Congress is moving closer to the establishment of an independent commission to investigate the January 6 attack on the U.S. Capitol. My research on more than 50 independent commissions can shed light on the optimal design for the commission, the selection of its commissioners, and how those commissioners can best fulfill their mandate.
Speaker of the House Nancy Pelosi is working to build broad support for legislation that would authorize an independent panel to establish the facts and probe the causes of the January 6 riot. Some congressional Republicans have also called for a January 6 commission, though other Republicans have been noncommittal or suggested that an outside investigation is unnecessary. The White House has said that President Joe Biden supports creating a commission on the attack.
An independent investigation is needed to establish a complete and definitive account of the events leading up to and on January 6, and to identify the steps required to safeguard America’s democratic institutions going forward. While some on Capitol Hill argue that Congress can carry out these functions, investigations of the attack by congressional committees are likely to be riven by partisan politics and may fail to come to grips with some of the most important issues raised by the riot. Indeed, this is one of the lessons of efforts to investigate the September 11, 2001 attack nearly two decades ago. Congress established the independent 9/11 Commission in November 2002 in part because of a recognition that congressional investigations of the attacks on the World Trade Center and Pentagon had possessed a limited scope and were marred by the partisan goals of some lawmakers.
The 9/11 Commission went on to be one of the most successful commissions in U.S. history, producing a report that became widely read by the American public (it was a bestseller) and inspiring Congress to enact most of its recommendations into law. Given the obvious parallels between the 9/11 and 1/6 attacks – both involved high-profile acts of terrorism and raised critical questions about how to prevent such violence – it is a good time to consider what lessons can be drawn from the 9/11 Commission, as some of the members of that commission have recently done at Just Security and elsewhere.
Yet the 9/11 Commission does not represent the only relevant precedent, as independent commissions have examined many important and contentious issues over the years. I draw here on my empirical research on several dozen commissions to highlight two of the key factors that will shape the outcome of a January 6 commission: 1) the scope of the commission’s work and 2) the commission’s ability to project bipartisan, or nonpartisan, political credibility.
The Scope of the Commission’s Work
Defining the scope of a commission’s work involves a delicate balancing act. If a commission’s official mandate is very broad, or if a commission chooses itself to pursue a very far-reaching investigation, it might flounder because it lacks focus or becomes embroiled in too many disputes over complex or contentious issues. Commissions with very broad mandates also tend to find it more difficult to get their recommendations adopted, since reforms that span many policy areas require buy-in from more decision-makers and are more likely to generate opposition.
On the other hand, if a commission is given a narrow mandate or adopts a very limited scope for its work, it might not generate a complete understanding of an event and its recommendations might not address some of the most important dimensions of the issue. For instance, some commissions with narrow mandates focus exclusively on shortcomings of individual government agencies, without considering key root causes of a crisis or public policy failure.
When an event strikes at the heart of American democracy, it is essential that a commission tackle the most fundamental issues raised by the attack. In the case of a January 6 commission, it will be imperative for the commission to examine not only the relatively narrow security questions raised by the insurrection, such as the failure of the Capitol Police to prevent the rioters from breaching security barriers, but also to investigate an array of other critical questions. This should include examining how the attack was planned and carried out; the roles and motivations of extremist groups that were involved in it; the use of social media and other digital communications to facilitate it; how and to what extent political leaders inspired or contributed to it; whether foreign governments contributed to it; and what federal, state, and local law enforcement and intelligence agencies knew, did, and failed to do.
Based on a thorough investigation of these questions, the commission should develop a set of recommendations that address the full set of issues raised by the attack. These recommendations should include proposals for nuts-and-bolts reforms, such as changes in how law enforcement and other agencies work to protect government institutions and elected officials. But the commission should also aim higher, seeking, as 9/11 Commissioner Tim Roemer has suggested, to “strengthen our democratic institutions.”
This path will require the commission to identify steps that can help counteract the hate and misinformation that are threatening American democracy and serving as a petri dish for violent extremism. More concretely, the commission could seek to develop recommendations for increasing the accountability of leaders and groups that foment political violence, placing new regulations on social media and technology companies, bolstering state and local electoral systems, and streamlining the processes associated with transitions of power, among other possible outcomes.
The Commission’s Political Credibility
Beyond the substance of their work, the secret sauce of commissions involves their potential to project strong and bipartisan, or nonpartisan, political credibility. Unlike government agencies or congressional committees, commissions lack the capacity to act on their own recommendations. Their power therefore stems entirely from their ability to persuade others – the media, the public, elected officials, and other decision makers – that their ideas are worthy of support. Since the adoption of new policies or reforms usually requires some degree of bipartisanship, it is especially important for a commission to be able to persuade members of both parties that its recommendations are important and sound.
In fact, commissions often excel at bipartisanship, particularly compared to other political institutions. I’ve found that roughly two-thirds of commissions issue unanimous reports, even though the membership of most commissions includes both Democrats and Republicans.
Crucially, though, commissions are more likely to conduct their work in a bipartisan manner and reach consensus on their findings and recommendations when their members are not holding public office or engaged in other political roles during their tenure. When a commissioner is a sitting member of Congress or senior executive branch official, their approach to commission issues may be colored by the interests or positions of their party or administration. When a commissioner does not hold such positions, they are more apt to engage in commission work with an open mind, follow the facts, and seek common ground with their fellow commissioners. That’s the form of bipartisanship that’s required here. The January 6 commission will need an unequivocal commitment to evidence-based fact-finding and political impartiality as a prerequisite for its members and as a core condition of its work.
The willingness of commissioners to reach across party lines is important not only in facilitating a productive investigation and constructive deliberation on a commission, but also in boosting the impact of the commission’s work. Whereas commissions that issue unanimous reports see about half of their most important recommendations get adopted, this figure is only about one-third for commissions that generate dissenting opinions. To be sure, getting recommendations adopted should not be the only standard by which a commission is judged. If a commission makes anodyne recommendations, the adoption of those proposals should not be considered a great achievement. But for commissions that seek to get ambitious recommendations adopted, public unity is usually essential.
Former members of Congress and governors with a track record of working across the aisle therefore tend to be well-equipped to lead commissions effectively. Former senior military officers, diplomats, law enforcement, or intelligence officials with strong reputations in both parties can also be wise choices for commission appointments.
But is bipartisanship on a January 6 commission even possible given the highly polarized nature of today’s political environment? The commission will surely be the target of vitriol from supporters of former President Donald Trump, and will almost certainly face blowback from some other quarters too. But partisan pressures and attacks also strongly buffeted the 9/11 Commission. The commission was able to overcome them due in large part to the collegial, consensus-building approach of its leaders, former New Jersey Governor Tom Kean and former U.S. Representative Lee Hamilton.
To avoid any perceptions of partisan bias, the authorizing charter for the January 6 commission should evenly divide appointment power between Democratic leaders and Republican leaders – for instance, authorizing President Biden and Democratic congressional leaders to name half of the commissioners and authorizing Republican congressional leaders to name the other half. While such a structure runs the risk of having the commission be hamstrung if the Democratic-appointed and Republican-appointed commissioners line up entirely on opposite sides on key issues, this risk is outweighed by the importance of maximizing the commission’s potential bipartisan credibility.
The rubber is likely to hit the road, however, when Republican leaders make their selections of commissioners. Assuming they are both given some appointment power, will Senate Minority Leader Mitch McConnell and House Minority Leader Kevin McCarthy name commissioners who will be willing to follow the facts and support corrective measures even when Trump and his supporters deny or denounce those facts and proposals? If Republican and Democratic leaders appoint commissioners who will be guided solely by the goal of protecting and strengthening the institutions of American democracy, the January 6 commission has the potential to be at least as consequential as the 9/11 Commission.
Image: Mark Wilson/Getty