Congress in quandary and the spins of commission

In a previous column here on Feb. 26 (“Taking the Capitol Back After the January 6 Attack”), I expressed conditional support for creating a 9/11-style commission to investigate the causes of the bloody riot at the Capitol on Jan. 6 and to recommend measures to prevent a recurrence. The conditions were that the terms and language of the bill creating the commission be the product of bipartisan agreement and that the composition of the commission be completely bipartisan.

The commission proposal has the backing of the chair and vice-chair of the original 9/11 Commission on the terrorist attacks on the U.S., former Gov. Tom Kean (R-N.J.) and former Rep. Lee Hamilton (D-Ind.), respectively. In a Feb. 12 joint letter to the president and leaders in Congress, sent under the auspices of the Bipartisan Policy Center, Kean and Hamilton urged an investigation “to identify how the Capitol was left vulnerable, as well as corrective actions to make the institution safe again.” (Disclosure: I am a fellow at the BPC.) While they recognized that it was up to Congress to determine whether to conduct and how to structure such an inquiry, they argued that “a bipartisan, independent investigation [will] earn credibility with the American people.”

House Speaker Nancy Pelosi (D-Calif.) quickly endorsed the commission idea but threw a stick in the spokes by proposing the makeup of the commission be weighted seven to four in favor of Democratic-appointees. That predictably drew the immediate ire of congressional Republicans who then upped the ante by proposing that the inquiry be extended to the violent protests and arson that spun-off from demonstrations in three West Coast cities in early March on the first anniversary of Breonna Taylor’s death in a police raid in Louisville, Ky.

As Congress prepares to depart for its spring recess later this week, the two parties remain at loggerheads (at this writing) over the fate of the proposed commission.  Given the urgency of addressing such a grave national security threat, it is important that Congress not get too hung-up over the need for an independent commission. The Speaker had already authorized an independent review of the incident by retired Army Lieutenant General Russel Honore, and he has already reported back his initial findings and recommendations. Moreover, the relevant authorizing and appropriations committees in the House and Senate have already moved forward with their own hearings, investigations, and draft proposals. This is, after all, a matter almost exclusively involving the internal operations and security of the Congress. If Congress cannot police itself, what hope is there for it to legislate for the good of the people?

All these questions led me to wonder just how one of the reflex actions of a Congress, or a president, when they find themselves in a quandary over what to do in response to a major problem, crisis, or scandal, is to create an independent commission of “experts” to ferret-out the facts and report back its findings and recommendations for legislative or executive action. 

Such government-sponsored national commissions are not a new phenomenon.  Our history books are replete with examples of such independent efforts originating in the White House, Congress, or both. The most notable presidentially-appointed commissions include: the 1947 Hoover commission on executive branch reorganization; the 1963 Warren commission on the assassination of President John F. Kennedy (subsequently bolstered by implementing legislation by Congress); the 1968 Kerner commission on civil disorders in American cities; and the 1986 Tower commission on the Iran-Contra scandal.

The 2002, 9/11 commission on the terrorist attacks on the U.S. is the most notable recent commission created by congressional enactment, though its initial official push came from President George W. Bush.

A Jan. 22, 2021, Congressional Research Service (CRS) report, reveals that the creation of congressionally created commissions has been legion. From the 101st through the 116th Congress (1989-2020), 161 congressional commissions have been established by law, with the high number being 21 in the 106th Congress (1999-2000) and the low being four in the 113th Congress (2013-14). The criteria CRS uses in its classification are: (1) established by Congress; (2) temporary; (3) advisory capacity; (4) appointed in whole or in part by Congress; and (5) reports to Congress. The two categories of commissions identified by CRS are policy and commemorative, with the vast majority falling under the former rubric. The reasons for commissions vary, according to the CRS, but may include expertise, political complexity, consensus building, collective action problem solving, and visibility.

Commission-making by Congress has come under criticism, skepticism and even cynicism from some academic and political observers who charge issue avoidance (“kicking the can down the road”), delayed action, partisan blaming, relieving public pressures, and, on the plus side, providing expert support for preferred policy preferences. 

In the final analysis, commission-making is a significant ceding to non-elected people, at least temporarily, of Congress’s constitutional policy making and oversight responsibilities. If a problem is an immediate crisis, forming a commission is the least expeditious and least effective way to address it. In the case of the Jan. 6 attack on the Capitol, more immediate steps need to be taken by the Congress itself, and that seems to be happening, regardless of whether a commission is eventually created to address some bigger picture issues. In the meantime, both parties are exploiting the spins of commission to score political points.

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.” The views expressed are solely his own.