budget reform bill, H.R. 2290, the Family
Budget Protection Act of 2005, introduced on May 11, 2005.
On June 30, 2005, OMB released a legislative proposal titled “The Government
Reorganization and Program Performance Improvement Act of 2005,” to create the
framework for the two types of commissions — sunset and results — mentioned in
the FY2006 budget submission. Bills incorporating the draft language were
introduced in both chambers on July 14, 2005. Senator Craig Thomas introduced S.

1399, in most respects mirroring the language in the OMB proposal. In the House,


two bills were introduced. The Government Reorganization and Improvement of
Performance Act, H.R. 3276, introduced by Representative Jon Porter with
Representative Tom Davis and Representative Kevin Brady as cosponsors, would
have authorized the establishment of results commissions. The Federal Agency
Performance Review and Sunset Act, H.R. 3277, introduced by Representative Brady
for himself and Representatives Davis and Porter, would have established a Sunset


15 See Congressional Record, vol. 151, Mar. 17, 2005, daily ed., p. H1639.
16 For further background on the budget resolution, see CRS Report RL32791,
Congressional Budget Actions in 2005, by Bill Heniff Jr. Sec. 502 reads:
It is the sense of the Senate that a commission should be established to review
Federal agencies, and programs within such agencies, including an assessment
of programs on an accrual basis, and legislation to implement those
recommendations, with the express purpose of providing Congress with
recommendations to realign or eliminate Government agencies and programs that
are wasteful, duplicative, inefficient, outdated, irrelevant, or have failed to
accomplish their intended purpose.

Commission (SC) and review process for the federal government. On July 14,
Representative Brady also reintroduced his sunset commission bill as H.R. 3282.
H.R. 3277, unlike H.R. 3282, would have required that the schedule for review and
termination of agencies and programs be enacted into statute, arguably a key factor
in concerns of constitutionality.
Provisions relating to the establishment and functioning of the sunset
commission in H.R. 3277 and in Section 4 of S. 1399 were very similar, but the
structure and language in the two bills were not identical. Both would have
established a federal sunset commission, consisting of seven members, to be
appointed by the President in consultation with congressional leaders. Programs and
agencies were to be reviewed by the commission at least once every 10 years,
according to the schedule for review proposed by the President and enacted into law.
The commission was to be empowered to obtain information from federal agencies,
to hold hearings, and to consider any publicly available evaluations and assessments,
including those by OMB. The bills would have required the commission to use six
stipulated criteria in conducting the reviews, including cost effectiveness and extent
of duplication or conflict with other agencies and programs. The commission would
have provided the President with an annual report containing its assessment of each
agency and program reviewed during the preceding year, along with its
recommendations on how to improve the results achieved and whether to abolish any
agency or program. The President would have then submitted his recommendations
to Congress on the respective agencies and programs, along with the report of the
sunset commission and any draft legislation needed to implement the
recommendations. A program or agency was to be abolished two years after the date
of submission of the President’s recommendation regarding its future unless the
agency or program was reauthorized or received up to a two-year deadline extension
pursuant to law.
The Senate bill differed from the OMB draft and H.R. 3277 with respect to at
least one significant feature. Both the OMB draft and H.R. 3277 contained a
noteworthy exemption with regard to certain regulations and their enforcement: “No
regulations to protect the environment, health, safety, or civil rights shall sunset
under this Act,” nor shall any program relating to enforcing said regulations “sunset
unless provision is made for the continued enforcement of those regulations.”
Provisions for exemptions from sunset termination were not found in S. 1399.
On September 27, 2005, the House Subcommittee on Federal Workforce and
Agency Organization held a hearing on H.R. 3276 and H.R. 3277. Testimony was
received from an OMB official and from five witnesses from the private sector.17
In May 2006, the House leadership announced plans to bring sunset legislation
quickly to the House floor, along with other budget process reforms favored by the
Republican Study Committee, in return for RSC backing of the FY2007 budget


17 U.S. Congress, House Committee on Government Reform and Oversight, Subcommittee
on the Workforce and Agency Organization, It’s Time to React — Reauthorizing Executive
Authority to Consolidate Task: Establishing Results and Sunset Commissions, hearing onthst
H.R. 3276 and H.R. 3277, 109 Cong., 1 sess., Sept. 27, 2005 (Washington: GPO, 2006).

resolution. In the effort to craft a consensus bill, attention came to focus on H.R.

3282 (Brady bill), and on H.R. 2470, sponsored by Representative Todd Tiarht,


which was to create a “Commission on the Accountability and Review of Federal
Agencies (CARFA),” modeled on the Base Realignment and Closure Commission
(BRAC) approach.18 Although it addressed similar concerns to those of a sunset
measure, the CARFA approach did not contain an action-forcing mechanism
whereby agencies and programs would terminate absent congressional action,
whereas H.R. 3282 (and H.R. 3277) did have such provisions.
On July 14, 2006, Representative Tiahrt introduced a revised version of H.R.
2470 as H.R. 5766. On July 19, the House Government Reform Committee held a
hearing on H.R. 3282 and H.R. 5766, receiving testimony in support from
Representatives Brady and Tiahrt, and from two private sector witnesses who
opposed the bills.19 Markup of both bills followed the next day. On July 20, 2006,
H.R. 5766, as amended, was reported favorably by a vote of 15-12, and H.R. 3282,
by a vote of 15-14, both largely along straight party lines.20 Floor action on both bills
had been scheduled for June 27, but House leaders, apparently concerned with
growing opposition, decided to postpone action. No further action occurred in the

109th Congress.


Developments in the 110th Congress
On February 5, 2007, President Bush, in his budget submission for FY2008,
again endorsed creation of a federal sunset commission and called for enactment of
a bill incorporating provisions of the Administration’s proposal sent to Congress in

2005:


The Sunset Commission would consider Presidential proposals to retain,
restructure, or terminate agencies and programs according to a schedule set by
Congress. Agencies and programs would automatically terminate according to21
the schedule unless reauthorized by the Congress.


18 For discussion of CARFA bills, see CRS Report RS21980, Commission on the
Accountability and Review of Federal Agencies (CARFA): A Brief Overview of Legislative
Proposals, by Clinton T. Brass; and CRS Report RL32726, Proposals for a Commission
on the Accountability and Review of Federal Agencies (CARFA): Analysis and Issues for
Congress, by Clinton T. Brass.
19 Witnesses included James Horney from the Center on Budget and Policy Priorities and
Charles Loveless from AFSCME. See U.S. Congress, House Committee on Government
Reform, Cutting Out the Waste: An Overview of H.R. 5766, the Government Efficiency Act;th
and H.R. 3282, the Abolishment of Obsolete Agencies and Federal Sunset Act of 2005, 109nd
Cong., 2 sess., July 16, 2006 (Washington: GPO, 2006).
20 All Democrats voted against both bills. One Republican voted with the minority on each
bill: Rep. Chris Shays on H.R. 5766, and Rep. Todd Platts on H.R. 3282. For further
discussion of the bills and markup, see Ralph Lindeman, “Sunset Bills Move Through
Committee With Floor Vote in the House Set for July 27,” Daily Report for Executives, July

21, 2006, p. A-22.


21 U.S. Office of Management and Budget, Fiscal Year 2008 Analytical Perspectives
(continued...)

Support for results commissions (RC) was also reiterated: “Results Commissions
would consider and revise Administration proposals to restructure or consolidate
programs or agencies to improve their performance.”22
In the budget submission for FY2009 transmitted on February 4, 2008, President
Bush reaffirmed his support for a federal sunset commission. In reviewing the need
for such a structure, the discussion in one of the budget documents stated the
following:
The Federal Government’s ability to serve the American people is often
hampered by poorly designed programs or uncoordinated, overlapping programs
trying to achieve the same objective. Today, almost 25 percent of assessed
programs on which the Government spends almost $150 billion a year have been
determined to be either ineffective or unable to demonstrate results.23
In the 110th Congress, Senator John Cornyn introduced a new sunset measure,
S. 1731, the United States Authorization and Sunset Commission Act, on June 28,

2007. Congressman Brady introduced H.R. 5794, a bill virtually identical to H.R.th


3282 (109 Congress), renamed the Federal Sunset Review Act of 2008, on April 15,


2008.


Summary of Provisions in H.R. 5794
H.R. 5794 would create a Federal Agency Sunset Commission (FASC) to
review the efficiency of and public need for federal agencies and would provide for
the abolishment of agencies for which a public need does not exist. The FASC would
consist of 12 members appointed by the Speaker of the House and the Senate
majority leader. Of the six members appointed by the leaders of the respective
chambers, four would be Members of Congress, with not more than two from the
same political party. Within one year after its establishment, the commission would
submit to Congress a schedule for the review of all federal agencies and advisory
committees by the commission, at least once every 12 years, and for the abolishment
of each agency following the review absent congressional reauthorization. Agencies
performing similar or related functions would be scheduled for review at the same
time. Then the commission would commence its annual reviews, utilizing the 19
criteria specified in the bill in reviewing and evaluating the efficiency and public
need for each agency.
By September 1 of each subsequent year, the commission would report to the
President and Congress, and recommend whether each agency reviewed that year
should be abolished or reorganized and whether functions of other agencies should
be consolidated, transferred, or reorganized. The FASC would also submit draft
legislation to carry out the recommendations.


21 (...continued)
(Washington: GPO, 2007), p. 220.
22 Ibid.
23 U.S. Office of Management and Budget, Fiscal Year 2009 Analytical Perspectives
(Washington: GPO, 2008), p. 225.

Under the sunset provisions in the bill, an agency would be abolished within one
year of the commission’s review, unless the agency received statutory extension. The
bill would allow the deadline for abolishing an agency to be extended for an
additional two years by legislation enacted by a super majority of the House of
Representatives and the Senate. The commission also would report to Congress on
all legislation introduced that would establish a new agency or a new program to be
carried out by an existing agency.
H.R. 5794 would direct the Comptroller General of the Government
Accountability Office and the Director of the Congressional Budget Office, in
cooperation with the Director of the Congressional Research Service, to prepare an
inventory of federal programs within each agency for the purpose of advising and
assisting Congress and the commission in carrying out the requirements of the act.
Summary of Provisions in S. 1731
S. 1731 would create the United States Authorization and Sunset Commission
(USASC), with membership consisting of four Representatives and four Senators,
appointed by the Speaker of the House and the Senate majority leader, respectively,
with no more than two from each chamber of the same political party.
The bill would require the USASC to submit to Congress, not later than 18
months after this act’s enactment and at least once every 10 years thereafter, a
legislative proposal (referred to as the Commission Schedule and Review bill) that
would include a schedule of review and abolishment of agencies and programs. The
bill would require that the schedule contain a time line for review by the USASC and
proposed abolishment of (1) at least 25% (as measured in dollars) of unauthorized
agencies or programs; and (2) if applicable, at least 25% of the programs identified
by the Office of Management and Budget (OMB) through its Program Assessment
Rating Tool program (or similar review program) as ineffective or results not
demonstrated. The bill would require that agencies performing similar or related
functions be reviewed concurrently.
S. 1731 sets forth criteria that would be used by the USASC in conducting its
reviews. The bill would require the USASC to submit to Congress and the President
every two years a report that analyzes and includes, as appropriate, proposals and
legislative provisions to reauthorize, reorganize, consolidate, expand, or transfer any
agency or program having undergone its scheduled review. Both the schedule and
review bill and legislative proposals accompanying reports from the USASC would
be subject to expedited procedures during their consideration by Congress.
Comparing Provisions in Sunset Commission Bills
Table 1 provides an overview of selected features in the two sunset commission
bills which have been introduced in the 110th Congress, S. 1731 and H.R. 5794, and
in the legislative proposal in 2005 from the Bush Administration for federal sunset
commissions, introduced as H.R. 3277 in the 109th Congress. The following
discussion highlights some similarities and differences among the measures.



The bills are similar with respect to scope of coverage. The two bills in the
110th Congress refer to the definition of federal agency in 5 U.S.C. 105. In all three
bills, however, the actual coverage would be dependent upon decisions taken
subsequent to enactment. H.R. 3277 (109th Congress) provides that all programs and
agencies would be reviewed at least once every 10 years, but the President would
propose the coverage, contingent on approval by Congress. In H.R. 5794 and S.

1731, the sunset commission would submit to Congress the schedule for review.


With respect to membership, under the Administration proposal, the President
would appoint the seven members, four in consultation with congressional leaders.
H.R. 5794 provides for a 12-member bipartisan commission, with six named,
respectively, by the Speaker of the House and the Senate majority leader; eight
members concurrently would be serving in Congress, to be joined by four from
outside. Eight Members of Congress would make up the entire membership of the
bipartisan commission to be established pursuant to S. 1731.
All three bills call for the commission chair to appoint a staff director. S. 1731
would have the chair appoint other personnel as needed, whereas the other two bills
would delegate appointment of other staff to the director. With regard to
administrative support, the two House bills would have the General Services
Administration (GSA) provide such services to the commission on a reimbursable
basis. In contrast, S. 1731 would authorize the commission to receive administrative
support services from GSA or GAO on a nonreimbursable basis.
All three bills contain action-forcing mechanisms to terminate programs and
agencies following the sunset reviews, unless reauthorized in law. H.R. 3277 would
terminate programs and agencies two years after the date of submission to Congress
by the President of recommendations, along with the report of the commission, while
provisions in H.R. 5794 would abolish an agency within one year of the
commission’s review, absent statutory extension. Both House bills would allow for
enactment of legislation extending the deadline for abolishing an agency for an
additional two years. S. 1731 would abolish any agency or program two years after
the commission completes its review absent reauthorization.
The three bills each specify criteria to utilize in carrying out the program
reviews. H.R. 5794 arguably contains the strongest provisions for transparency and
public involvement in the sunset reviews. With respect to information gathering
H.R. 5794 requires that the FASC shall conduct public hearings and provide an
opportunity for public comment on the abolishment of the agency. The FASC also
shall also consult with the chairman and ranking minority member of the
congressional oversight committees, as well as GAO and OMB. The Administration
bill provides that the Sunset Commission (SC) should hold public hearings and
meetings “to the extent appropriate, “ and consult with GAO, relevant Inspectors
General, and the relevant committees in Congress. There is no reference to public
hearings or public comment in S. 1731; the bill simply provides that the USASC, in
carrying out the provisions of the act, may hold hearings, take testimony, and receive
evidence.
Table 1 shows two other instances where certain features are found in two of
the bills, but not the third. H.R. 3277 (109th Congress) and S. 1731 provide



expedited procedures for congressional action on the review schedule, and in S. 1731
the expedited procedures would apply as well to the Commission Schedule and
Review bill and other legislative proposals submitted to Congress by the USASC.
No expedited procedures are included in H.R. 5794. On the other hand, H.R. 3277
and H.R. 5794 both contain provisions for compilation of a program inventory by the
legislative support agencies, whereas S. 1731 does not call for a program inventory.
All of the bills authorize appropriation of funds to carry out the duties of the
respective commissions. H.R. 3277 (109th Congress) and S. 1731 contain typical
“such sums as may be necessary” language for authorizations, while H.R. 5794
would require that amounts appropriated for commission operations be offset by
reductions in spending for other programs. Finally, all three bills include sunset
provisions for the commission itself. Under H.R. 3277 (109th Congress), the
commission would terminate on December 31, 2026; under H.R. 5794, on December

31, 2033; and under S. 1731, on December 31, 2037.


Brief Overview of Arguments for and Against
Sunset Commissions
Supporters of sunset commission measures suggest that there are too many
overlapping and ineffective federal programs that contribute to the growing federal
deficit, and that the existing structure of congressional committees does not
encourage systematic review of similar agencies and programs. According to sunset
proponents, congressional reviews of many programs are sporadic and inadequate,
as evidenced by the number of unauthorized appropriations. An action-forcing
mechanism — such as threat of termination — is necessary; a sunset commission
would assist Congress in performing its oversight function, thereby reducing fraud,
waste, and abuse. President Bush has alluded to some of these factors in support of
a sunset commission in his recent budget submissions.
Advocates of a federal sunset commission sometimes contend that the viability
and usefulness of sunset commissions has been demonstrated in states such as Texas.
In his remarks accompanying the introduction of S. 1731, Senator Cornyn stated the
following:
The bill is modeled after the sunset process that the State of Texas instituted in
1977 to identify and eliminate waste, duplication, and inefficiency in government
agencies. This process has led to the elimination of dozens of agencies that have
outlived their usefulness and has saved Texas taxpayers hundreds of millions of24
dollars.
Some figures regarding the outcome of sunset reviews in Texas have already
been noted. With respect to the fiscal impact of commission recommendations, the
Texas Sunset Advisory Commission has reported, “Estimates from reviews
conducted between 1982 and 2007 indicate a potential 25-year savings of


24 Sen. John Cornyn, remarks accompanying the introduction of S. 1731, Congressional
Record, daily edition, vol. 154 (June 28, 2007), p. S8703.

approximately $784.5 million, compared with expenditures of $24.9 million for the
Sunset Commission.” From these estimates one may infer that Texas has earned
more than $31 in return for each dollar spent on the sunset process.25
Critics of the sunset commission measures counter that such bills would burden
Congress with a tremendous workload for mandatory reauthorization of agencies and
programs and might prove infeasible to carry out, or alternatively, result in
perfunctory reviews. A sunset commission might increase congressional personnel
costs, since additional staff would be needed to assist the commission in its review
activities. Opponents of sunset commissions also contend that the review and
reauthorization process would pose a special threat to programs serving diffuse and
unorganized constituencies; federal programs providing a safety net for the most
vulnerable in society might be especially endangered.
Some disapproving of a federal sunset commission further note that a key
feature of the sunset process is that programs and agencies would terminate after the
submission of the commission’s report and recommendations to Congress, unless
they receive statutory extensions. This means that following congressional approval
of a reauthorization bill, the measure would have to go to the President in order to be
signed into law. If the President were to veto the bill, a two-thirds majority in both
chambers would be necessary to override the veto and extend the life of the program
or agency. The possibility of a popular program or agency being eliminated by a
President, with the support of one third of the House and Senate, arguably would
represent a significant transfer of power from Congress to the executive branch.


25 Sunset Advisory Commission, Guide to the Texas Sunset Process, Jan. 2008, p. 11.

CRS-13
Table 1. Selected Features in Three Measures to Establish a Federal Sunset Commission
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
f billFederal Agency Performance Review andFederal Sunset Act of 2008United States Authorization and Sunset Act of
Sunset Act2007
roductionDraft proposal prepared by the Office ofApril 15, 2008, by Rep. Kevin Brady.June 28, 2007, by Sen. John Cornyn.
Management and Budget and forwarded to
Congress. Introduced on July 14, 2005, by
Rep. Kevin Brady.
ed purpose(s)Improve performance of executive branch byTo provide for the periodic review of theTo provide for the continuing review of
iki/CRS-RL34551ascertaining whether programs work or notand addressing deficiencies in existingefficiency and public need for federalagencies, to establish a commission for theunauthorized federal programs and agenciesand to establish a bipartisan commission for
g/wprograms, eliminating duplication of effort,purpose of reviewing the efficiency andthe purpose of improving oversight and
s.orand abolishing agencies and programs that dopublic need of such agencies, and to provideeliminating wasteful government spending.
leaknot work.for the abolishment of agencies for which
public need does not exist.
://wiki
http coverageAll federal agencies and programs asAll federal agencies as defined in 5 U.S.C.Any federal agency as defined in 5 U.S.C.
proposed by the President and approved by105, plus federal advisory committees. 105 and designated for review by the sunset
Congress.Actual coverage dependent upon enactmentcommission.


of review schedule.

CRS-14
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
blishment, leadership,Sunset Commission (SC) established, withFederal Agency Sunset Commission (FASC)United States Authorization and Sunset
eetingsmeetings to be held at call of the chair.established, with meetings to be held at call ofCommission (USASC)
the chairman. Speaker of the House toestablished, with meetings to be held at call of
designate initial chairman to serve for twothe chairperson or a majority of members.
years; initial vice chairman to be designatedSpeaker of the House to designate initial
by the majority leader of the Senate. Thenchairman to serve for two years; initial vice
alternate appointments of chairman and vicechairman to be designated by the majority
chairman.leader of the Senate. Then alternate
Members of Congress to serve six years,appointments of chairman and vice chairman.
outside commission members to serve forMembers usually to serve six years.
three years.Provision for an initial organization meeting
if after 90 days at least five members have
iki/CRS-RL34551been appointed.
g/w
s.ormbership Seven members appointed by and to serve atTwelve members, to be appointed not laterEight members of Congress to be appointed
leakpleasure of President, to be appointed withinthan 90 days after enactment. Six commissionnot later than 90 days after enactment. Four
180 days following enactment of act. Eachmembers shall be appointed by the Speaker ofcommission members shall be appointed by
://wikimember’s term not to exceed three yearsthe House, four of whom shall be Membersthe Speaker of the House, no more than two
httpunless reappointed. One member each to benamed, in consultation, respectively, with theand only two of whom may be of the samepolitical party; minority members appointedof whom may be of the same political party;minority members appointed with consent of
Senate majority leader, Senate minoritywith consent of minority leader. Sixminority leader. Four commission members
leader, Speaker of the House, and Housecommission members shall be appointed byshall be appointed by the majority leader of
minority leader; other three appointmentsthe majority leader of the Senate, four ofthe Senate, no more than two of whom may
unrestricted. Chair and vice chair to be namedwhom shall be Members and only two ofbe of the same political party; minority
by President. whom may be of the same political party;members appointed with consent of minority
minority members appointed with consent ofleader. The director of the Congressional
minority leader. Budget Office (CBO) and the Comptroller
Outside members appointed to theGeneral of the Government Accountability
commission are to have expertise in theOffice (GAO) shall be non-voting ex officio
operation and administration of governmentmembers.


programs.

CRS-15
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
wers of commissionSC may hold hearings; obtain directly fromFASC may hold hearings; obtain informationUSASC may hold hearings; obtain
executive branch bodies relevant information,from federal agencies; issue subpoenas forinformation from federal agencies; issue
suggestions, estimates, and statistics. RC alsotestimony and evidentiary materials. FASCsubpoenas for testimony and evidentiary
may contract with government and privatemay contract with government and privatematerials. FASC may contract with
agencies or persons for services.agencies and persons for services and maygovernment and private agencies and persons
Authorizes detail of federal employees topromulgate such rules as necessary to carryfor services. Authorizes detail of federal
commission.out this act. employees to commission.
inistrative provisionsCommission chair may appoint and terminateCommission chair to appoint a director;Commission chair to appoint a staff director
a director; director may appoint staff. director may appoint staff. Provisions for useand other personnel as needed. Provisions for
Provisions for use of postal and printingof postal and printing services and for use of postal services and for administrative
services and for administrative supportadministrative support services from thesupport services from the General Services
iki/CRS-RL34551services from the Administrator of GeneralAdministrator of General Services on aAdministration on a nonreimbursable basis.
g/wServices on a reimbursable basis. reimbursable basis.Other administrative support services,
s.orincluding funds, facilities, and staff,
leakauthorized on a nonreimbursable basis from
GAO.


://wiki
http

CRS-16
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
e for review processAll programs and agencies to be reviewed atNot later than one year after date ofNot later than 18 months after enactment of
least once every 10 years. Review scheduleenactment of this act, FASC shall submit tothis act and at least once every 10 years
to be proposed by the President and approvedCongress a schedule for review by thethereafter, USASC shall submit to Congress a
by Congress, with program inventorycommission, at least once every 12 years (orlegislative proposal (called the Commission
compiled by CRS being advisory, notless, if determined appropriate by Congress),Schedule and Review bill) that includes a
binding.of the abolishment or reorganization of eachschedule providing a timeline for review and
agency. Review schedule to provide thatproposed abolishment of (1) at least 25% (in
agencies that perform similar or relateddollars) of unauthorized agencies or
functions be reviewed concurrently.programs; and (2) if applicable, at least 25%
(in dollars) of the programs identified by the
Office of Management and Budget through its
Program Assessment Rating Tool program or
iki/CRS-RL34551other similar OMB review program as
g/wineffective or results not demonstrated.
s.orTimeline to provide for concurrent review of
leakagencies that perform similar or related
func t i o ns.
://wiki
http(s) and process forogram review.Commission to review programs andagencies, according to the schedule for reviewFASC shall review the efficiency and publicneed for each agency as scheduled.USASC shall review each agency andprogram identified in the schedule and review
enacted into law. Commission may considerbill (such proposal described immediately
any publicly available agency or programabove).


evaluations and assessments, including those
that the Office of Management and Budget
(OMB) has undertaken in consultation with
the affected agencies.

CRS-17
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
ds/criteria forCriteria for review:Criteria for review:Criteria for review as applicable:
s(1) Whether the agency or program as carried(1) The effectiveness, and the efficiency of(1) The effectiveness and efficiency of the
out by the agency is cost-effective andthe operation of, the programs carried out byprogram or agency;
achieves its stated purpose or goals;each such agency;(2) The achievement of performance goals (as
(2) Extent to which any trends, developments,(2) Whether the programs carried out by theidentified in 31 U.S.C. 1115(g)(4);
or emerging conditions affect the need toagency are cost-effective;(3)The management of the financial and
change the mission of the agency or program(3) Whether the agency has acted outside thepersonnel issues of the program or agency;
or the way that the commission or program isscope of its original authority, and whether(4) Whether the program or agency has
being carried out by the agency;the original objectives of the agency havefulfilled the legislative intent surrounding its
(3) Extent to which the agency or programbeen achieved;creation, taking into account any change in
duplicates or conflicts with other federal(4) Whether less restrictive or alternativelegislative intent during its existence;
agencies, state and local government, or themethods exist to carry out the functions of the(5) Ways the agency or program could be less
iki/CRS-RL34551private sector;agency;burdensome but still efficient in protecting the
g/w(4) Extent to which the agency coordinates(5) The extent to which the jurisdiction of,public;
s.oreffectively with state and local governmentsand the programs administered by, the agency(6) Whether reorganization, consolidation,
leakin performing the functions of the program;duplicate or conflict with the jurisdiction andabolishment, expansion, or transfer of
(5) Extent to which changes in the authorizingprograms of other agencies;agencies or programs would better enable the
://wikistatues of the agency or program would(6) The potential benefits of consolidatingfederal government to accomplish its missions
httpimprove the performance of the agency orprograms administered by the agency withand goals;
program;similar or duplicative programs of other(7) Promptness and effectiveness of an
(6) Extent to which changes in theagencies, and the potential for consolidatingagency in handling FOIA complaints and
management structure of the agency orsuch programs;requests;
program or its placement in the executive(7) The number and types of beneficiaries or(8) The extent that the agency encourages and
branch are needed to improve the overallpersons served by programs carried out by theuses public participation when making rules
efficiency, effectiveness, or accountability ofagency;and decisions;
executive branch operations.(8) The extent to which any trends,(9) Agencys record in complying with
developments, and emerging conditions thatrequirements for equal employment
are likely to affect the future nature and extentopportunity, rights and privacy of individuals,
of the problems or needs that the programsand purchasing products from historically
carried out by the agency are intended tounderutilized businesses;


address;

CRS-18
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
ds/criteria for(9) The extent to which the agency has(10) Extent to which the program or agency
s, cont.complied with the provisions contained in theduplicates or conflicts with other federal
Government Performance and Results Act ofagencies, state, or local government, or the
1993 (Public Law 103-62; 107 Stat. 285);private sector and if consolidation or
(10) The promptness and effectiveness withstreamlining into a single agency or program.


which the agency seeks public input and input
from state and local governments on the
efficiency and effectiveness of the
performance of the functions of the agency;
(11) Whether the agency has worked to enact
changes in the law that are intended to benefit
the public as a whole rather than the specific
iki/CRS-RL34551business, institution, or individuals that the
g/wagency regulates;
s.or(12) The extent to which the agency has
leakencouraged participation by the public as a
whole in making its rules and decisions rather
://wikithan encouraging participation solely by those
httpit regulates;
(13) The extent to which the public
participation in rulemaking and
decisionmaking of the agency has resulted in
rules and decisions compatible with the
objectives of the agency;
(14) The extent to which the agency complies
with section 552 of Title 5, United States
Code (commonly known as the “Freedom of
Information Act);
(15) The extent to which the agency complies
with equal employment opportunity
requirements regarding equal employment
opportunity.
(16) The extent of the regulatory, privacy, and

CRS-19
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
ds/criteria for employment opportunity requirements.
s, cont.(16) The extent of the regulatory, privacy, and
paperwork impacts of the programs carried
out by the agency;
(17) The extent to which the agency has
coordinated with state and local governments
in performing the functions of the agency;
(18) The potential effects of abolishing the
agency on state and local governments;
(19) The extent to which changes are
necessary in the authorizing statutes of the
agency in order that the functions of the
agency can be performed in the most efficient
iki/CRS-RL34551and effective manner.
g/w
s.oransparency and publicSC to hold public hearings and meetings toFASC shall conduct public hearings on theNo reference to FACA or requirement for
leakrticipationthe extent appropriate, but is not subject toabolishment of each agency reviewed,public hearings with respect to the operations
Federal Advisory Committee Act (FACA)provide an opportunity for public comment,of the USASC.
://wikiprovisions. Before recommending therequire the agency to provide information toCriteria for review, however, include whether
httpabolishment of any agency or program, SCshould, as it considers appropriate:the commission as appropriate. FASC shallconsult with GAO, OMB, Comptrollerthe agency encourages and uses publicparticipation when making rules and
(1) conduct public hearings; General, and the chairman and rankingdecisions.


(2) provide an opportunity for publicminority members of the committees of
comment;,Congress with oversight responsibility
(3) offer the affected agency opportunity toregarding the operation of the agency.
comment;
(4) review assessments previously used,
including those from from OMB; and
(5) consult with GAO, the relevant inspectors
general, and the relevant congressional
committees.

CRS-20
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
ting of Sunset commission shall submit to theFASC to submit to Congress and theUSASC to submit to the President and
mendationsPresident by August 1 an annual reportPresident each year by September 1 a reportCongress no later than two years after
containing its assessment of each agency andcontaining:enactment:
program reviewed during the preceding year,(1) analysis of the efficiency of operation and(1) a report that reviews and analyzes
along with its recommendations on how topublic need for each agency being reviewedaccording to the stipulated criteria each
improve the results that each agency andthat year;agency and program scheduled for review in
program achieves and whether to abolish any(2) recommendations on whether each agencythe year in which the report is submitted;
agency or program. Commission shall submitshould be abolished or reorganized;(2) a proposal, if appropriate, to reauthorize,
with report draft of any proposed legislation(3) recommendations on whether thereorganize, consolidate, expand, or transfer
needed to carry out its recommendations.functions of any other agencies should bethe federal programs and agencies to be
consolidated, transferred, or reorganized in anreviewed that year;
agency being reviewed;(3) legislative provisions necessary to
(4) recommendations for administrative andimplement the USASCs proposal and
iki/CRS-RL34551legislative action regarding reviewed agency,recommendations.
g/wbut not including recommendations forThe USASC shall submit to Congress and the
s.orappropriation levels.President additional reports (as prescribed
leakFASC to review and report to Congress on allabove) by June 30 of every other year.
legislation introduced in either house ofThe Commission Schedule and Review bill
://wikiCongress that would establish a new agency(establishing the timetable) and all other
httpor a new program to be carried out by anlegislative proposals and reports submitted by
existing agency.the USASC shall require approval by at least
five members.
ted procedures forExpedited procedures apply to congressional None included.Expedited procedures apply to the
essional actionreview of Presidents proposed schedule forCommission Schedule and Review bill and
review of agencies and programs.any other legislative proposal with provisions
submitted to Congress by the USASC.



CRS-21
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
ion forcing mechanismPrograms and agencies to terminate two yearsEach agency shall be abolished not later thanThe Commission Schedule and Review bill
after date that the President submits theone year after the date the commissionshall provide for the abolishment of any
recommendations to Congress, along with thecompletes its review of the agency, unless theagency or program two years after the date
report of the Sunset Commission, unless theagency is reauthorized by the Congress.the commission completes its review of the
agency or program is reauthorized by law. Enactment of law by super majority in eachagency or program, unless the agency or
Enactment of law may extend deadline forchamber may extend deadline for abolishmentprogram is reauthorized by Congress.
abolishment for two additional years.for two additional years.
Exemp tio n:
No regulations to protect the environment,
health, safely, or civil rights shall sunset
under this act, nor shall any program related
to enforcing said regulations sunset unless
provision is made for the continued
iki/CRS-RL34551enforcement of those regulations.
g/w
s.orovisions forThe President may submit to Congress draftAlong with annual report due by September 1,Along with its biennial reports, the USASC
leaklementation legislation needed to accomplish theFASC to submit to Congress and theshall submit to Congress any legislative
recommendations of the Sunset CommissionPresident draft legislation to carry out itsprovisions necessary to implement the
://wikiwith any revisions the President thinksrecommendations. USASCs proposal and recommendations;
httpnecessary to improve the performance of theassessed agencies or programs.The commission shall monitorimplementation of laws containing provisionsand, if appropriate, a proposal to reauthorize,reorganize, consolidate, expand, or transfer
that incorporate prior recommendations withthe federal programs and agencies scheduled
respect to abolishment or reorganization ofto be reviewed that year.
agencies.
et provision forSunset commission to terminate on DecemberFASC to terminate on December 31, 2033,USASC to terminate on December 31, 2037.
mmission31, 2026, unless reauthorized in law byunless reauthorized by Congress.
Co ngr e ss.
horization ofSuch sums as may be necessary authorizedAmounts appropriated to carry out this act toSuch sums as may be necessary are
opriationsto be appropriated for the purposes ofbe offset by a reduction in appropriations forauthorized to be appropriated for the purposes
carrying out the duties of USASC. Suchother federal programs.of carrying out the duties of USASC.


funds to remain available until expended.

CRS-22
atureH.R. 3277 (109th)H.R. 5794 (110th) S. 1731 (110th)
ogram inventoryWithin six months of enactment of this act,Directs the Comptroller General and theNot included.


directs the Director of the CongressionalDirector of the Congressional Budget Office
Research Service, with the assistance of the(CBO), in cooperation with the Director of
Comptroller General, to prepare an inventorythe Congressional Research Service, to
of all executive branch agencies and programsprepare an inventory of federal programs
to assist the President and Congress in theirwithin each agency for the purpose of
duties under act. Section pertaining to anadvising and assisting Congress and the
agency or program shall be updated six commission in carrying out the requirements
months prior to its scheduled reviews by theof this act. Content requirements for the
commission. Inventory to include, for eachinventory specified, including data to be
agency and program, a list of citations of allprovided by CBO.
authorizing statutes of the agency or program.
iki/CRS-RL34551
g/w
s.or
leak
://wiki
http