10/08/2010 05:41 pm ET Updated May 25, 2011

Suppose the Tax Cuts Expired

In ordinary human interaction, when almost everyone agrees on something, except for one part, you implement the parts everyone agrees on and discuss the remaining part until it is resolved. In the tortured, hyperbolic echo chamber we call the nation's capitol, no such logic prevails. Such is the case with the so-called debate on what to do about the Bush era tax cuts, which expire on December 31, 2010.

I say "so-called debate" because a "debate" assumes that both sides listen and respond to each other. Republicans took a stand based on their leaders' perception of the tactical interests of their party, and now in the election season, Democrats respond in kind. It may be a validly political process, but it insults the integrity of the English language to call it a debate.

The tax cut bills passed during the last presidency went through the Senate by "reconciliation" rules of procedure. Under these arcane Senate rules, the normal need to get 60 votes for cloture (the process that brings a bill to the floor for a vote) do not apply: the bill can advance by simple majority vote. However, the bill moved under reconciliation procedures must be only a fiscal (spending and revenue) measure, and must be deficit-neutral over 10 years.

Of course, there is no way a permanent tax rate reduction can be deficit-neutral. Therefore, the bill had to be written as a temporary rate change, with an expiration date. The promoters of the bill assumed that their party would still be in power when the expiration date approached, and could extend the cuts using the same procedures that were used to first enact it. If the promoters' party loses power, then the expiration creates what the British call a "sticky wicket" for the opposition, now the party in power. And so it goes.

In a common sense world, the Senate would pass the Obama administration proposal to keep the Bush tax cuts for all but the highest income taxpayers. After all, hardly anyone opposes that step. Then one could have an actual, real debate on the merits of letting the cut for the highest income group expire, or not. According to Senate Majority Leader Harry Reid, common sense is now scheduled to break out in the lame-duck session after the elections and before the new Congress is seated in January, 2011.

But suppose it doesn't. Suppose that the same political calculus that prevailed for the last 18 months continues after the election -- unlikely as that may seem. The new tax cut bill would remain stalled, and would procedurally die with the waning session of Congress. The tax cuts would then expire on New Year's Eve, and we would enter 2011 with Clinton-era tax rates.

What would happen? If you listen to the inside-the-Beltway hyperbole, all hell would break loose. But what would happen on planet Earth, in the actual United States of America?

To get a handle on this, I start with something my tax accountant told me. His clients are, for the most part, relatively wealthy people. They own their own businesses, are senior corporate executives, or are retired with substantial investments to manage. In other words, top bracket folks. Their dirty secret? Year in, year out, despite the ongoing flood of new tax rules, procedures, forms, and rates, they actually pay about 25% of their gross to Uncle Sam. How does this work? Well, he explains, his job is to advise his clients so that they can utilize the deductions, rules, and programs to their best advantage, while still fully complying with the law.

So what would you do in this situation if your nominal tax rate goes up? A lot of things, it turns out. You may put more into tax-deferred vehicles, or arrange your income to come as capital gains (lower rates).

If you don't have time to do the year-plus ahead planning for those strategies, the simplest thing is to spend more on things that generate deductions. Give more to charity. Buy a new computer. Do more business travel: go more often, stay longer, upgrade accommodations. When it comes to spending a bit more, creativity is easy.

The result is that even though the rules changed, the check to Uncle will remain about the same. And while I have described the behavior changes of the highest income taxpayers, other taxpayers can employ similar strategies. They do not have as much discretion to implement them, but they also would have a lower tax rate increase to try to offset.

In other words, Americans will do what they always have done since the Sixteenth Amendment went into effect in 1913: curse and scream -- then quietly adapt. Who knows, they might actually boost the economy by spending more in certain areas (deductible, of course).

That may explain, at least in part, the disparity between common political wisdom about tax cuts, particularly for the wealthy, and actual economic performance. A higher marginal tax rate can actually encourage spending, where a lower marginal tax rate can encourage saving. This seems to be the opposite of common sense, but it is the logic for people who are rich. In this context, "rich" simply means having sufficient resources to meet one's actual, minimal, immediate needs -- by this definition, a majority of Americans are at least somewhat rich.

Finally, if the Bush era tax cuts expired, the Obama administration would then be free to devise a tax rate policy proposal not constrained by the policy of the prior administration. Political common sense would seem to say that not only would they, but they would be very motivated to pass it early in 2011 and make it retroactive to New Year's Day.

All this will most probably turn out to be idle speculation on a sunny Friday in October. But if Harry Reid is wrong about common sense erupting in the Senate, remember -- you read it here first.