Uncertainty leads to makeshift solutions
In May 2021, the Colorado Senate rejected placing a 10-year sunset provision on HB 21–1232, which would create a standardized health plan. During the debate, senators discussed whether the bill needed a sunset provision and the justification for adding sunset provisions to legislation in general. After a lengthy debate, the Colorado Senate rejected adding a sunset provision to HB 21–1232.
Colorado is not alone in not adding a sunset provision to its bill. As shown in this figure, sunset provisions are rarely added to modern legislation, even though it is a common misconception that legislatures did not use sunset provisions until the 1970s.
However, there are high-profile examples of sunset provisions in legislation. In 1994, Congress passed the Public Safety and Recreational Firearms Use Protection Act to prohibit the manufacture, transfer, or possession of semiautomatic assault weapons. The law contained a 10-year sunset provision. When the law passed, the Democratic Party controlled Congress and the White House. However, when the law came up for renewal, the partisan make-up had changed, and Republicans were now in control. As a result, the law was not renewed.
Few studies have evaluated sunset provision use in legislatures, even though understanding sunset provisions is important for understanding policy change. In new research in Social Science Quarterly, I analyze the impact of legislative institutionalization on policy adoption by examining the use of sunset provisions in the colonial and early state legislatures from 1757 to 1795. As legislatures institutionalize — increased pay, members serving longer, more legislative activity, and experienced leadership, they are less likely to use sunset provisions. I examine the rate of sunset provision use across the legislatures of the 13 original colonies and early states during a period in which these legislatures were still undergoing the institutionalization process.
I find that the use of sunset provisions decreased as the legislatures institutionalized. Legislatures passing more laws are 2 percent less likely to pass laws with sunset provisions. Paid legislatures are 37 percent less likely to use sunset provisions. The results suggest that less institutionalized, less professional legislatures are more uncertain about the policy outcomes, which results in more laws with sunset provisions. Modern legislatures in the United States are institutionalized, so sunset provisions are a relatively rare phenomenon.
The figure below displays the rate of sunset provision use across the Massachusetts Bay and Virginia colonies from 1757 to 1795. Virginia began this time period as an institutionalized legislature, complete with a standing committee system and sophisticated legislative rules and procedures. As shown in the below figure, Virginia’s rate of sunset provision remains relatively low throughout the 1757 to 1795 time frame. The Massachusetts Bay colony, on the other hand, began the period without institutionalized systems.
Overall, the weight of the evidence suggests that institutionalization has a negative impact on the rate of sunset provisions. These results suggest an important point regarding institutionalization. Less institutionalized, less professional legislatures face greater uncertainty about the outcomes of public policies. As legislatures institutionalize, legislative uncertainty regarding policies decreases, and they pass fewer laws with sunset provisions. Therefore, sunset provisions are used by legislatures as a means to mitigate legislative uncertainty. However, as the figure above for Massachusetts shows, these legislatures experience much greater volatility in policymaking — fostering uncertainty of a different kind. All of this points towards the need for increased professionalism and institutionalization — work still going on across the states today with tremendous implications for public policy.