Sunsets key to democratic deliberation and rule of law.

The regulatory reform movement of the 1970s promoted the use of sunset clauses as a mechanism to improve legislative oversight of the bureaucracy and to increase regulatory efficiency. As Christopher Mooney has written, "[t]he contemporary concept of sunsetting dates from the idealistic political reform movement of the 1970s, which sought to transform a U.S. government considered bloated, in-efficient, and beholden to special interests. ' 16 In The End of Liberalism, Theodore J. Lowi favored sunsets as a mechanism to reinvigorate stagnant government bureaucracies. 17 To counteract the problem of interest-group liberalism, in which bureaucratic agencies were often captured by the interests they were meant to regulate, Mooney writes, "Lowi suggested a 'tenure-of-statutes act' that would set a 'Jeffersonian limit of from five to ten years' on the life of every law creating a federal agency."' 18 "The objective," Mooney notes, "was less to make these agencies disappear than to use the termination date to achieve what Lowi called a 'guillotine effect,' sparking effective legislative oversight and possible reorganization of agencies that had grown too big for their britches." 19 On this view, sunsets can advance the public welfare by ensuring that legislation creating regulatory agencies that have outlived their purpose expire or are replaced by more current public policy tools. The impetus behind the sunset movement was to improve democratic accountability by subjecting bureaucratic agencies to periodic legislative oversight and control.

Sunset clauses can also improve public policy by increasing opportunities for, and by improving the quality of, legislative decision- making. Sunset clauses promote democratic oversight and accountability by providing the legislature with periodic opportunities to revisit questions with the additional information or experience necessary to adjust or to recalibrate public policy. Sunsets can also encourage policy innovation and legislative learning by creating incentives for policy makers to develop mechanisms for policy implementation and assessment. Moreover, sunsets may provide legislators with an institutional imperative to seek and develop improved informational resources. Some students of sunsets refer to these as "deliberative" benefits, which are elements or characteristics that improve second stage legislative decision-making by improving the quality and functioning of the deliberative process. 20

There are also "informational" and "distributive" advantages to temporary legislation.21 "From an informational perspective, temporary legislation provides .... windows of opportunity for policymakers to incorporate a greater quantity and quality of information into legislative judgments. By redistributing the decision costs of producing legislation [often by transferring or delaying costs to another time], temporary measures also facilitate experimentation and adjustment in public policy. '22 Sunset clauses are thus attractive in conditions where initial policy judgments are likely to be inaccurate and where those policy judgments may be expected to be informed by or revised when more or better information becomes available. 23 Consequently, sunsets are an especially useful tool when legislatures must act in conditions where information is limited or uncertain, but the perceived need for action is high.