In the 1970s, CBC TV had a game show called This is the Law. The show centered around a short film (called “videoclip” in today’s talk) of a clown-type actor, acting all sorts of unrelated clown-type antics, in a certain Canadian town, city, or province. At the end of the film, the clown was arrested by a police officer, and the two exited the stage with the clown in handcuffs. The premise of the game was for the panelists to guess which law was being broken in that town, city, or province.
All the laws used in this show were “still on the books.” Legally speaking, one still could have gone to prison for breaking those laws.
I brought this TV show to the attention of Colby Hess. He had written about the importance of sunset clauses in lawmaking, and we had an interesting discussion:
Colby makes two good points in his essay.
First is that obsolete or obscure laws still on the books make the legal system look silly. This silliness tends to discredit the public perception of the law. So when one is on the losing side of a legal decision, blame is cast to the “bad” system, not the quality of the evidence and legal arguments that led to that legal decision. Clown shows like This is the Law do not elevate the public perception of the law.
Second, obscure laws can be reactivated and weaponized to punish political enemies. For example, I consider most of the current Trump infractions as political weapons. He’s been doing this kind of stuff for decades and getting away with it. He is feeling the law now only because he is a viable and dangerous contender in 2024.
Usually — and for good reasons — the police and civil service decide to no longer enforce laws that have “gone bad.” In other words, the unelected police and civil service are kind of writing the legal system for us.
In an ideal world, we would repeal poor laws or laws that have become unnecessary — just to avoid the kind of situations Colby is talking about. Colby proposes that new laws come with sunset clauses, which means the law expires at some future time — unless the legislature specifically renews this law before the expiry date.
Sounds fair enough. But there is a good reason why modern democracies pass the decision to no longer enforce unnecessary laws to the civil service. It’s called “due process.”
Our 19th-century legislatures
In all Western societies, there are many rules around turning government concepts into bills and later, bills into laws. It is a rather ponderous process that has many hoops to jump through, ropes to climb, and pegs to put into holes. The basic reason for this ponderousness is to give sufficient opportunity for the political opposition, the media, stakeholders, and the public to inspect and challenge the bill. Public pressure can force amendments into the bill or warn the governing party an election is coming up — and votes could be on the line. All this contributes to democracy working as well as it is working. Lawmaking is less arbitrary with all the rules, hoops, ropes, and pegs.
While the ponderousness serves this purpose, it also means that a governing political party has limits to how many laws it can pass in a legislative session. It has to pick and choose which ideas need to be turned into new laws in the short term — and which ideas to leave behind for the future.
Giving time to renew good laws which are nearing their sunset clause would require more legislative time and energy dedicated for that purpose. This would mean less time and energy for new laws. Remember that “due process” thing? Sunset clauses would not be as easy to implement as they sound. Our many laws would need frequent re-activating.
So there is rationale for letting the civil service decide which laws not to enforce. If a law is working well and should be kept on the books, let’s just keep it on the books without additional legislative process. If a law has gone bad, let the civil service stop enforcing it.
Yes, it’s true that obscure laws are weaponized from time-to-time. So there is a trade-off between this infrequent weaponization and saving legislatures for developing new laws. Have we made the right balance?
Adding the burden of sunset clauses would reduce the number of new laws to adapt to our quickly changing world. Our 19th-century legislatures are already moving too slow for the 21st century.
Tiered Democratic Governance
Rather than continue to argue “civil service vs. sunset clauses,” I have a different solution. Let’s build a new democracy.
I have invented an alternative democracy called Tiered Democratic Governance (TDG). I believe this future TDG will streamline our legislative processes.
Exactly how, I cannot say. There is going to be a lot of experimenting as the TDG matures to when it can assume governance. But as we are building this new democracy, we will find better ways to move interesting ideas into bills and bills into laws and laws into respected laws. We will no longer be stuck in the 19th century.
I will briefly introduce two features of the TDG and how they relate to sunset clauses:
1) The TDG elections will find the more capable and trustworthy people to place in governance. We need not have ponderous procedures to minimize abuses of power.
2) The TDG elected representatives will no longer allocate time to the needs of their political parties. This time can be spent on “governing.” So obsolete laws can be legally repealed a lot more easily.
Today’s objections with sunset clauses will be moot points with TDG governance. In fact, I expect a few early TDGs will put in sunset clauses into their first constitutions. If a local TDG wants to go in the direction of sunset clauses, I say, “Go for it!” We need to learn whatever lessons we need to learn.
Laws with sunset clauses is one of many popular suggestions to improve democracy. To take this concept to full implementation with the current system, it will require a sustained effort from the public. Ironically, a similar effort will be required to build the TDG, a whole new democracy.
Maybe we should focus on the new democracy.
Published on Medium 2024
