— Sen. Mike Rounds (R-S.D.), in remarks, May 19
“We need to read the fine print. Even though the commission appears to be balanced, my staff tells me that in fact the majority — the chair, who will be determined by Pelosi and Schumer — control all the staff hiring.”
— Senate Minority Leader Mitch McConnell (R-Ky.), in a news conference, May 18
The House passed a bill to establish an independent commission to investigate the Jan. 6 attack on the U.S. Capitol, similar to the 9/11 Commission that investigated the terrorist attacks of Sept. 11, 2001.
The vote on Wednesday was 252 to 175, with 35 Republicans joining all Democrats in support.
The Jan. 6 commission members would be split equally between Democrats and Republicans. But they would need a staff: investigators, lawyers, aides, the works.
McCarthy, McConnell and Rounds say the bill is unacceptable in its current form because Democrats would have sole discretion to hire all of these staff members. McConnell’s opposition in particular bodes poorly for the bill in the Senate, where 10 Republicans are needed to reach a final vote and avoid a possible filibuster.
These three GOP statements may sound similar, but when we parsed each of them, we wound up giving three different Pinocchio ratings. It’s a good case study in how phrasing and word choices make a difference in fact checks.
President Donald Trump held a rally outside the White House on Jan. 6 and repeatedly urged attendees to march on Congress as lawmakers were certifying President-elect Joe Biden’s victory in the 2020 election. Trump for months had been promoting the lie that rampant voter fraud cost him a winning margin of victory in key states.
“I said something’s wrong here, something is really wrong,” Trump said at the close of his Jan. 6 speech. “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
A mob stormed the Capitol, delaying the vote certification for hours. Many of the rioters have said they were incited by Trump. He denies any responsibility.
The riot that led to five deaths, assaults on about 140 police officers and the evacuation of Congress has already generated more federal criminal cases in a single event than the U.S. District Court in D.C. handled in all of 2020. As of May 6, approximately 440 defendants had been arrested, the Justice Department told CBS News, and federal prosecutors in court filings have said they expect to charge at least 100 more.
The bill (House Resolution 3233) is sponsored by Rep. Bennie Thompson (D-Miss.), the chairman of the House Homeland Security Committee, and co-sponsored by Rep. John Katko (R-N.Y.), the ranking Republican on the panel.
The legislation charges the Jan. 6 commission with investigating the attack and reporting conclusions and recommendations to President Biden and Congress. It would grant subpoena power to the commission and the ability to hold hearings.
The commission’s 10 members would be split evenly between Democrats and Republicans. Two would be appointed by House Speaker Nancy Pelosi (D-Calif.), two by Senate Majority Leader Charles E. Schumer (D-N.Y.), two by McCarthy and two by McConnell. The chairman would be appointed jointly by Pelosi and Schumer; the vice chairman by McCarthy and McConnell.
As for staff appointments, the bill text says “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.”
Katko, a former federal prosecutor, said in a floor speech Wednesday that “this legislation is modeled directly on the legislation that created the 9/11 Commission” and that claims that Democrats would choose all staff members were “simply not true.”
“Another charge I heard was that the commission could be controlled by partisan staff hired unilaterally by the commission chair,” he said. “That is simply not true. Here’s what the bill does: It requires consultation between the chair, appointed by the Democrats, and the vice chair, appointed by the Republicans, for any hiring of staff, and further requires that it be in accordance with rules agreed upon by the commission. The commission creates rules as a team, then they then hire as a team.”
A Republican aide on the House Homeland Security Committee emphasized that the bipartisan commission’s rules would control hiring decisions under the terms of the bill.
“The bill text is identical to language in the 9/11 Commission bill, which allows for the hiring of Commission staff by the Chair, in consultation with the Vice Chair, and in accordance with the rules agreed upon by a majority of the Commission,” the aide said. “This avoids any unilateral action by the Chair by requiring consultation with the Vice Chair and adherence to the internal Commission rules agreed to by a majority of the Commissioners, now equally split among Democrats and Republicans.”
The 9/11 Commission is seen as a model of bipartisan cooperation. Staff positions were split among Republicans and Democrats.
Philip D. Zelikow, who served as the executive director of the 9/11 Commission and is now a professor at the University of Virginia, said the bill language on the appointment of staff members to the Jan. 6 commission was identical to the bill language Congress used in establishing the 9/11 Commission. (One difference in the bills, Zelikow said, is that the 9/11 Commission legislation gave President George W. Bush the power to select the chair, but the Jan. 6 bill gives that power to Pelosi and Schumer rather than Biden.)
“The 9/11 setup worked, in our case, because of the quality of the partnership between chair and vice chair,” Zelikow said, referring to former New Jersey governor Thomas H. Kean (R) and former congressman Lee H. Hamilton (D-Ind.).
“That quality was, in turn, the product perhaps of another historical incident: The original 9/11 chair and vice chairs were Henry Kissinger and former senator George Mitchell,” Zelikow added. “It is not clear how well they would have worked together, because both resigned shortly after they were appointed. President Bush then chose former governor Tom Kean as the chair; Democratic congressional leaders then chose Lee Hamilton. Their partnership was exemplary, from the start.
“And, in the appointment of the executive director, the Bush White House suggested a candidate to Kean, a proposal Kean told me he rejected. It was actually Hamilton, who did not have the formal power, who suggested appointing me in that role. After meeting with me, Kean very much welcomed and accepted Hamilton’s suggestion. In selecting other staff, I had an important role, but always with the approval of both Kean and Hamilton, working together. My deputy, Chris Kojm, was someone who had long worked for Hamilton. My general counsel, Dan Marcus, had just come out of the Clinton administration’s Justice Department.”
Kean said he set a rule that no staff hires could be actively working on political campaigns. He ended up turning down six or seven recommended candidates, “because I Googled them.” He said that Zelikow — who later served as counselor to Secretary of State Condoleezza Rice during Bush’s second term — was considered a Republican appointment and that he allowed Democrats to pick the general counsel.
Kean added that he did not believe the statute enacted by Congress and Bush to establish the 9/11 Commission forced him to defer to Democrats on staff appointments, though he did defer on several key roles and collaborated with Hamilton on such decisions.
“I thought I had full power, and Lee thought I had full power, because he came from Congress, and in Congress the committee chairman has all the power and the vice chairman doesn’t,” Kean said.
Representatives for Rounds, who previously supported the creation of a Jan. 6 commission, did not respond to a request for comment. His claim that the commission staff “would only be appointed by the Democrat chairman and that Republicans would not have a say in that” is the most suspect out of all three.
Whether it is an important say or a meager one, the bill text clearly gives a say to Republicans by requiring “consultation” with the vice chair on staff appointments and by requiring that staff hires be conducted “in accordance” with the rules set by the evenly divided members of the commission.
Representatives for McCarthy did not respond to a request for comment. The House GOP leader was slightly more careful in his remarks on Fox News. He said: “The appointment of the chair goes to Schumer and Pelosi and they appoint the staff. All the staff would be Democrats.” This is not what the bill text says, and the conclusion McCarthy reached is speculative. What if a chairperson like Kean was selected by Democrats? The bill language on staff appointments is identical to that used for the 9/11 Commission, so it’s easy enough to envision that staff hiring decisions could follow the same bipartisan framework.
A spokesman for McConnell said his remarks were accurate. Of the three, McConnell was the most careful with his statements. He said that Democrats would “control all the staff hiring,” whereas McCarthy and Rounds went further by suggesting Democrats would “appoint” all the staff.
“The bill makes the chairman the exclusive decision-maker with regard to staffing,” McConnell spokesman David Popp said. “The ‘in consultation with’ language imposes no substantive restrictions on the exercise of this power. It imposes a limited procedural restriction — the chairman must ‘consult’ with the vice chairman in the course of the chairman’s decision-making process. But the language gives the vice chairman no authority of any kind. If, during the course of consultation, the vice chairman objects to the chairman’s staffing decisions, the bill doesn’t require the chairman to honor the vice chairman’s objections. The chairman will have satisfied the consultation requirement by consulting with the vice chairman and can proceed to ignore everything the vice chairman says. This language represents an intentional choice to deposit exclusive authority in the chairman. Congress uses ‘in consultation with’ language when it wants a decision-maker to consider someone’s view during the decision-making process while still retaining exclusive decision-making authority.”
What about the other requirement in the bill, that staff hiring decisions be made “in accordance with the rules agreed upon” by the commissioners (five Democrats and five Republicans)?
Popp said: “Similarly, the ‘subject to’ language doesn’t constrain the chairman unless the majority of the commission enacts rules restraining the chairman’s staffing power before the chairman makes any staffing decisions. In the absence of such rules — which would require the affirmative vote of at least one commissioner of the chairman’s own party to enact — the chairman is not ‘subject to’ anything and his or her authority is therefore untrammeled.”
The bill text does not say a deadlock by commission members on a vote to set the rules would give the chairman unilateral power to make all staff hiring decisions.
“The lawyers emphasize to me that it is the chairman who gets final decision-making authority if they are deadlocked after ‘consultation’ — so, again, the Leader is not wrong,” Popp said. As for the process followed by the 9/11 Commission, Popp dismissed that as any sort of precedent: “Their decisions, over 20 years ago, have nothing to do with this.”
The Pinocchio Test
The senator claimed that under the terms of the bill to establish a Jan. 6 commission, staff members “would only be appointed by the Democrat chairman and that Republicans would not have a say in that.”
The first part of his statement is speculative at best, as no one knows who the chair would be or how they would conduct staff hiring decisions. Kean, a Republican who chaired the 9/11 Commission, conducted the staff hiring process in tandem with Hamilton, a Democrat.
Although Kean said he believed he had sole discretion on staff hiring decisions, he deferred to Democrats on key appointments, including the executive director and general counsel. Twenty years later, the bill language on staff hiring decisions is identical in the Jan. 6 commission bill.
The second part of Rounds’s statement is false. The bill specifically gives a say to Republicans by requiring consultation with the vice chairman and by requiring that staff hiring decisions be made “in accordance with rules agreed upon by the commission,” which would be split between five Democratic and five Republican appointments.
Whether that is a meaningful say or not, the fact remains that it is in the bill, in two different forms. He earns Four Pinocchios.
McCarthy said: “Remember, this commission, the appointment of the chair goes to Schumer and Pelosi and they appoint the staff. All the staff would be Democrats.” We shaved off one Pinocchio because he did not claim, as Rounds did, that Republicans would be left without a say. The rest of his claim is virtually the same. He earns Three Pinocchios.
McConnell said his staff told him that the Democratic majority would “control all the staff hiring.” The word “control” was carefully chosen. McConnell is not saying, as McCarthy and Rounds are, that Democrats would choose all the staff members, only that the ultimate decision-making power rests with the chair. He makes a plausible (if pessimistic) case, but he leaves out some context and assumes that commission members would not adopt rules that gave Republicans a role in staff hiring decisions. That’s speculative.
Once again, the bill would require consultation with the Republican-appointed vice chairman on staff hiring decisions and also stipulates that staff hires be conducted “in accordance with the rules agreed upon” by the evenly bipartisan membership of the commission. McConnell earns Two Pinocchios.
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