Hines and Logue’s model is necessarily undemocratic.

[*293] B. Broad Delegations to Independent Experts Congressional delegations to administrative agencies are commonplace in the modern Federal government. But the tax system has only infrequently relied on broad delegations: while there are instances in which Congress has delegated broadly in the tax code, 77tax legislation has generally consisted of Congress enacting extremely detailed tax statutes that leave little room for discretion to be exercised by Treasury or any other agency. 78Congress has been able to legislate with specificity and in high volumes without relying on delegation because of the institutional capacity it has developed in-house. 79 [*294] The first democracy avoidance technique is to introduce broad delegations into tax laws. The Tax Cuts and Jobs Act featured a moderate version of this sort of delegation. As usual, the Department of Treasury was responsible for implementing the new tax law. But unlike most prior legislation, the law featured several exceptionally broad delegations that left Treasury with significant policymaking discretion. 80Although this move to broader delegations may have been incidental, it is consistent with other proposals that would move tax lawmaking even further towards significant delegations. Hines and Logue make an extended case for broader delegations of tax policymaking authority, arguing that tax policymaking should be entrusted to professional staff who have "political independence." 81Their most drastic proposal is for Congress to delegate authority to set tax rates to the Federal Reserve Board of Governors or to a similar sort of "independent" regulatory body. 82Their goal is to allow the Federal Reserve to coordinate fiscal policy, which has typically been the purview of Congress, with monetary policy, which has long been reserved for the independent Federal Reserve Board. 83 [*295] Hines and Logue describe their proposal to give the Federal Reserve tax rate-setting authority as empowering it to fight economic contractions by "precommit[ting] to an optimal policy plan over time, which Congress notoriously struggles to do." 84Delegation would serve as a bulwark against what they see as inappropriate meddling and tinkering by Congress. 85For example, a high-profile example of the problem they seek to avoid might be Congress' notorious inability to sustain base-broadening, rate-reducing "tax reform" of the sort enacted in 1986. In that case, and in others, a base broadened by eliminating "loopholes" was quite promptly re-holed, and the broadly reduced rates crept back up. 86 They also argue that broad delegations to experts allow for policy changes that are more responsive to "changed circumstances." 87The concern here is that the legislative process is too cumbersome; for example, Congress may find itself unable to enact fiscal policy to meet the moment of turning economic cycles--in broad strokes, lower taxes in recessions, higher taxes in boom times. This second critique is the diametric opposite of the first one: their concerns seem to be that Congress is too quick to change policies when it shouldn't, but also not quick enough to change policies when it should. The unifying concern here, implicit in Hines and Logue's description of Congress's deficiencies, is about the influences to which Congress is responsive. In short, [*296] this is a public choice story: special interests push Congress in wrong directions, regardless of the circumstances. 88Delegation, they argue, could screen out some of these influences by transferring authority to better insulated bodies. Hines and Logue believe that the case for policymaking via delegation of this sort "is as strong with tax as elsewhere." 89The tax system, they argue, is missing out on specific benefits facilitated by delegation to agencies in the modern administrative state, namely reliance on expertise in policymaking settings that are shielded from political winds. 90They argue that the benefits of expertise accrue in other areas of law in which Congress makes broad delegations to administrative agencies--transportation, food and drug, environmental and health care, to name a few--should also be bestowed on tax policymaking. 91Although broad delegations that give agencies wide-ranging policy discretion raise some basic and well-recognized democratic concerns, [*297] non-tax scholars have confronted these issues extensively. 92But the goal of political independence runs contrary to a primary justification offered by administrative law and constitutional law scholars as to why broad delegations are permissible in the U.S.'s constitutional structure, namely that agency personnel are faithful to the politically accountable President. 93 Indeed, while there is an extensive literature on the importance of central bank independence and expertise, 94there is no similar body of literature or academic support for political independence in tax [*298] policy; Hines and Logue acknowledge that some elements of their proposals would be "unprecedented." 95 Further, the Federal Reserve is an outlier even among independent government agencies. 96Its features make it perhaps the most politically insulated piece of the Executive Branch, and have raised persistent questions about the constitutionality of its structure and the potential lack of democratic accountability for the decisions the Federal Reserve Board makes. 97Its members are protected from removal by the President by statute so that they do not feel obliged to follow administration policy; it has independent litigation authority, so does not need to rely on the Department of Justice to support its legal positions; 98it has its own source of funds so that it does not rely on Congress for annual appropriations; 99its regulatory actions are exempt from centralized review by the Office of Information and Regulatory Affairs, and its [*299] interactions with Congress are exempt from the sort of White House review to which departments and agencies are generally subject; 100and its multimember structure is thought to facilitate independent "deliberative decision making" and foster greater reliance on expertise. 101 Using the Federal Reserve to set tax rates would, by design, severely limit opportunities for public participation in tax policymaking. 102The authors acknowledge that "delegation arguably reduces the democratic nature of the system, undermining the legitimacy" of whatever policies are ultimately adopted--which they explain to mean that policies that are the product of this sort of broad delegation may lack public accountability, and thus may be judged to be illegitimate. 103They also recognize that the distributional effects of tax policy are "quintessentially political decision[s] entailing tradeoffs among different groups of taxpayers." 104 Nonetheless, the authors dismiss concerns related to democratic values as having been "overstated" by critics. 105They acknowledge that [*300] there are mechanisms included in the constitutional and institutional design of Congress that allow "voters to understand their representatives' contributions to legislation outcomes, and to a certain degree, why legislators voted the way they did," and they recognize that this facilitates accountability. 106That is, they acknowledge that Congress has some potential strengths in providing transparency and accountability. Additionally, they do defend delegation in part on grounds that there are some mechanisms for delegated decisions to reflect public preferences, via direct engagement with the rulemaking process and through the election of the President. 107 To be sure, there are various ways that broad delegations can be designed to cabin the authority of agency officials, and that decisions made by unelected bureaucrats can be made to be responsive to the public. Indeed, Hines and Logue offered that their proposal could be cabined if Congress specified the final distribution of the federal tax burden (thus limiting the Federal Reserve's discretion to change rates too differentially). 108Nonetheless, in federal tax law, more and broader delegations-whether it is rates to the Federal Reserve, or the contours of special tax provisions as seen in the Tax Cuts and Jobs Act--means shifting decision making from elected officials to unelected officials, moving the decision making process and inputs farther from public view, and moving away from the possibility of electoral accountability for decisions.