2015] PIVOTAL POLITICS OF TEMPORARY LEGISLATION 1057
existing literature by providing a theoretical and empirical framework for
exploring that uncertainty.2
This framework relies on two key empirical findings in the political
science literature. First, there are a number of key legislators (including the
60th senator,3 the President, and the median member of the House majority)
whose preferences are particularly important in determining whether
legislation will be enacted.4 Second, the tools of modern political science
allow us to meaningfully compare legislators across Congresses.5 The intuition
is that the renewal of temporary legislation can be explored by combining
information regarding how legislators voted when the temporary legislation
was originally enacted and how key legislators have changed in the interim.
For those legislators who were not in Congress when the temporary legislation
was originally enacted, we can predict how they will likely vote on renewal by
reference to how their colleagues voted in the past.
This Article makes two primary contributions. First, it models the renewal
process to yield the key insight that renewal does not depend on the
temporary policy itself. Rather, renewal depends on the underlying
permanent policy and its acceptability to certain key legislative actors.6 Thus,
2. The extant literature focuses on the relative desirability of permanent and temporary
legislation without engaging in this inquiry. For leading articles, see generally Jacob E. Gersen,
Temporary Legislation, 74 U. CHI. L. REV. 247 (2007); Rebecca M. Kysar, Lasting Legislation, 159 U.
PA. L. REV. 1007 (2011) [hereinafter Kysar, Lasting Legislation]; Rebecca M. Kysar, The Sun Also
Rises: The Political Economy of Sunset Provisions in the Tax Code, 40 GA. L. REV. 335 (2006)
[hereinafter Kysar, The Sun Also Rises]; George K. Yin, Temporary-Effect Legislation, Political
Accountability, and Fiscal Restraint, 84 N.Y.U. L. REV. 174 (2009). The normative desirability of
temporary legislation is also invoked in the debate over entrenching legislation (legis lation that
attempts to bind against subsequent legislative action). Compare Eric A. Posner & Adrian
Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE L.J. 1665, 1676–77 (2002) (arguing
that sunset clauses and entrenching clauses are “mirror image[s]”), with John O. McGinnis &
Michael B. Rappaport, Essay, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA.
L. REV. 385, 444 (2003) (“Sunset provisions raise none of the special problems . . . that make
majoritarian entrenchment problematic.”). The debate over the normative desirability of
temporary legislation goes back to the Founding. For exampl e, in Federalist No. 26, Alexander
Hamilton argued that appropriations for the armed forces should be temporary in order to oblige
the legislature “to deliberate upon the propriety” of the level of funding. THE FEDERALIST NO.
26, at 142 (Alexander Hamilton) (Am. Bar Ass’n ed., 2009).
3. The preferences of the 60th sena tor are determinative of whether a bill can overcome
filibuster. See infra text accompanying notes 15–19.
4. This work was pioneered by three influential political scientists. See generally DAVID W.
BRADY & CRAIG VOLDEN, REVOLVING GRIDLOCK: POLITICS AND POLICY FROM JIMMY CARTER TO
GEORGE W. BUSH (2d ed. 2006); KEITH KREHBIEL, PIVOTAL POLITICS: A THEORY OF U.S.
5. This empirical work is most closely associated with two important political scientists. See
generally KEITH T. POOLE & HOWARD ROSENTHAL, IDEOLOGY & CONGRESS (2007).
6. I use the term “renewal” broadly to include situations where temporary legislation
changes significantly when renewed. I separately consider: (1) whether temporary legislation is
renewed; and (2) how temporary legislation changes if it is renewed. Parts II and III focus on the
former. Part IV focuses on the latter.