Foreword: The Past, Present, and Future of the Federal Tax Legislative Process

Law and Contemporary Problems, Spring 2018 | Go to article overview

Foreword: The Past, Present, and Future of the Federal Tax Legislative Process


The Tax Cuts and Jobs Act of 2017 (1) is--for better or worse--the most significant piece of federal tax legislation since the Tax Reform Act of 1986. (2) Despite the comparable significance of the two tax acts, they could scarcely have been more different in terms of the legislative processes that produced them. The 1986 Act grew out of not one, but two, lengthy Executive Branch tax reform studies--the multi-volume "Treasury I" of November 1984, and President Reagan's nearly 500-page proposal of May 1985 (often referred to as "Treasury II"). (3) In response to the proposals from the Treasury and the White House, the congressional tax writing committees each convened over forty days of hearings and conducted markups lasting seventeen and twenty-six days. (4) Following the release of Treasury II, more than sixteen months passed between the first hearings of the House Ways and Means Committee in June 1985 and President Reagan's signing of the bill in October 1986, (5) and almost two years separated the release of Treasury I from the presidential signing.

In 2017, the role of the multi-volume Treasury I was played by a one-page collection of bullet points released by the White House in late April. (6) In place of the hundreds of pages of Treasury II, in late September the Trump White House offered a nine-page (counting the title page and some pages featuring mostly white space) Unified Framework for Fixing Our Broken Tax Code J Following the introduction of the House bill reflecting the Administration's tax reform proposal, neither tax committee held a single hearing and each conducted a largely pro-forma markup of only four days. The entire legislative process--from the House bill's introduction on November 2 to the presidential signing on December 22--took barely seven weeks.

The truncated legislative process of 2017 did not suddenly appear last year out of nowhere; rather, it was the culmination of trends in the tax legislative process over the past several decades. Nevertheless, it was an extraordinary manner of proceeding for legislation of such breadth and complexity. In the aftermath of the 2017 whirlwind, it is extremely timely to present this special issue on the past, present, and future of the federal tax legislative process.

Each of the eight articles in this issue features both historical background and forward-looking perspectives. We introduce them here in the order in which they appear in the issue, beginning with the articles focused primarily on the events of 2017 and concluding with the more historically-oriented contributions that provide insights into how we arrived at the tax legislative process of 2017.

In the first article, Victor Fleischer describes how passage of the 2017 tax bill revealed weaknesses in the institutions supporting the formation of tax legislation in this country. (8) By "institutions," he refers not only to the rules and norms of the legislative process, but also to the manner in which key players--including elected officials, government staff, interest groups and lobbyists, experts from the private sector and academia, and journalists--have traditionally interacted within that process. Fleischer served as the Democratic Chief Tax Counsel for the Senate Finance Committee until midway through 2017, and is therefore especially well situated to comment on the current state of these institutions. According to Fleischer, when the tax institutions are strong, "norms of equity, efficiency, or administrability drive policy, and evidence and reason dominate tax arguments." (9) In contrast, when the traditional institutions are weak, "party loyalty, ideological faith, rent extraction, and political messaging drive policy." (10) He claims that many of the usual participants in the legislative process, such as the tax committees, the Joint Committee on Taxation, Treasury, lobbyists, tax practitioners, academics, and think tanks, played diminished roles in 2017, reducing the openness and inclusiveness of the process. …

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