Senators picked Americans’ pockets via degraded tax policy process

The Tax Cuts and Jobs Act, this year’s Christmas present to the donor class, is an abomination. Its top-heavy distribution of cuts, its wasteful mistargeting of incentives, and its funding of permanent corporate tax cuts via tax hikes on millions of ordinary taxpayers have been widely publicized.

From the other direction, whatever virtues the bill might have are completely swamped by its trillion-dollar plus impact on government deficits. But before moving on, we should review some of the process through which this bill was fashioned.

{mosads}Over the long haul, the politicization and perversion of what had been a bipartisan approach to tax lawmaking will prove at least as damaging as the substance of this bill. Further, the debates surrounding who will pay how much as a result of the legislation reveal that the standard tools used to make these judgments are in need of revision.

The tax code can best be understood as an enormously complex economic model of all of economic activity: Whatever you do in the real world, no matter what the economic activity, pulls a lever or pushes a button inside the model and out spits a tax bill.

The tax legislation process therefore has always rested on a foundation of expertise in the form of lawyers and public finance economists deeply immersed in the technical minutiae of the tax code and in its impact on economic behavior.

This expertise is centralized in two places: the Treasury Department and the staff of the Congress’ Joint Committee on Taxation, the nonpartisan tax law and economics resource to Congress. These experts are committed to acting as honest agents to their respective bosses and to the taxpaying public. But this time, these authentic pools of expertise have largely been ignored.

Normally, there are multiple congressional hearings, proposed statutory language and detailed reports from the tax-writing committees, all prepared well in advance of any vote. These are prepared with the assistance of JCT staff and with the input of Treasury Department experts.

Regular order offers experts inside and outside the government an opportunity to study the legislation and to call to the drafters’ attention drafting mistakes and unintended consequences, both of which bedevil any first draft of a tax bill.

This time, the process has been so rushed and so secret that the Senate early Saturday morning voted on legislation that in part comprised handwritten amendments stuck into the bill, the contents of which were neither known nor understood by virtually any of the Senators called on to vote.

Tax experts outside government already are finding both unintended opportunities and inappropriate tax penalties in the hundreds of pages of hastily drafted legislation.

But the problems run much deeper than the breakneck schedule. The JCT staff’s most visible contributions to the tax legislation process are its revenue and distribution tables.

Revenue tables summarize, provision by provision, the estimated increased or decreased revenues that could be expected from proposed tax legislation, relative to leaving things as they are; these are Congress’ official scorecards for the budgetary impact of tax legislation.

The distribution tables show how much more or less different classes of taxpayers (ranked by incomes) can be expected to pay.

The process this time revealed weaknesses in JCT distribution table methodologies that deserve a rethink. As one simple example, JCT staff distributional analyses typically limit themselves to income tax matters and therefore ignore the distributional implications of changes to the estate tax. The JCT staff followed that precedent in its distribution tables for the House bill.

But while there may be reason to ignore relatively small changes to the estate tax, outright repeal is both expensive and an extremely top-heavy distribution of tax goodies. It also is easily distributed to taxpayers, as it affects only the most affluent. It should be included.

Another more complex example relates to the inconsistent treatment of the bill’s repeal of the individual mandate in the JCT revenue and distribution tables.

Finally, the JCT staff prepares a macroeconomic revenue projection. This is an enormously complex undertaking that attempts, to the best ability of economists’ current consensus understanding, to measure how a large-scale tax bill might affect the overall growth path of the U.S. economy, as well as shifts within the economy.

Doing it right requires consideration of all the interaction effects within a tax bill, and across both domestic and cross-border economies.

The House majority did not wait for a JCT staff macroeconomic analysis and instead relied on any private estimate that suited its fancy, without the slightest consideration of that unvetted private model’s biases or shortcomings.

The Senate essentially did the same, as the JCT staff macroeconomic analysis was completed only the day before the Senate’s late-night vote.

Most distressingly, so did Treasury Secretary Mnuchin, whose career economists are the only government resource beyond the JCT staff actually capable of undertaking a comprehensive macroeconomic analysis of how all these major tax amendments would map onto taxpayer behavior.

The New York Times exposed as a lie Mnuchin’s claims that teams of Treasury experts were working feverishly on such an analysis, and the Treasury inspector general has now opened an investigation of these claims.

Sen. John Cornyn (R-Texas), majority whip, violated congressional norms by trashing the JCT staff’s macroeconomic analysis, because the analysis (while consistent with many of the more comprehensive private sector models) was inconsistent with Cornyn’s tax cut and growth belief system.

“We think they lowballed” future economic growth, he said; based on what? His personal macroeconomic model running in his basement?

Sen. Cornyn then demonstrated everything one really needs to know about the Senate majority’s commitment to transparency and fairness when he inserted at the very last minute a provision into the Senate bill to extend to passive investors in publicly traded master limited partnerships (MLPs) the benefits of the new 23-percent haircut in tax rates that the bill now bestows on active “pass-through” businesses.

MLPs are very large public companies, indistinguishable from the public corporations with which they compete. They are particularly visible in certain natural resources businesses, like oil and gas pipelines, a point that just might have been relevant to the senator from Texas.

These MLP financial vehicles already operate at a tremendous tax advantage over other publicly-traded businesses, because they are the only public companies that are allowed to escape paying corporate income tax.

But that existing subsidy was insufficient for Sen. Cornyn, and now existing investors in such vehicles have been awarded a further windfall by becoming eligible for the new discounted pass-through tax rates sold as tax relief for Main Street business.

Interestingly, the JCT revenue estimate for all the last-minute amendments folded this change into the larger revision in the rate of the tax subsidy for pass-throughs, so that its cost remains hidden.

How many senators knew that this provision was in the bill when they voted for it that night? Or knew what a master limited partnership even was? My pockets have been picked, and so have yours, by this theft of our revenues to line the pockets of existing investors in these arcane instruments.

That is what happens when the tax policy process is allowed to become so thoroughly degraded.

Edward Kleinbard is the Robert C. Packard Trustee chair in law at the University of Southern California Gould School of Law. He is the former chief of staff for the U.S. Congress Joint Committee on Taxation.