A bipartisan negotiation in the House last week encouragingly overcame some of the biggest disagreements with establishing a commission to investigate the January 6 attack on the Capitol. The deal’s arrival in the Senate has now encountered hurdles, but not insurmountable ones.
Questions regarding the scope of the investigation, the composition of commissioners, and how subpoena powers could be used were the major flashpoints preventing the House from moving forward on legislation. House Homeland Security Committee Chairman Rep. Bennie Thompson (D-MS) and Ranking Member Rep. John Katko (R-NY) reached a consensus by modeling the commission on the successful, bipartisan 9-11 commission. The House passed the agreement with a bipartisan vote of 252-175.
Subsequently, Republican senators stated a belief that H.R. 3233 unfairly empowers the chairman of the commission, who would be appointed by the Democratic leaders of the House and Senate. They anticipate that a Democratic-appointed chairman will hire only Democratic-minded staff.
First, it is worth noting that, with the exception of how the leaders of the commission are referred to, the language of H.R. 3233 relevant to staffing mirrors exactly that of the 9-11 commission. The House bill states:
“…the Chairperson, in consultation with the Vice-Chairperson, in accordance with rules agreed upon by the Commission, may appoint and fix the compensation of a Staff Director and such other personnel as may be necessary to enable the Commission to carry out its purposes and functions…”
The 9-11 Commission legislation included this virtually identical wording:
“The chairman, in consultation with vice chairman, in accordance with rules agreed upon by the Commission, may appoint and fix the compensation of a staff director and such other personnel as may be necessary to enable the Commission to carry out its functions…”
Additionally, the actual historical record of the highly regarded 9-11 Commission provides a template for how this arrangement should be executed. Commission Chair Gov. Tom Kean (R-NJ) and Vice Chair Rep. Lee Hamilton (D-IN), who wrote to the president and congressional leaders in February calling for a similar commission, went to painstaking lengths to vet their eventual staff together. Kean commented: recently at a Bipartisan Policy Center event:
“We worked very carefully to find the right staff. We turned down numerous recommendations. I turned down recommendations from White House to start the work. Lee and I would talk about these positions and make sure that every single one of them were top quality people.”
Notwithstanding the indistinguishable language on staffing between the House legislation and 9-11 and the historical operational precedent, two amendments to the House bill would provide additional concrete measures to prevent rank partisanship from permeating the commission’s staff:
First, put into statute what was the informal practice of the 9-11 Commission: allow the vice chair to select the deputy staff director. In hiring the executive director, with Vice Chair Hamilton’s consultation, Chairman Kean selected a national security professional who had a long track record in Republican administrations. When it came time to hire the deputy executive director, the person selected was a national security professional with a long track record working for Democrats, including previously for Vice Chair Hamilton.
Second, disqualify from service a large swath of individuals who may be mostly likely to engage in politics or whose mere participation on the staff would poison the well of goodwill the commission will surely need to establish. This too was an informal practice of the 9-11 Commission that could be formalized in statute. Chairman Kean recently commented that,
“The other thing we decided was that if people had been active in a political campaign recently for either party, that they weren’t qualified to sit on the staff. It didn’t matter what party they belonged to. We didn’t want anybody who had been active very recently in anything political, and therefore, we turned down some good people on those grounds.”
Individuals employed by or who advised recent campaigns, and presidential transitions, perhaps for the last decade, should not be eligible to serve.
Kean and Hamilton’s wise decision could be further extended. Individuals involved in the impeachment trials of President Trump might be disqualified for the sake of independent perspective and to avoid unconscious bias. Also, individuals serving as presidential appointees or in non-career political appointments, including the excepted service, in the Trump and Obama administrations should likewise be ineligible. Many of these positions are filled by individuals whose political views are considerable determinants of their appointment.
Ultimately, whether a January-6 Commission is consumed by partisanship will depend on the leadership of those involved: the chairman and vice chairman, the commissioners, and the staff. Dividing up the staff 50-50 between Democrats and Republicans would undermine a sense of unity and teamwork from the start. Anyone who has worked around Capitol Hill knows the “yours, mine, and ours” nature of committee staff. Congress should want to avoid replicating that dynamic, which would set the committee up for partisanship and potentially failure.
The 9-11 Commission proved that political distractions could be avoided if careful and thoughtful steps are taken and with a commitment to the truth as the ultimate guiding principle. Still, these added precautions would greatly reduce the likelihood of political bias driving the commission’s staff, and should assuage the concerns expressed by some Republican senators about the bipartisan proposal from the House.