The Pivotal Politics of Temporary Legislation

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

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.... (see full summary)

 
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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.

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