On Monday, House Speaker Nancy Pelosi publicly released a discussion draft of legislation to establish a “9/11-type Commission” to investigate the Jan. 6, 2021 Capitol attack. Speaker Pelosi’s Dear Colleague letter confirmed reports that this draft was sent to Republican leadership for feedback last month.
Just Security previously compared two bills already introduced in the House of Representatives that would create an independent commission to investigate the attack on the Capitol. Drawing heavily on the legislation that established the National Commission on Terrorist Attacks Upon the United States (the 9/11 Commission), existing bills and Speaker Pelosi’s discussion draft would all establish a bipartisan commission with a broad mandate to inquire into the circumstances and causes of the Jan. 6 attack, official responses, and government preparedness. In mid to late January, Rep. Rodney Davis (R-IL) introduced H.R. 275, and Rep. Eleanor Holmes Norton (D-DC) introduced H.R. 410. The former currently has 30 cosponsors; the latter has 12. Remarkably, half of the Republican cosponsors of H.R. 275 voted against certifying election results on Jan. 6, 2021. Neither bill is cosponsored by a member of the opposite political party.
Appointment provisions have been a sticking point in discussions surrounding the Jan. 6 Commission. Like the 9/11 Commission, both House bills provide for the equal appointment of commissioners by Democratic and Republican Members of Congress. Under these proposals, no more than five of the ten commissioners can be members of the same political party. Speaker Pelosi’s draft differs significantly from this approach. It calls for an 11-member commission with three commissioners, including the Chair, appointed by the President. The eight remaining appointments would be evenly split between House and Senate leaders of both parties, with the Vice Chair selected by the Republican leaders of the House and Senate. The three appointments that would be filled by President Biden, however, would result in a seven-four breakdown of members appointed by Democrats and Republicans, respectively. One model for an uneven partisan split is the commission created to investigate the 2008 financial crisis.
All proposals give the Commission power to hear testimony, collect evidence, and subpoena witnesses and documents. However, Speaker Pelosi’s proposal specifically limits subpoena enforcement to civil contempt, whereas the earlier bills and the 9/11 Commission simply state that failure to comply may be punished as “contempt of court.” Speaker Pelosi’s proposal also does not include additional enforcement mechanisms – specifically, referral to a U.S. Attorney – that are common to both House bills and the 9/11 Commission. Moreover, Speaker Pelosi’s draft gives subpoena power to the Chair of the Commission, whereas the House bills and 9/11 Commission require the agreement of the Chair and Vice-Chair. In all cases, a subpoena could also be issued following a vote by a majority of the members of the Commission. Notably, under the membership provisions included in Speaker Pelosi’s discussion draft, this means that Democrat-appointed members would always be able to exercise control over the Commission’s subpoena power.
Also similar to the 9/11 Commission, the bills provide for a final report detailing the findings, conclusions, and recommendations for corrective measures that have been agreed to by a majority of the Commission. Both require the final report to be submitted to Congress and the President 18 months after enactment of the legislation. Speaker Pelosi’s proposal instead imposes a deadline of December 31, 2021.
Speaker Pelosi’s proposal is also unique in its inclusion of “congressional findings.” Among other findings, the draft highlights a Department of Homeland Security Bulletin that stated: “[S]ome ideologically-motivated violent extremists with objections to the exercise of governmental authority and the presidential transition, as well as other perceived grievances fueled by false narratives, could continue to mobilize to incite or commit violence.” The addition of this language has been controversial in early discussions of the legislation.
Both Speaker Pelosi’s draft and H.R. 410 include more detail on the facts and circumstances relevant to the investigation. H.R. 410 directs the Commission to consider the “impact, if any, of the race of the attackers on the response of law enforcement,” and “the flow of assets to insurrectionist and domestic terrorist organizations.” Speaker Pelosi’s proposal includes even more specificity, directing the Commission to investigate forces that led to the motivation and organization of the insurrectionists, including technology, online platforms, and foreign influence campaigns. Speaker Pelosi’s draft also details the Commission’s authority to review intelligence, Federal, State, and local law enforcement agency policies for sharing information. Compared to the House bills already introduced, Speaker Pelosi’s proposal includes additional detail with respect to the Commission’s power to obtain official data. It specifically says that the Commission may secure information from any Federal department or agency, “including any underlying information that [may be in the possession of] the intelligence [or law enforcement] community.”
All bills also provide the view of Congress on the experiences and professional backgrounds that appointees to the Commission should possess. While H.R. 410 includes a depth of experience in racial justice as a valuable qualification, H.R. 275 does not. In contrast, H.R. 275 includes expertise in online disinformation, but H.R. 410 does not. Speaker Pelosi’s discussion draft does not explicitly include the terms “racial justice” nor “online disinformation,” but it includes a broader range of experiences than either bill and notes that commissioners should have experience in at least two of the desired areas. As noted above, the draft also provides elsewhere that the Commission will investigate the role of online platforms in “the motivation, organization, and execution” of the attack. In addition to the categories common to existing House bills, Speaker Pelosi’s draft lists civil rights, civil liberties, and privacy; counterterrorism; cybersecurity; and technology. Speaker Pelosi’s draft also dropped “public administration,” which was included in 9/11 Commission legislation and both House bills. H.R. 275, unlike H.R. 410 and Speaker Pelosi’s proposal, would also allow up to two Members of Congress or other officers or employees of the federal government to serve on the Commission. Lastly, the language used to describe the attack differs among the proposals, with H.R. 275 calling the events a “domestic terrorist attack” and H.R. 410 using the phrase “insurrectionist attack.” Speaker Pelosi’s draft adopts the “domestic terrorist attack” language.
The chart below (also available as PDF) details the major provisions of all three 1/6 Commission proposals and the 9/11 Commission legislation. Key differences are in bold.
Chart: Comparing Pelosi’s Draft Legislation on Jan. 6 Commission to Other Bills and Prior Commissions by Just Security on Scribd