Public input establishes legitimacy and avoidance is non-unique.

1. An Independent Commission to Write Tax Law Another perennial proposal reflecting democracy avoidance is that Congress should turn over policymaking authority to reform the federal tax [*301] code to an independent commission. As discussed below, Congress attempted versions of this proposal in 1992, 2010 and 2018, and proposals were offered regularly in the 1990s and early 2000s, though none ever successfully resulted in any legislative enactment. Hines and Logue offer a version of this sort of proposal as well under which a group of appointed experts-specifically not elected officials-would be charged with producing a comprehensive plan that would go into effect unless Congress voted to block it. 109 The basic idea is that the decision makers would be able to deliver the tough medicine policies that the country needs in a way that "politics or logrolling among members of Congress" could never be expected to achieve. 110Similar ideas have been proposed by various politicians and policymakers over the years, although there are some important distinctions from a democratic perspective among the various permutations. 111Hines and Logue compare their proposal to the Base [*302] Realignment and Closure Commissions (BRACs) that Congress established at several junctures to reduce the number of military bases in the 1990s and 2000s, 112as well as to one of the recent "super committee" proposals. 113The BRACs had several iterations, each of which was similar; BRACs were generally made up of a panel of people with some military or government expertise but not anyone currently holding a federal elected office or executive branch appointment. 114The commission proposals required several formal approvals--by military leaders, by the president, and a final opportunity for Congress or the President to reject the entire closure plan. This allowed for some democratic oversight, but still transferred specific policy decisions to the commission. 115 Applying this concept to tax reform, Hines and Logue imagine a process whereby Congress would authorize "a group of experts" to put together a comprehensive plan that would go into effect with the approval of the President unless Congress specifically voted to prevent its implementation. 116The advantages they tout for this sort of approach include ability to overcome any "politically powerful constituency" that might block reform of specific provisions. 117Hines and Logue are [*303] particularly interested in the prospect of addressing "long-run fiscal imbalance," 118which implies increasing tax revenue, reducing spending or both over time. By shifting that authority from members of Congress subject to regular elections to decision makers insulated from electoral politics, the result is likely a different sort of analysis of whose taxes should be increased, and what spending should be cut. 119 Compared to the Federal Reserve proposal, this kind of independent commission proposal is more malleable in ways that affect the extent to which it might be undemocratic in practice. In particular, the BRAC experiences show that an independent tax commission could offer some democratic process benefits. The design of the 2005 BRAC required that it be carried out in various ways intended to foster public input, transparency and reason-giving. 120Although the commissioners were not elected office holders, they had a diverse variety of professional and personal backgrounds, reflecting various constituencies that would potentially be interested in the decisions with which the BRAC was tasked. 121They were tasked with evaluating various options by independently collecting information and holding public hearings in the proposed closure sites and elsewhere. 122 And the Commission was required to produce a public report justifying, in detail, the considerations that went into each of its [*304] recommendations. 123The final report and appendices from the 2005 round of base closures runs 758 pages and provides extensive justifications for each military facility that the Commission determined should be closed, as well as explanations for those it determined should be kept running. 124Thus, Congress structured the delegation not only to take advantage of expertise, but also to have someone carry out a public process that would establish legitimacy and help to justify to the public the final decisions. 125 Further, importantly, the BRAC authority was highly constrained as compared to a tax reform commission: Congress made clear the policy goal of reducing military spending by limiting the physical footprint of military facilities, and asked how to do that in ways that serve the needs of the four branches of the armed services. In contrast, a tax reform commission that could make proposals to cut or increase taxes on different groups, and to cut or increase different types of spending, wields much more power. This is true even if Congress were to impose specific constraints, such as setting revenue or spending targets--tax reform raises a vastly larger and deeper set of issues than does base closures. The more apt comparison for a BRAC-type intervention in taxation would be a commission to determine how to implement a tax system enacted by Congress, or, even more apt, to determine what physical facilities were necessary to carry out the tax system. That is essentially what the BRAC did for Congress and the military: given a set of existing laws and strategic initiatives provided by statute and less formally by the President and President-appointed leadership, what [*305] existing physical installations can be eliminated? This sort of implementation issue is far different from a democratic perspective than making more openended policy decisions. In a lawmaking context, more power in the Federal Reserve or in an independent commission could favor certain insiders, such as sophisticated taxpayers who are able to hire representatives to navigate and engage with less public decision-making processes. 126Further, explicit in the proposal is a decision to prioritize a select set of normative commitments over other potential allocative or distributional decisions that might come to bear if Congress maintained plenary authority over tax rates and considered rate changes in conjunction with other tax policy changes. In short, the authors anticipate better outcomes in some specific respects, accomplished by transferring decision making from (at least potentially) politically accountable representatives to (deliberately) politically insulated experts. Thus, in what is a common theme across proponents of these democracy avoidance proposals, the positive case for the potential benefits of greater expertise and insulation from politics implicitly justifies the potential democratic costs. That is, the narrow consequentialist approach focuses on substantive outcomes, but without attention to the value of democratic decision making. The fact of costs is apparent in the ways that democratic engagement is limited, but the extent of costs is more challenging: as discussed in Part III, these costs are imposed on taxpayers who perceive that they have not been treated fairly (or not been included at all) in the tax policymaking process, and when certain taxpayers' interests are losers in that closed process. * * * Each of these two types of proposals--broad delegations to politically insulated officials, and an independent lawmaking commission to reform the tax code--seeks to shape the tax lawmaking process in ways that limit who has a say in certain policy decisions. Although tax [*306] policy is not necessarily a unique venue for these types of proposals, 127the point of highlighting these specific proposals is that this democracy avoidance is a common impulse in tax lawmaking. Tax experts and policymakers focused on preferred outcomes are attracted to expert-shaped policies conceived in a setting that is insulated from democratic participation, rather than existing venues that may be shaped more by publicly accountable elected officials or otherwise with public input. Democracy avoidance proposals allow for decision-making authority to be turned over to experts directly, or by relying on constraints to limit the options that elected officials can consider and to channel public input in specific ways that are filtered through experts. The democratic implications of these process adjustments, and the theory that seems to justify these constraints on democratic debates, are considered in the next Part.