Observers and politicians are calling for an independent investigation of the Jan. 6 attack on the Capitol. House Speaker Nancy Pelosi (D-Calif.) said that members of Congress are showing “strong interest” in creating an independent commission akin to the one that studied the Sept. 11, 2001, terrorist attacks. House Minority Leader Kevin McCarthy (R-Calif.) has also floated the idea, and lawmakers in both parties are issuing an array of proposals to establish a probe.
Many people deride commissions. Barack Obama once called their formation “the oldest Washington stunt in the book.” But even though commissions can sometimes help leaders deflect blame, they can also insulate investigations from political pressure, produce definitive accounts of what went wrong and build consensus for corrective actions.
How do commissions work?
The president alone can establish a commission with a directive, or Congress and the president together can enact a law to create one. The directive or law typically tells the commission what to investigate, and by when. The 9/11 Commission took about a year and a half, while an independent investigation of the 2012 attack on a U.S. mission in Benghazi, Libya, wrapped up in just three months.
The president typically appoints members of commissions created through executive authority. Leaders of both parties usually share appointment power for congressional commissions. For “independent” commissions, at least some of the members are not elected officeholders.
Why are commissions established?
It’s true that sometimes — perhaps often — elected officials do form these bodies to deflect political pressure, avoid blame or kick the can down the road.
But the president and lawmakers can sometimes have more forward-looking motivations, such as gathering information, emphasizing an emerging challenge or developing agreement across party lines.
What have commissions achieved?
The track record of U.S. commissions is decidedly mixed but includes some striking achievements. A commission appointed by Teddy Roosevelt influenced creation of the Federal Reserve system. A commission created by Harry Truman shaped the Marshall Plan. A commission established by Richard Nixon helped lead to an all-volunteer military.
Commissions also inspired sweeping reforms after the 9/11 terrorist attacks, including establishing the Department of Homeland Security, Office of the Director of National Intelligence, and National Counterterrorism Center. Just a few weeks ago, Congress overrode the president’s veto of the annual defense bill; that bill enacted 25 recommendations made by a commission on cybersecurity.
Other commissions have been far less successful in getting their proposals adopted. A commission Lyndon Johnson appointed to examine violence in cities highlighted white racism as a cause of strife; politicians dismissed its recommendations. President George W. Bush appointed a commission to advance his goal of privatizing Social Security — but won no Democratic backing. President Barack Obama formed a commission to reduce national debt; its proposals attracted little support from lawmakers in either party.
Why have some commissions been more successful than others?
Commissions have had the greatest impact after a disaster, scandal or other dramatic government failure. During such crises, elected officials face pressure to determine what went wrong and change policies accordingly, but often do not know or agree on what to do. Commissions can focus the debates, giving policy entrepreneurs help in overcoming obstacles to change. When a commission is created to promote an agenda in the absence of a crisis, government’s status-quo is usually too strong to shake.
After the attack on the Capitol, many observers have a variety of questions about what went wrong, both before and during the riot. That makes it more likely that the commission will make a difference.
The most effective commissions tend to be comprised of Democrats and Republicans of stature who are not currently holding public office; that way, they’re insulated from some of the partisan pressures that make compromise difficult. The five Democrats and five Republicans on the 9/11 Commission, which issued a unanimous final report, had served previously as members of Congress, executive branch officials and governors, but could approach their work on the commission with open minds as private citizens.
Why can’t Congress do this itself?
Since overseeing government performance is one of Congress’s core functions, some might think lawmakers themselves should investigate the Capitol attack. But a commission would possess several advantages over a congressional probe.
First, a congressional investigation would likely be tarnished by partisan infighting, as is true of so much congressional activity today. Before Congress established the 9/11 Commission, the House and Senate intelligence committees conducted their own joint investigation of the Sept. 11 attacks. That inquiry uncovered important intelligence shortcomings that made it easier for the 9/11 hijackers to succeed. But lawmakers split along party lines on questions of blame, and failed to agree on corrective steps.
Second, Congress’s stove-piped committee structure hampers broad investigations. A thorough probe of the Capitol attack would need to examine policing, homeland security, intelligence, the use of social media for incitement and organizing, and criminal accountability, among other issues. No single congressional committee possesses jurisdiction over all these areas. But Congress can give a commission the mandate and expertise needed to cover many bases.
Finally, Congress has other daunting work ahead, including getting the pandemic under control and turning the economy around. A commission would allow lawmakers to devote more attention to these challenges while the attack is probed.
A commission, moreover, would not preclude a Senate impeachment trial focused more narrowly on President Trump’s behavior. To be sure, establishing a commission could allow some GOP senators to say they are doing something about the Jan. 6 attack even as they vote to acquit Trump. But history suggests an independent, bipartisan probe may help enable reforms that can protect the institutions of American democracy from future demagogues and mobs.
Jordan Tama (@ProfJordanTama) is associate professor at the School of International Service at American University and the author of “Terrorism and National Security Reform: How Commissions Can Drive Change During Crises” (Cambridge University Press, 2011).