The Pivotal Politics of Temporary Legislation

• Author: Jason S. Oh
• Position: Assistant Professor of Law, UCLA School of Law
• Pages: 1055-1103

1055

The Pivotal Politics of Temporary

Legislation

Jason S. Oh

ABSTRACT: Temporary legislation—law that expires on a given date—is

an increasingly important part of the policy landscape in areas as diverse as

homeland security, gun control, and taxation. Whether temporary legislation

is renewed (and just as importantly, whether sophisticated actors expect such

legislation to be renewed) is key to understanding its behavioral effects and

long-run policy implications. Before we can evaluate the desirability of any

piece of temporary legislation, we must first understand the uncertainty

surrounding its renewal. This Article fills a gap in the existing literature by

providing a theoretical and empirical framework for exploring that

uncertainty.

I. INTRODUCTION ........................................................................... 1056

II. MODELING THE RENEWAL OF TEMPORARY LEGISLATION ........... 1058

A. MODELING THE LEGISLATIVE PROCESS WITH PIVOTS ............... 1059

1. When Is Legislative Action Possible? ......................... 1063

2. Shifting Pivots and Shifting Policies .......................... 1066

B. UNDER WHAT CONDITIONS WILL TEMPORARY LEGISLATION BE

RENEWED? ............................................................................ 1071

1. Renewal Depends on the Underlying Permanent

Policy ............................................................................ 1071

2. Expiration as Gridlock ................................................ 1073

3. Renewal Can Also Depend on Why the Legislation Was

Enacted as Temporary ................................................ 1074

4. One-Dimensional Preferences, Logrolling, and Strategic

Disagreement ............................................................... 1076

 Assistant Professor of Law, UCLA School of Law. The author would like to thank Asli

Bâli, Steven Bank, Samuel Bray, Ingrid Eagly, Dan Halperin, Allison Hoffman, Louis Kaplow,

Sung Hui Kim, Hiroshi Motomura, Leigh Osofsky, Joanna Schwartz, Seana Shiffrin, Kirk Stark,

Chris Tausanovitch, Kathleen DeLaney Thomas, Eric Zolt, and participants in seminars at

Harvard University, University of Toronto, UCLA, and Loyola Law School (Los Angeles) for their

helpful comments on earlier drafts. The author would also like to acknowledge the helpful

assistance of Alexander Stevko and Kris Tayyeb.

1056 IOWA LAW REVIEW [Vol. 100:1055

III. MEASURING THE LIKELIHOOD OF RENEWAL ............................... 1079

A. UNPACKING RENEWAL-UNCERTAINTY ..................................... 1080

1. Measuring the Gridlock Zone .................................... 1081

2. Measuring the Proximity/Extremity of the Underlying

Permanent Policy ........................................................ 1084

B. NORMATIVE IMPLICATIONS OF THE METHODOLOGY ................ 1088

C. LIMITATIONS AND EXTENSIONS .............................................. 1091

IV. HOW DOES THE CONTENT OF TEMPORARY LEGISLATION

CHANGE? ..................................................................................... 1094

A. THE EFFECT OF SHIFTING PIVOTS ON THE CONTENT OF

LEGISLATION ........................................................................ 1095

B. LEGISLATIVE INDETERMINACY INCREASES CONTENT-

UNCERTAINTY ....................................................................... 1099

C. WHEN IS TEMPORARY LEGISLATION A RESPONSIVE POLICY

TOOL? .................................................................................. 1101

V. CONCLUSION .............................................................................. 1102

I. INTRODUCTION

Uncertainty is an unavoidable part of any democratic lawmaking process.

Congress’s ability to change laws has broad implications. The behavioral

effects of the law depend on how citizens and businesses expect the law to

stand in the future. The long-run fiscal and macroeconomic implications of

the law depend on its political stability. This political uncertainty is

particularly salient with respect to temporary legislation—law that expires on

a given date. Whether temporary legislation is renewed (and just as

importantly, whether sophisticated citizens and businesses expect such

legislation to be renewed) is key to understanding its behavioral effects and

long-run policy implications. Before we can evaluate the desirability of any

piece of temporary legislation, we must first understand the political

uncertainty surrounding its renewal.

For example, consider the temporary capital gains rate cut in 2003.1 How

did taxpayers respond to that cut? Was that response different because the

rate cut was temporary? Did the temporary rate cut raise or lose revenue? Did

revenue projections accurately or inaccurately reflect its cost? All of these

inquiries are affected by uncertainty regarding the renewal of this provision.

One cannot determine whether the temporary rate cut was desirable without

first understanding the likeliness of its renewal. This Article fills a gap in

1. See infra notes 86–88 and accompanying text.

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.

LAWMAKING (1998).

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.