Days after the chaotic storm on the Capitol on January 6, some Republican Congressmen had an idea.
What the country needed, decided Reps John Katko (R-NY), Rodney Davis (R-IL), and others, was a bipartisan commission, similar to the one set up after 9/11, to sort the facts and fairly determine how such a terrible breach of government security occurred.
Now, however, the chances of getting such a commission are at risk. A bill to establish it was passed last Wednesday with the support of all Democrats and 35 Republicans. But most of the others in the GOP, including the party leaders, have voted strongly against the bill, and the party’s senators are planning a filibuster.
The Republicans have apparently calculated that the results of such a commission would likely damage their party’s election prospects. Some even admit it: “Anything that will make us rewarm the 2020 elections is, in my opinion, a day when we cannot contrast ourselves with the very radical left-wing Democratic agenda,” said John Thune, Senate minority whip, last told reporters week.
But even if a deal somehow comes off, there are real reasons to doubt whether such a commission would achieve anything substantial.
There is nothing magical about this proposed bipartisan commission – it would have the same formal powers as any ordinary congressional committee dealing with the matter. Indeed, the need for bilateral support to issue subpoenas means that it might be less aggressive to find new information than a Democratic-only Committee investigation, for example, might be.
Instead, the hoped-for benefit would be in the area of messaging. The idea is that such a body, if viewed as above politics, could provide an assessment of what happened, what is believed by both sides to be credible, and form a national narrative.
The proponents of a commission of January 6th really hope to achieve this second goal. The hope is that if only the sensible Republicans and Democrats could get together, they could reach consensus and intelligently explain how and why the Capitol was stormed, and how the US can prevent this from happening again.
It is a doomed hope.
How the 9/11 commission was “successful” and why a 1/6 commission probably wouldn’t
The law passed by the House of Representatives is deliberately modeled on the 9/11 Commission – it calls for 10 commissioners, five from each party, to be appointed by the Congress leaders. So this previous body is a useful comparison with teachings on how such assignments can be viewed as successful and what they actually achieve.
The first lesson is about PR. The Commission’s 9/11 Report was published as a 567-page book that became a bestseller, and in the discourse it was often viewed as the final assessment of what went wrong. However, this was not because everything went smoothly (there was a lot of politicized disputes and a lot of important information withheld) or because everything the commission discovered was new (a joint congressional committee had already finalized a report with a lot of similar facts).
Philip Zelikow, the Executive Director of the 9/11 Commission, wrote in an email that the Commission had made important contributions. He says it “resets misleading narratives” about the 9/11 government itself, analyzes the entire government, not just the intelligence agencies, and uncovered more about the “covert record actions against al-Qaeda”.
Regarding the public reception, Philip Shenon (author of a book on the Commission) argued in a recent interview with Just Security that the report was better “packaged” – many noted that it reads more like a novel than a policy document. Additionally, the two savvy, moderate retired politicians, former New Jersey Governor Tom Kean, a Republican, and former Indiana Democrat Lee Hamilton, have teamed up to promote the final product as truly bipartisan and credible.
The key is, however, that Kean and Hamilton ultimately wanted to promote a non-partisan product. This time the Republicans are against the idea of the commission from the start. Their appointments are hand-selected by McConnell and Kevin McCarthy, the minority chairman of the House of Representatives. These are more likely to elect commissioners who are prone to obstructing and raising objections and not giving the later report a bipartisan halo.
The second lesson is about politics. The sunny view of the bipartisan commissions is that members of both parties are brave enough to put politics aside and do what’s right for the country. The more cynical and probably more realistic view is that politics never really leave the process – especially when the issue has a serious impact on both parties in the elections.
The question of who in the US government deserved to be blamed for the September 11, 2001 attacks had potentially monumental implications for both parties. The Republicans had accused Bill Clinton of failing to crack down on Osama bin Laden during his tenure as president in the late 1990s, while the Democrats had accused George W. Bush of ignoring the warnings leading up to the attacks himself. The report was written as Bush’s re-election emerged and with widespread speculation that Hillary Clinton would one day run for the presidency.
Despite all this, the 9/11 commissioners achieved a non-partisan unanimity. They did this, however, essentially by making sure that the final report was “balanced” and that none of the presidents was singled out for undue guilt. Critics on both sides would argue that the desire for bipartisanism led to something like whitewash.
Storming the Capitol is a problem with very different partisan dynamics, and it is difficult to imagine what a “balanced” report on it could look like. Any full and serious assessment of what happened has only one realistic chance that a party – Donald Trump’s party – will look bad. And Republicans were very clear that they didn’t want to do this for electoral reasons.
In practice, the Commission would highlight an issue that divides the GOP
While Republicans would likely be able to keep a bipartisan 1/6 commission from getting a lot of substance, they would really prefer not to have any at all.
This is because, as Thune admitted above, and as Liz Cheney’s fall shows, party strategists see any discussion of Trump’s attempt to overturn the election result as a detrimental problem for their party at this point. They want to hold the 2022 elections over Biden and Democrats, not Trump.
The parties prefer issues that unite their own members and put their opponents on the defensive. But on this issue, the Republicans are clearly on the defensive. The GOP base disagrees with public opinion on this issue. So they really want it to just go away.
Democrats, meanwhile, have electoral incentives to try and keep storming the Capitol on the news as best they can. “Democrats should spend every day tying everything to the Republican Party,” political advisor James Carville recently told my colleague Sean Illing. (McConnell reportedly shared this interview to argue that Democrats are politically motivated here.)
So if the election and messaging advantage is the real goal, the Commission would still be worthwhile for the Democrats. But bipartisan feel-good is not in sight, and facts would likely be difficult to find either, if Republican commissioners agree to vote as a bloc against controversial subpoenas.
Do Democrats have fallback options if the bill fails?
In any case, unless the thinking of Republicans in the Senate suddenly changes, theories about how such a commission would play out are likely to be controversial.
There are currently a few Senate Republicans, like Susan Collins (R-ME) and Mitt Romney (R-UT), who are open to supporting an amended version of the bill (Collins wants staff to be non-partisan and Romney wants make sure they are ready by the end of the year). Many others, however, are firmly ingrained against the idea and appear to be immobile. So the current bet is that the 10 GOP votes that are needed to overcome a filibuster will not come about.
What can Democrats do instead?
Again, it is useful to remember the two most important things a commission can do – finding facts and forming narratives.
With regard to formal fact-finding powers, a congressional committee can do anything that a bipartisan commission can do. Namely, it can hold hearings and issue subpoenas. One benefit the Commission could have is the uniform focus on one issue – but this could also be achieved by setting up a special ‘selection committee’ to examine January 6, as House Republicans did for Benghazi .
In the House of Representatives, Democrats have majorities on every committee so they can issue subpoenas they want. The story is more complicated in the Senate, where the committees are evenly divided due to the 50:50 split in the Chamber. According to an analysis by the law firm Covington & Burling LLP, Jon Ossoff (D-GA), chairman of an investigative subcommittee, is the only Senator who can unilaterally issue a subpoena without the assistance of Republicans. It’s not entirely clear whether committees could potentially hold blocked subpoenas to a full Senate vote, but it may be possible.
As Norm Ornstein of the American Enterprise Institute’s conservative think tank recently pointed out in an interview with Greg Sargent of the Washington Post, “the subpoena power of Congress is extraordinarily powerful in theory,” but it is clear that “in practice it can be quite easily undermined. “Ornstein added,” We have seen, instance by instance, people defy subpoenas, bring them to justice, and hold them out for years. ” In practice, as we saw at various hearings in the Trump years, congressional committees are most successful with willing witnesses who want to hand over documents or testify (often technically subpoenaed for legal protection).
And when it comes to narrative framing, congressional committees seem to be more biased by the media compared to a dedicated bipartisan commission. But the hope of establishing a national consensus narrative about the events of January 6th has always been a pipe dream.
Most Republican voters today live in an information environment dominated by conservative media outlets like Fox and social media telling them what to hear. Recognizing this reality, most Democrats may only move forward by trying to gather facts and argue publicly to the best of their ability – on their own.
This article has been updated to include comments emailed by Philip Zelikow, Executive Director of the 9/11 Commission, after it was published.