Proposals for a COVID-19 Congressional January 28, 2021 Advisory Commission in the 116th Congress: A Jacob R. Straus Comparative Analysis Specialist on the Congress Throughout U.S. history, Congress has created advisory commissions to assist in the development of public policy. Among other contexts, commissions haveh ave been used following crisis situations, including the September 11, 2001, terrorist attacks and the 2008 financial crisis. In such situations, advisory commissions may potentially provide Congress with a high -visibility forum to assemble expertise that might not exist within the legislative environment; allow for the in -depth examination of complex, cross -cutting policy issues; and lend bipartisan credibility to a set of findings and recommendations. Others may determine that the creation of an a n advisory commission is unnecessary and instead prefer to utilize existing congressional oversight structures, such as standing or select committees.

This report provides a comparative analysis of fiveeight congressional advisory commissions proposed to datein the 116th Congress that would have investigatedwould investigate various aspects of the COVID-19 outbreak, governmental responses, governmental pandemic preparedness, and the virus'’s impact on the AmericanU.S. economy and society. The overall structures of each of the proposed commissions areEach proposed commission’s structure would have been similar in many respects, both to each other and to previous independent congressional advisory commissions established by Congress. . Specifically, the proposed commissions would have (1) existed(1) exist temporarily; (2) serveserved in an advisory capacity; and (3) reportreported a work product detailing the commission'’s findings, conclusions, and recommendations. That said, each proposed commission hasMany of the proposed commissions also would have had unique elements, particularly concerning its membership structure, appointment structure, and time line for reporting to Congress.

reporting deadlines. Specifically, this report compares and discusses the (1) membership structure, (2) appointment structure, (3) rules of procedure and operation, (4) duties and reporting requirements, (5) commission powers, (6) staffing, and (7) funding of the fiveeight proposed commission structures. The fiveeight proposals are found in were  H.R. 6429 (the National Commission on COVID-19 Act),  H.R. 6431 (the Made in America Emergency Preparedness Act),  H.R. 6440 (the Pandemic Rapid Response Act),  H.R. 6455 (the COVID-19 Commission Act),  H.R. 6548 (the National Commission on the COVID-19 Pandemic in the United States Act),  H.R. 8358 (the National Coronavirus Commission Act),  S. 4132 (the National Commission on the COVID-19 Pandemic in the United States Act), and  S. 4666 (the National Coronavirus Commission Act). None of these proposals advanced beyond introduction and committee referral in the House or the Senate in the 116th Congress. Congressional Research Service link to page 5 link to page 7 link to page 7 link to page 8 link to page 8 link to page 9 link to page 9 link to page 10 link to page 11 link to page 11 link to page 11 link to page 12 link to page 12 link to page 12 link to page 13 link to page 13 link to page 14 link to page 14 link to page 14 link to page 15 link to page 15 link to page 16 link to page 17 link to page 17 link to page 17 link to page 17 link to page 18 link to page 18 link to page 19 link to page 19 link to page 19 link to page 20 link to page 20 link to page 20 link to page 21 link to page 22 link to page 22 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Contents Introduction ................................................................................................................... 1 Membership Structure...................................................................................................... 3 Size of Commission ................................................................................................... 3 Qualifications ........................................................................................................... 4 Compensation of Commission Members ....................................................................... 4 Partisan Limitations ................................................................................................... 5 Appointment Structure ..................................................................................................... 5 Partisan Balance in Appointment Authority ................................................................... 6 Vacancies ................................................................................................................. 7 Deadline for Appointments ......................................................................................... 7 Rules of Procedure and Operations .................................................................................... 7 Chair Selection.......................................................................................................... 8 Initial Meeting Deadline ............................................................................................. 8 Quorum ................................................................................................................... 8 Public Access............................................................................................................ 9 Formulating Other Rules of Procedure and Operations .................................................... 9 FACA Applicability ................................................................................................. 10 Duties and Reporting Requirements ................................................................................. 10 General Duties ........................................................................................................ 10 Reports .................................................................................................................. 11 Report Deadlines ..................................................................................................... 11 Report Submission................................................................................................... 12 Commission Termination .......................................................................................... 13 Commission Powers ...................................................................................................... 13 Hearings and Evidence ............................................................................................. 13 Subpoenas .............................................................................................................. 13 Administrative Support............................................................................................. 14 Other Powers .......................................................................................................... 14 Staffing ....................................................................................................................... 15 Director and Commission Staff .................................................................................. 15 Detailees ................................................................................................................ 15 Experts and Consultants ........................................................................................... 16 Security Clearances ................................................................................................. 16 Funding and Costs......................................................................................................... 16 Comparison of Proposals to Create a COVID-19 Commission ............................................. 17 Tables Table 1. Comparison of 116th Congress Proposals to Create a Congressional Advisory Commission on COVID-19.......................................................................................... 18 Congressional Research Service link to page 35 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Contacts Author Information ....................................................................................................... 31 Congressional Research Service Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Introduction Commission Act), and H.R. 6548 (the National Commission on the COVID-19 Pandemic in the United States Act).

Throughout U.S. history, Congress has created advisory commissions to assist in the development of public policy. Among other contexts, commissions have been used following crisis situations, including the September 11, 2001, terrorist attacks¹attacks1 and the 2008 financial crisis.²2 In such situations, advisory commissions may potentiallypotential y provide Congress with a high-visibility forum to assemble expertise that might not exist within the legislative environment; allowal ow for the in-depth examination of complex, cross-cutting policy issues; and lend bipartisan credibility to a set of findings and recommendations.

As Congress considers its range of responses to the coronavirus pandemic, the creation of one or more congressional advisory commissions is an option that could provide a platform for evaluating evaluating various pandemic-related policy issues over time. Past congressional advisory commissions have retrospectively evaluated policy responses, brought together diverse groups of experts, and supplemented existing congressional oversight mechanisms. Policymakers may determine that creating an advisory commission is unnecessary and instead prefer to utilize existing congressional oversight structures, such as standing or select committees,³3 or already established oversight entities.⁴

4 This report provides a comparative analysis of fiveeight proposed congressional advisory commissions⁵ that would investigatecommissions introduced in the 116th Congress (2019-2020) that would have investigated various various aspects of the COVID-19 pandemic.5 The fiveeight proposed commissions arewere found in  H.R. 6429 (the National Commission on COVID-19 Act, sponsored by Representative Stephanie Murphy),⁶ 6  H.R. 6431 (the Made in America Emergency Preparedness Act, sponsored by Representative Brian Fitzpatrick),⁷ H.R. 64407 1 T he National Commission on T errorist Attacks Upon the United States (P.L. 107-306, §601, 116 Stat. 2408, November 27, 2002). 2 Financial Crisis Inquiry Commission (P.L. 111-21, §5, 123 Stat. 1624, May 20, 2009). 3 For example, H.Res. 935 (116th Congress), agreed to April 23, 2020, established a Select Subcommittee on the Coronavirus Crisis as a select investigative subcommittee of the House Committee on Oversight and Reform. 4 T he CARES Act (P.L. 116-136) created several oversight entities for the implementation of the law. T hese include the Pandemic Response Accountability Committee and the Con gressional Oversight Commission. For more information on these, and other COVID-19 oversight entities, see CRS Insight IN11343, The Pandem ic Response Accountability Com m ittee: Organization and Duties, by Ben Wilhelm; CRS Insight IN11363, Congressional Oversight Provisions in the Paycheck Protection Program and Health Care Enhancem ent Act, by Ben Wilhelm; CRS Report R46315, Congressional Oversight Provisions in the Coronavirus Aid, Relief, and Econom ic Security (CARES) Act (P.L. 116-136), by Ben Wilhelm and William T . Egar; and CRS Insight IN11304, COVID-19 Congressional Oversight Com m ission (COC), by Jacob R. Straus and William T . Egar. 5 For general information on congressional advisory commissions, please see CRS Report R40076, Congressional Com m issions: Overview and Considerations for Congress, by Jacob R. Straus and William T . Egar. 6 H.R. 6429 (116th Congress), introduced April 3, 2020. Rep. Stephanie Murphy, “Murphy, Katko Introduce Bipartisan Bill to Establish 9/11 Style Commission on U.S. Pandemic Preparedness and Response,” press release, April 3, 2020, https://murphy.house.gov/news/documentsingle.aspx?DocumentID=1297. For bill text, see “ National Commission on COVID-19 Act,” at https://murphy.house.gov/uploadedfiles/national_commission_on_covid_19_act.pdf. 7 H.R. 6431 (116th Congress), introduced April 3, 2020. Rep. Brian Fitzpatrick, “Fitzpatrick Intro duces Bipartisan Bill to Prepare for Future National Emergencies,” press release, April 7, 2020, at https://fitzpatrick.house.gov/media-center/in-the-news/fitzpatrick-introduces-bipartisan-bill-prepare-future-national-emergencies. Congressional Research Service 1 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress  H.R. 6440 (the Pandemic Rapid Response Act, sponsored by Representative (the Pandemic Rapid Response Act, sponsored by Representative Rodney Davis),⁸ Rodney Davis),8  H.R. 6455 (the COVID-19 Commission Act, sponsored by Representative Bennie Thompson),⁹ and H.R. 65489  H.R. 6548 (the National Commission on the COVID-19 Pandemic in the United States Act, sponsored by Representative Adam Schiff),10  H.R. 8358 (the National Coronavirus Commission Act, sponsored by Representative Tom Malinowski),11  S. 4132 (the National Commission on the COVID-19 Pandemic in the United States Act, sponsored by Representative Adam Schiff).¹⁰ The overall structures of each of the proposed commissions areSenator Dianne Feinstein),12 and  S. 4666 (the National Coronavirus Commission Act, sponsored by Senator Robert Menendez).13 Additional y, Members introduced legislation that would have created other COVID-related commissions, but none would have had a mandate to broadly evaluate the coronavirus response in the style of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission). These other proposed commissions would have identified regulations that might be hindering the government’s response to COVID-19,14 ensured data equity in the COVID-19 8 H.R. 6440 (116th Congress), introduced April 3, 2020. Rep. Rodney Davis, “Davis Introduces Bipartisan Pandemic Rapid Response Act,” press release, April 3, 2020, at https://rodneydavis.house.gov/news/documentsingle.aspx?DocumentID=403644. 9 H.R. 6455 (116th Congress), introduced April 3, 2020. U.S. Congress, House, Committee on Homeland Security, “Chairman T hompson and Committee Democrats to Introduce Coronavirus Commission Legislation,” press release, April 1, 2020, at https://homeland.house.gov/news/legislation/chairman-thompson-and-committee-democrats-to-introduce-coronavirus-commission-legislation. 10 H.R. 6548 (116th Congress), introduced April 17, 2020. Rep. Adam Schiff, “Schiff Calls for 9/11-Style Commission to Examine Coronavirus Response and Begins Circulating Draft Bill,” press release, April 3, 2020, at https://schiff.house.gov/news/press-releases/schiff-calls-for-9/11-style-commission-to-examine-coronavirus-response-and-begins-circulating-draft-bill. Sens. Dianne Feinstein and Kamala Harris have both announced that they will be cosponsoring companion legislation in the Senate. For more information, see Sen. Dianne Feinstein, “Senate Dems to Introduce Bill Establishing 9/11-Style Coronavirus Commission,” press release, April 10, 2020, at https://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=8FFEB75D-F6BB-4138-BD68-2B5629335340; and Sen. Kamala Harris, “Harris, Senate Dems to Introduce Bill Establishing 9/11-Style Coronavirus Commission,” press release, April 10, 2020, at https://www.harris.senate.gov/news/press-releases/harris-senate-dems-to-introduce-bill-establishing-9/11-style-coronavirus-commission_-. 11 H.R. 8358 (116th Congress), introduced September 23, 2020. Rep. T om Malinowski, “Representative Malinowski Introduced Bipartisan Bill to Create Independent, 9/11 -Style Commission to Assess, Improve Upon COVID-19 Response,” press release, September 23, 2020, at https://malinowski.house.gov/media/press-releases/representative-malinowski-introduces-bipartisan-bill-create-independent -911. 12 S. 4132 (116th Congress), introduced July 1, 2020. Sen. Dianne Feinstein, “Feinstein, Klobuchar, Casey Introduce Bill to Establish 9/11-Style Coronavirus Commission,” press release, July 1, 2020, at https://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=B7074E21-0560-4270-BA6D-21AE13395083. 13 S. 4666 (116th Congress), introduced September 23, 2020. Sen. Bob Menendez, “Menendez, Collins Bill Would Create Independent, 9/11-Style Commission to Assess, Improve upon COVID-19 Response,” press release, September 23, 2020, at https://www.menendez.senate.gov/newsroom/press/menendez-collins-bill-would-create-independent -9/11-style-commission-to-assess-improve-upon-covid-19-response. 14 H.R. 7929 (116th Congress), introduced August 4, 2020; H.R. 8038 (116th Congress), introduced August 14, 2020; and S. 4708 (116th Congress), introduced September 24, 2020. Congressional Research Service 2 link to page 22 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress response,15 and opened the economy.16 Because they would not have studied the COVID-19 response broadly, these commissions are not included in this report. The overal structures of the eight proposed commissions were similar in many respects, both to similar in many respects, both to each other and to previous independent advisory entities established by Congress.¹¹ Specifically, 17 Specifical y, the proposed commissions would have (1) existed(1) exist temporarily; (2) serveserved in an advisory capacity; and (3) reportreported a work product detailing the commission'’s findings, conclusions, and recommendations. That said, each particular proposed commission hasMany of the proposed commissions also had distinctive elements, particularly concerning its membership structure, appointment structure, and time line for reporting its work producttheir work products to Congress.

This report compares the (1) membership structure, (2) appointment structure, (3) rules of procedure and operation, (4) duties and reporting requirements, (5) powers of the commission, (6) staffing issues, and (7) funding for each of the proposed COVID-19 commissions proposed in the 116th Congress. Table 1, . Table 1 (at the end of this report), provides a side-by-side comparison of major provisions of the fiveeight proposals.

Membership Structure

Several matters related to a commission'’s membership structure might be considered. They include the size of a commissioncommission size, member qualifications, compensation of commission memberscommission member compensation, and , and requirements for partisan balance.

Size of Commission

In general, there is significant variation in the size of congressional advisory commissions. Among 155161 identified congressional commissions created between the 101^st101st Congress and the 115^th116th Congress, the median size was 12 members, with the smallestsmal est commission having 5 members and the largest 33 members.¹²

18 The membership structure of each of the fiveeight proposed commissions iswould have been similar to previous independent advisory entities created by Congress. H.R. 6429, , H.R. 6431, , H.R. 6440, and, H.R. 6548 would each create, H.R. 8358, S. 4132, and S. 4666 would have created a 10-member entity.¹³ 19 H.R. 6455 would create would have created a 25-member entity.¹⁴

Qualifications

20 15 H.R. 6585 (116th Congress), introduced April 21, 2020. 16 S. 3699 (116th Congress), introduced May 12, 2020. 17 T wo potential analogous entities are the Commission on Wartime Contracting in Iraq and Afghanistan ( P.L. 110-181, §841, 122 Stat. 230, January 28, 2008) and the National Commission on T errorist Attacks Upon the United States ( P.L. 107-306, §601, 116 Stat. 2408, November 27, 2002). 18 A database search of a variety of relevant terms was conducted using Congress.gov for the 101 st through 116th Congresses (1989-2020) to capture all congressional commissions enacted into law. T he universe of data included all temporary multimember independent entities that (1) existed temporarily, (2) were statutorily created, (3) served in an advisory capacity, (4) were appointed in part or whole by Members of Congress, and (5) reported to Congress. For more information, see CRS Report R45328, Designing Congressional Com m issions: Background and Considerations for Congress, by William T . Egar. 19 H.R. 6429, §4(a); H.R. 6431, §203(a); H.R. 6440, §3(a); H.R. 6548, §2(c); H.R. 8358, §4(a); S. 4132, §2(c); S. 4666, §4(a). 20 H.R. 6455, §2(c). Congressional Research Service 3 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Qualifications Past legislation creating congressional commissions has often required or suggested that Past legislation creating congressional commissions has often required or suggested that commission members possess certain substantive qualifications.¹⁵21 Such provisions arguably make it more likely that the commission is populated with genuine experts in the policy areapolicy experts, which may improve the commission'’s final work product.¹⁶

22 H.R. 6455 would providehave provided that commissioners "shall “shal be a United States person with significant expertise"” in a variety of fields related to public health and public administration.¹⁷23 H.R. 6440, , H.R. 6429, , H.R. 6431, and H.R. 6548 would provide "the sense of Congress", H.R. 6548, H.R. 8358, S. 4132, and S. 4666 would have included a “Sense of Congress” that commission members should be "“prominent U.S. citizens" ” who are nationallynational y recognized experts in a variety of fields relevant to the pandemic and response efforts.¹⁸ efforts.24 In addition, H.R. 6429, , H.R. 6431, , H.R. 6440, and , H.R. 6548 all prohibit, and S. 4132 would have prohibited the appointment of federal, state, and local government employees and officers.¹⁹ 25 H.R. 64556455 would prohibithave prohibited federal employees from being commission members.²⁰

26 H.R. 8358 and S. 4666 would have prohibited federal, state, local, tribal, and territorial government employees from being commission members.27 Compensation of Commission Members

Some congressional commissions have compensated their members. For example, the National Commission on Terrorist Attacks Upon the United States (9/11 9/11 Commission) and the Financial Crisis Inquiry Commission provided that commission members could be compensated at a daily rate of basic pay.²¹28 Nearly all al have reimbursed members for travel expenses. Those that have provided for commissioner compensation most frequently provided compensation at the daily equivalent of level IV of the Executive Schedule.²²

Each of the five proposals would provide29 21 For example, statutory language may require the appointing official to select members who are specifically qualified by virtue of their education, knowledge, t raining, experience, expertise, distinguished service, or recognized eminence in a particular field or fields. For example, legislation establishing the United States Commission on North American Energy Freedom (P.L. 109-58, §1423, 119 Stat. 1064, August 8, 2005) prescribes that nominees for the commission must be “knowledgeable on energy issues, including oil and gas exploration and production, crude oil refining, oil and gas pipelines, electricity production and transmission, coal, unconventional hydrocarbon resources, fuel cells, motor vehicle power systems, nuclear energy, renewable energy, biofuels, energy efficiency, and energy conservation.” 22 In some instances, statutes establishing commissions have either provided for, or prohibited, the service of Members of Congress on commissions. Inclusion of legislators on such panels may help to ensure that Congress will be able to exercise a certain degree of control over commission operations or outcomes. At the same time, commission service by Members is arguably antithetical to two of the rationales for creating a commission in the first place: to reduce the workload of Congress by delegating certain functions to temporary bodies and to produce independent advice. 23 H.R. 6455, §2(c)(2)(A) and §2(c)(2)(D). 24 H.R. 6429, §4(b)(3); H.R. 6431, §203(b); H.R. 6440, §3(b)(3); H.R. 6548, §2(c)(2)(C), H.R. 8358, §4(b)(4)(B); S. 4132, §2(c)(2)(C); S. 4666, §4(b)(4)(B). 25 H.R. 6429, §4(b)(2); H.R. 6431, §203(b); H.R. 6440, §3(b)(2); H.R. 6548, §2(c)(2)(B); S. 4132, §2(c)(2)(B). 26 H.R. 6455, §2(c)(2)(D). 27 H.R. 8358, §4(b)(2); S. 4666, §4(b)(2). 28 P.L. 107-306, §608(a), 116 Stat. 2412, November 27, 2002; P.L. 111-21, §5(f), 123 Stat. 1629, May 20, 2009. 29 An analysis of congressional advisory bodies created since the 101 st Congress indicates that approximately two-thirds did not compensate their members, except to reimburse members for expenses directly related to their service, such as travel costs. Among those that did compensate their members, most provided that the level of compensation would be the daily equivalent of level IV of the Executiv e Schedule. For 2020, level IV of the Executive Schedule was $170,800. For 2021, level IV of the Executive Schedule is $172,500. For more information, see U.S. Office of Personal Management, “Salary T able No. 2020 -EX,” at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2020/EX.pdf; and “ Salary T able Congressional Research Service 4 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Each of the eight proposals would have provided that commission members be compensated at a rate "“not to exceed the daily equivalent of the annual rate of basic pay"” for level IV of the Executive Schedule, "“for each day during which that member is engaged in the actual performance of duties of the Commission."²³”30 Members of threesix proposed commissions would receivehave received travel expenses, including a per diem.²⁴

31 Partisan Limitations

Each proposal providesprovided a limit on the number of members appointed from the same political party. H.R. 6455 would providehave provided that not more than 13 of its 25 members may be from the same party.²⁵ 32 H.R. 6429, , H.R. 6431, , H.R. 6440, and , H.R. 6548 would provide, H.R. 8358, S. 4132, and S. 4666 would have provided that not more than 5 (of 10) members are from the same party.²⁶ 33 Most previous advisory entities created by Congress dodid not impose formal partisan restrictions on the membership structure.²⁷ It may alsomembership restrictions.34 In general, it may be difficult to assess the political affiliation of potential members, who may have no formal affiliation (voter registration, for example) with a political party. Instead of potential members, especial y if they do not have a registered affiliation with a political party. Instead of relying on partisan voter registration, most past advisory commissions usuallyattempted to achieve partisan balance through the appointment structure; for instance, by providing equal (or near-equal) numbers of appointments to congressional leaders of each party.

Appointment Structure

Past congressional commissions have used a wide variety of appointment structures. Considerations regarding appointment structures include partisan balance, filling Appointment structure considerations have included partisan balance, how to fil vacancies, and the time line for making appointments. Some commission statutesfor making commission appointments.

The statutory scheme may directly designate members of the commission, such as a specific cabinetCabinet official or a congressional leader. In othermost cases, selected congressional leaders, often with balance between the parties, appoint commission members. A third common statutory scheme is to have selected leaders, such as committee chairs and ranking members, recommend candidates to congressional leaders for appointment to a commission. These selected leaders or make appointments themselves. The appointers may act either in parallelparal el or jointly, and the recommendation may be made either to otherwhen recommendations are required they have been made to congressional leaders, such as the Speaker of the House and President pro tempore of the Senate, or to the President.

Each of the five commission proposals would delegate most or all appointment authority to congressional leaders (including chamber, party, and committee leaders; see Table 1 for details). Additionally, No. 2021-EX,” at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/21T ables/exec/html/EX.aspx. 30 H.R. 6429, §4(g); H.R. 6431, §208(a); H.R. 6440, §3(d); H.R. 6455, §2(j); H.R. 6548, §2(h)(1), H.R. 8358, §10(a); S. 4132, §2(h)(1); S. 4666, §10(a). 31 H.R. 6429, , §4(h); H.R. 6431, H.R. 6440, and H.R. 6548 provide for one appointment to be made by the President.²⁸ , §208(b); H.R. 6455, §2(j); H.R. 6548, §2(h)(2), H.R. 8358, §10(b); S. 4132, §2(h)(2); S. 4666, §10(b). 32 H.R. 6455, §2(c)(2)(B). 33 H.R. 6429, H.R. 6431, and H.R. 6548 would have the President appoint the commission's chair.²⁹ H.R. 6455 has its membership appointed by the chairs and ranking members of designated House and Senate committees, and the Joint Economic Committee.³⁰ H.R. 6455 does not provide any executive branch appointments.³¹

In general, a commission's appointment scheme can impact both the commission's ability to fulfill its statutory duties and its final work product. For instance, if the scheme provides only for the appointment of Members of Congress to the commission, §4(b)(1); H.R. 6431, §203(b)(1); H.R. 6440, §3(b)(1); H.R. 6548, §2(c)(2)(A), H.R. 8358, §4(b)(1); S. 4132, §2(c)(2)(A); S. 4666, §4(b)(1). 34 T he use of formal partisan membership structures is somewhat more common in executive branch regulatory commissions. For example, the statute establishing the Federal Election Commission (FEC) —an executive branch agency, not an advisory commission—requires that no more than three commissioners may be affiliated with the same political party (52 U.S.C. §30106(a)(1)). For more information on the Federal Election Commission and the partisan balance provision, see CRS Report R45160, Federal Election Com m ission: Mem bership and Policym aking Quorum, In Brief, by R. Sam Garrett . Congressional Research Service 5 link to page 22 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Each of the eight commission proposals would have delegated most or al appointment authority to congressional leaders (including chamber, party, and committee leaders; see Table 1 for details). Additional y, seven proposals—H.R. 6429, H.R. 6431, H.R. 6440, H.R. 6548, H.R. 8358, S. 4132, and S. 4666—would have provided for one presidential appointment.35 H.R. 6429, H.R. 6431, H.R. 6548, H.R. 8358, S. 4132, and S. 4666 would have had the President appoint the commission’s chair.36 H.R. 6455’s membership would have been appointed by the chairs and ranking members of designated House and Senate committees and the Joint Economic Committee.37 H.R. 6455 would not have provided for any executive branch appointments.38 In general, a commission’s appointment scheme can affect both the commission’s ability to fulfil its statutory duties and its final work product. For instance, if the commission’s statute only provides for the appointment of Members of Congress, it arguably might not have the technical expertise or diversity of knowledge to complete its duties within the time given by statute. Similarly, if the appointment scheme includes qualifying provisos so specific that only a small smal set of private citizens could serve on the panel, the commission'’s final work product may arguably only represent a narrow range of viewpoints. None of the proposed COVID-19 commissions specifyspecified whether Members of Congress maymight serve on the commission.

, although each would have prohibited the appointment of federal officers or employees.39 Partisan Balance in Appointment Authority

Most previous congressional advisory commissions have been structured to be bipartisan, with the congressional leaders of the two major parties appointing an even (or near-even) split of appointments between leaders of the two major parties. By achievingnumber of members. By attempting to achieve a nonpartisan or bipartisan character, congressional commissions may make their findings and recommendations more politicallypolitical y acceptable to diverse viewpoints. The bipartisan or nonpartisan arrangement can give recommendations strong credibility, both in Congress and among the public, even when dealing with divisive public policy issues. Similarly, commission recommendations that are perceived as partisan may have difficulty gaining support in Congress.

In some cases, however, bipartisanship also can arguably impede a commission'’s ability to complete its mandate. In situations where a commission is tasked with studying divisive or partisan issues, the appointment of an equal number of majority and minority commissioners may serve to promote partisanship within the commission rather than suppress it, raising the possibility of deadlock where neither side can muster a majority to act.

Each of the fiveeight proposals employs awould have employed an appointment structure where leaders in both the congressional the majority and minority parties in Congress would make appointments. H.R. 6429, H.R. 6431, and H.R. 6548 would providewould have made appointments. H.R. 6429, H.R. 35 H.R. 6429, §4(a); H.R. 6431, §203(a); H.R. 6440, §3(a); H.R. 6548, §2(c)(1); H.R. 8358, §4(a); S. 4132, §2(c)(1); S. 4666, §4(a). 36 H.R. 6429, §4(a); H.R. 6431, §208(a); H.R. 6548, §2(c)(1); H.R. 8358, §4(a) S. 4132, §2(c)(1); S. 4666, §4(a). 37 H.R. 6455, §2(c)(1). T he committees that would have had appointments to the proposed commissions would have been the House Committee on Oversight and Reform, the House Committee on Homeland Security, the House Permanent Select Committee on Intelligence, the House Committee on Energy and Commerce, the House Committee on Foreign Affairs, the House Committee on T ransportation and Infrastructure, the House Committee on Education and Labor, the Senate Committee on Homeland Security and Governmental Affairs, the Senate Committee on Commerce, Science, and T ransportation, the Senate Select Committee on Intelligence, the Senate Committee on Health, Education, Labor, and Pensions, the Senate Committee on Foreign Relations, and the Joint Economic Committee. 38 H.R. 6455, §2(c)(1). 39 H.R. 6429, §4(b); H.R. 6431, §203(b); H.R. 6440, §3(b); H.R. 6455, §2(c)(2)(A); H.R. 6548, §2(c)(2); H.R. 8358, §4(b)(2)(B); S. 4132, §2(c)(2); S. 4666, §4(b)(2)(B). Congressional Research Service 6 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress 6431, H.R. 6548, H.R. 8358, S. 4132, and S. 4666 would have provided for five majority and five minority appointments, including one for the President.³² 40 H.R. 6440 would include twohave included two appointments each by the Senate majority leader, the Senate minority leader, and the Speaker of the House, with one appointment by the House minority leader and one by the President, and; the chair would have been appointed by the Speaker and the vice chair would have been appointed by the Senate majority leader.³³ 41 H.R. 6455 would have had 12 majority and 12 minority appointments made by the 12 committee chairs and ranking members and one memberof specified committees, and one member would have been jointly appointed by the chair and vice chair of the Joint Economic Committee.³⁴

Vacancies

All five proposals provide Committee.42 Vacancies Al eight proposals would have provided that vacancies on the commission willwould not affect its powers and would be filledhave been fil ed in the same manner as the original appointment.³⁵

Deadline for Appointments

Three of the bills propose Four of the bil s proposed specific deadlines for the appointment of commissioners. H.R. 6429 and , H.R. 6548 provide, and S. 4132 would have required that appointments arewere made between specific dates in January or February 2021.³⁶ Further, H.R. 6429 provides would have provided that commission members could behave been appointed in September 2020, if there iswas no longer a COVID-19 public health emergency in effect—as determined by the Secretary of Health and Human Services—as of August 31, 2020.³⁷ H.R. 6440 would require all appointments would have required al appointments to be made by December 15, 2020.³⁸ H.R. 6455 would requirehave required appointments to be made within 45 days afterof enactment.³⁹ H.R. 8358 and S. 4666 would have required appointments to have been made within 30 days “after the date of the expiration of the public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Service Act (42 U.S.C. §247d) on January 31, 2020, with respect to COVID-19, and not earlier than such date of expiration.” H.R. 6429, , H.R. 6440, and H.R. 6548 would starthave started the commission'’s work in early 2021. early 2021, as the commission cannot operate without the appointment of members.⁴⁰ H.R. 6429, however, would providehave provided that the proposed commission'’s work would beginhave begun no later than October 31, 2020, if members arehad been appointed in September 2020.⁴¹ 2020. H.R. 6431 does not specify a deadline for the appointment of members.

Typically did not specify an appointment deadline. Typical y, deadlines for appointment can range from several weeks to several months after enactment. For example, the deadline for appointments to the Antitrust Modernization Commission was 60 days after the enactment of its establishing act.⁴² The deadline for appointment to the Commission on Wartime Contracting in Iraq and Afghanistan was 120 days from the date of enactment.⁴³ The deadline for appointment to the 9/11 Commission was December 15, 2002, 18 days after enactment of the act.⁴⁴

Rules of Procedure and Operations

While most statutes that authorize congressional advisory commissionscommission statutes do not provide detailed procedures for how the commission should conduct its business, the statutory language may provide a general structure, including a mechanism for selecting a chair and procedures for creating rules. None of the eightthe five COVID-19 commission proposals containcontained language that directs the process for potentiallywould have directed the 40 H.R. 6429, §4(a); H.R. 6431, §203(a); H.R. 6548, §2(c)(1); H.R. 8358, §4(a); S. 4132, §2(c); S. 4666, §4(a). 41 H.R. 6440, §3(a). 42 H.R. 6455, §2(c)(1). Congressional Research Service 7 link to page 22 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress process for potential y adopting rules of procedure. For a comparison of each proposed commission' commission’s specified rules of procedures and operations, seesee Table 1.

Chair Selection

Each bill provides Each bil would have provided for the selection of a chair and/or vice chair of the commission. H.R. 6429, , H.R. 6431, and H.R. 6548 would have , H.R. 6548, H.R. 8358, S. 4132, and S. 4666 would have had the chair appointed by the President and the vice chair appointed by congressional leaders of the political party opposite the President.⁴⁵ 43 H.R. 6440 would have had the chair appointed by the Speaker of the House (in consultation with the Senate majority leader and the House minority leader) and the vice chair appointed by the Senate majority leader (in consultation with the Speaker of the House and the Senate minority leader).⁴⁶ 44 H.R. 6455 would have had the chair and vice chair chosen from among commission members by a majority vote of the commission, and would requirehave required the the chair and vice chair to have "“significant experience"” in areas to be studied by the commission.⁴⁷

45 Initial Meeting Deadline

As with the timing of commission appointments, some authorizing statutes are prescriptive in when the commission'’s first meeting should take place. Three of the bills analyzed here provide bil s would have provided specific time lines for the commission'’s first meeting. H.R. 6429 would requirehave required the first meeting to be no later than March 15, 2021, unless members arehad been appointed in September 2020 (if no public health emergency exists).⁴⁸ existed).46 H.R. 6455, H.R. 8358, and S. 4666 would have requiredH.R. 6455 would require the first meeting within 45 days after the appointment of all al commission members.47 H.R. 6548, H.R. 6431, H.R. 6440, and S. 4132 would have directed the commission to hold its initial meeting “as soon as practicable,”48 but H.R. 6548 would have also required that the first meeting not occurcommission members,⁴⁹ which is—given the 45-day deadline for appointment—effectively a maximum of 90 days after enactment. H.R. 6548 would direct the commission to hold its initial meeting "as soon as practicable," but not later than March 5, 2021.⁵⁰ later than March 5, 2021.49 H.R. 6431 and H.R. 6440 do did not provide for an initial initial meeting deadline. Instead, they directwould have directed the commission to meet "“as soon as practicable."⁵¹

practicable.” Quorum Quorum

Most commission statutes provide that a quorum will consist of a particular number of commissioners, usually a majority, but occasionally a supermajority. All five bills would provide fordefine a quorum for commission business. Usual y, this is defined as a majority of commission members, but occasional y the statute requires a supermajority. Al eight bil s would have established a quorum requirement. H.R. 6429, , H.R. 6431, , H.R. 6440, and H.R. 6548 would define, H.R. 6548, H.R. 8358, S. 4132, and S. 4666 would have defined a quorum as 6 (of 10) members.⁵² 50 H.R. 6455 would provide would have required that a quorum iswas 18 of 25 members (72%).⁵³

Public Access

All five commission bills would require51 43 H.R. 6429, §4(a)(1)-(2); H.R. 6431, §203(a)(1)-(2); H.R. 6548, §2(c)(1)(A)-(B); H.R. 8358, §4(a); S. 4132, §2(c); S. 4666, §4(a). 44 H.R. 6440, §3(a)(1)-(2). 45 H.R. 6455, §2(d). 46 H.R. 6429, §4(e). 47 H.R. 6455, §2(e); H.R. 6431, §203(b)(4); H.R. 6440, §3(b)(5); H.R. 8358, §4(c)(1); S. 4666, §4(c)(1). 48 H.R. 6548, §2(c)(2)(E); S. 4132, §2(c)(2)(E). 49 H.R. 6548, §2(c)(2)(E). 50 H.R. 6429, §4(f); H.R. 6431, §203(c); H.R. 6440, §3(c); H.R. 6548, §2(c)(3); H.R. 8358, §4(c)(3); S. 4132, §2(j); S. 4666, §4(c)(3). 51 H.R. 6455, §2(f). Congressional Research Service 8 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Public Access Al eight commission bil s would have required commission meetings to be open to the public.52 Each bil would also have required that reports were commission meetings to be open to the public.⁵⁴ Each bill would also require that reports be made publicly available.⁵⁵

53 Formulating Other Rules of Procedure and Operations

Absent statutory guidance (eithereither in general statutes or in individual statuteslaw or in the commission’s authorizing commissions), advisory entities varylegislation), advisory commissions have varied widely in how they adopt their rules of procedure. In general, three models exist: formal written rules,⁵⁶54 informal rules,⁵⁷55 and the reliance on norms.⁵⁸ Any individual 56 Any individual advisory entity might make use of all al three of these models for different types of decisionmaking.

decisionmaking. The choice to adopt written rules or rely on informal norms to guide commission procedure may be based on a variety of factors, such as the entity'’s size, the frequency of meetings, member preferences regarding formality, the level of collegiality among members, the commission’s duration, and the amount of procedural guidance provided by the entity'’s authorizing statute. Regardless of how procedural issues are handled, protocol for decisionmaking regarding the following several operational issues may be important for the commission to consider at the outset of its existence: eligibility to vote and. These include proxy rules; staff hiring, compensation, and work assignments; hearings, meetings, and field visits; nonstaff expenditures and contracting; reports to Congress; budgeting; and procedures for future modification of rulesrules modification. None of the fiveeight COVID-19 commission proposals specify that the proposed commission must adopt written rules.

would have specified that the proposed commissions would be required to adopt written rules. 52 H.R. 6429, §6(b)(1); H.R. 6431, §206(b)(1); H.R. 6440, §5(d)(1); H.R. 6455, §2(h); H.R. 6548, §2(f)(2)(A) and §2(f)(3); H.R. 8358, §7(b)(1); S. 4132, §2(f)(2)(A); S. 4666, §7(b)(1). 53 H.R. 6429, §6(b)(2); H.R. 6431, §206(b)(2); H.R. 6440, §5(d)(2); H.R. 6455, §2(h); H.R. 6548, §2(f)(2)(B); H.R. 8358, §7(b)(2); S. 4132, §2(f)(2)(B); S. 4666, §7(b)(2). 54 Some advisory entities choose to formalize their procedures for meetings and hearings. For example, the United States-China Economic and Security Review Commission (P.L. 106-398, §1238, 114 Stat. 1654A-334, October 30, 2000) established written rules of procedure for the conduct of both meetings of the commission and hearings held by the commission. T he rules include procedures for the selection of chairs, proxy use, budget ing, expenditures of money, hiring and firing of staff, commissioner ethics, and periodic revision of the rules. For more information, see United States-China Economic and Security Review Commission, Com m ission Rules, adopted June 6, 2003. 55 Some advisory entities adopt a set of processes for establishing rules piecemeal as the need arises. For example, the National Surface T ransportation Policy and Revenue Commission ( P.L. 109-59, §1909(b), 119 Stat. 1471, August 10, 2005) did not establish formal written rules of procedure. However, the members of the commission did take occasional votes to clarify a particular meeting’s procedures. For example, at the first meeting of the c ommission, members voted by simple majority as to whether future votes of commission members could be conducted by proxy. Information on the National Surface T ransportation Policy and Revenue Commission rules comes from an interview conducted by Matthew E. Glassman, former CRS analyst, with Susan Binder, former executive director, National Surface T ransportation Policy and Revenue Commission on July 10, 2008. 56 Many advisory entities choose not to create formal rules for commission meetings or hearings. Instead, they rely on a collegial relationship between members and staff, and conduct the meetings in a procedurally flexible manner. In some cases, deference to the wishes of the chair is followed for procedural matters. For instance, the Congressional -Executive Commission on China reportedly does not operate within a system of formal rules of procedure. Commission members make collective agreements about operational issues such as the recording of minutes or voting procedure, but these agreements are created and enforced by collective norms and collegial interactions, not formal action or votes. Information on the Congressional-Executive Commission on China’s procedures comes from an interview conducted by Matthew E. Glassman, former CRS analyst, with Douglas Grob, staff director, July 10, 2008. Congressional Research Service 9 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress FACA Applicability FACA Applicability

The Federal Advisory Committee Act (FACA) mandates certain structural and operational requirements, including formal reporting and oversight procedures, for certain federal advisory bodies that advise the executive branch.⁵⁹ Three proposals (57 Six proposed commissions (H.R. 6429, , H.R. 6431, and, H.R. 6548) specifically exempt, H.R. 8358, S. 4132, and S. 4666) would have specifical y exempted the proposed commission from FACA.⁶⁰58 Of the remaining two, FACA would also likely not apply not have applied to the commission proposed in H.R. 6455 because it would beits membership would have been appointed entirely by Members of Congress, although it only specifiesthe language would have only required that its final report iswas public, not whether it is specificallywould have been specifical y sent to Congress and/or the President.⁶¹ It is not clear that FACA would apply to the commission proposed in H.R. 6440. Although it includes59 For the commission proposed by H.R. 6440, it is not clear that FACA would have applied. Although H.R. 6440 would have included a presidential appointment and its report would behave been sent to both Congress and the President,⁶²60 its establishment clause specifieswould have specified that the commission "“is established in the legislative branch,”61 and that Congress would have appointed a super-majority of its members.62 branch,"⁶³ and a super-majority of its members would be appointed by Congress.⁶⁴

Duties and Reporting Requirements

Most congressional commissions are generallygeneral y considered policy commissions—temporary bodies that study particular policy problems and report their findings to Congress or review a specific event.⁶⁵

63 General Duties

All five Al eight of the proposed commissions would behave been tasked with duties that are analogous to those of past policy commissions. While the specific mandates differ somewhat, all proposed commissions arewould have differed somewhat, al eight proposed commissions would have been tasked with investigating aspects of the COVID-19 pandemic and submitting one or more reports that includeincluded the commission'’s findings, conclusions, and recommendations for legislative action.⁶⁶ 64 Further, H.R. 6440 would specifically require would have specifical y required the commission to avoid unnecessary duplication of work being conducted that might be done by the Government Accountability Office (GAO), congressional committees, and executive branch agency and independent commission investigations.⁶⁷

Reports

Each proposed commission would be65 57 For more information about the Federal Advisory Committee Act (FACA), see CRS Report R44232, Creating a Federal Advisory Com m ittee in the Executive Branch , by Meghan M. Stuessy. 58 H.R. 6429, §6(a); H.R. 6431, §206(a); H.R. 6548, §2(f)(1); H.R. 8358, §7; S. 4132, §2(f)(1); S. 4666, §7. 59 H.R. 6455, §2(b)(4). 60 H.R. 6440, §3(a) and H.R. 6440, §7. 61 H.R. 6440, §2. 62 H.R. 6440, §3(a). 63 For more information on policy commissions, see CRS Report R40076, Congressional Commissions: Overview and Considerations for Congress, by Jacob R. Straus and William T . Egar. Other commissions are commemorative commissions—entities established to commemorate a person or event, often to mark an anniversary. For more information on commemorative commission, see CRS Report R41425, Com m emorative Com missions: Overview, Structure, and Funding, by Jacob R. Straus. 64 H.R. 6429, §3; H.R. 6440, §4; H.R. 6455, §2(b); H.R. 6548, §2(d). 65 H.R. 6440, §4(b). Congressional Research Service 10 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Reports Each proposed commission would have been tasked with issuing a final report detailing its tasked with issuing a final report detailing its findings, conclusions, and recommendations.⁶⁸ 66 H.R. 6429, , H.R. 6431, , H.R. 6440, and H.R. 6548 would provide, H.R. 6548, H.R. 8358, S. 4132, and S. 4666 would have specified that the commission "“may submit"” interim reports to Congress and the President, but do not providewould not have provided time lines on when those interim reports might be submitted. In each case, the interim report would need to be agreed to by a majority of commission members.⁶⁹ a majority of commission members would have had to agree to the interim report.67 H.R. 6431 would have also requiredalso require the commission to submit a report on actions taken by the states⁷⁰states68 and a report on essential products, materials, ingredients, and equipment required to fight pandemics.⁷¹

69 H.R. 6429, , H.R. 6431, , H.R. 6440, and H.R. 6548 also specify that final reports shall, H.R. 6548. H.R. 8358, S. 4132, and S. 4666 also would have specified that the commission’s final report would have needed to be agreed to by a majority of commission members.⁷² 70 H.R. 6455 does did not specify a vote threshold for approval of its report.⁷³

None of the bills make specific provisions for the inclusion of minority viewpoints. Presumably this would leave71 None of the bil s would have specifical y required the inclusion of minority viewpoints in the final report. Presumably, this would have left each commission with discretion on whether to include or exclude minority viewpoints. Past advisory entities have been proposed or established with a variety of statutory reporting conditions, including the specification of majority⁷⁴majority72 or super-majority rules for report adoption⁷⁵adoption73 and provisions requiring the inclusion of minority viewpoints.⁷⁶74 In practice, advisory bodies that are not given statutory direction on these matters have tended to work under simple-majority rules for report adoption.

Report Deadlines

H.R. 6429 would requirehave required a final report one year after the commission'’s initial meeting.⁷⁷75 H.R. 6431 and H.R. 6440 would requirehave required a final report not later than 18 months after enactment.⁷⁸ 76 H.R. 6455 would requirehave required a final report to be published not later than 18 months after the commission'’s first meeting.77 S. 4132 would have required a final report by August 21, 2022.78 66 H.R. 6429, §9; H.R. 6440, §7; H.R. 6455, §2(b)(4); H.R. 6548, §2(j). 67 H.R. 6429, §9(a); H.R. 6431, §210(a); H.R. 6440, §7(a)(1); H.R. 6548, §2(j)(1); H.R. 8358, §12(a); S. 4132, §2(j)(1); S. 4666, §12(a). 68 H.R. 6431, §210(d). 69 H.R. 6431, §210(c). 70 H.R. 6429, §9(b); H.R. 6431, §210(b); H.R. 6440, §7(a)(2); H.R. 6548, §2(j)(2); H.R. 8358, §12(b); S. 4132, §2(j)(2); S. 4666, §12(b). 71 H.R. 6455, §2(b)(4). 72 For example, see National Commission on the Cost of Higher Education ( P.L. 105-18, §40002, 111 Stat. 207, June 12, 1997) and Commission on the Prevention of Weapons of Mass Destruction Proliferation and T errorism ( P.L. 110-53, §1851, 121 Stat. 501, August 3, 2007). 73 For example, see the proposed Bipartisan T ask Force for Responsible Fiscal Action, S. 2063 (110th Congress), which would require a three-fourths approval of the commission for the adoption of the final report. 74 For example, see Human Spaceflight Independent Investigation Commission ( P.L. 109-155, §821, 119 Stat. 2941, December 30, 2005). 75 H.R. 6429, §9(b). 76 H.R. 6431, §210(b); H.R. 6440, §7(a)(2). 77 H.R. 6455, §2(b)(4). 78 S. 4132, §2(j)(1). Congressional Research Service 11 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress H.R. 6548 would have required a final report by October 15, 2021,79 and H.R. 8358 and S. 4666 would have required a final report within 18 months of the appointment of al commission members.80 For H.R. 6548, H.R. 8358, and S. 4666, the commission could have extended the reporting deadline, if necessary. For H.R. 6548, the extension could have been for 90 days,s first meeting.⁷⁹

H.R. 6548 would require a final report by October 15, 2021. This deadline could be extended by 90 days upon a vote of no fewer than 8 (out of 10) commission members. The commission could vote to extend itscommissioners. For H.R. 8358 and S. 4666, the extension could have been for 60 days, upon a vote of no fewer than 6 (out of 10) commissioners. Al three commissions could have voted to extend the final report deadline up to three times, and would be have been required to notify Congress, the President, and the public of any such extension.⁸⁰

While such a deadline would potentially give the 81 While statutorily requiring a report on a specific date would have potential y given the commission a defined period of time to complete its work, setting a particular date for report completion could potentially createhave created unintended time constraints. Any delay in the passage of the legislationlegislation, or in the appointment process would reduce, could have reduced the amount of time the commission hashad to complete its work, even with the opportunity for the commission to extend its own deadline up to three times.⁸¹

have potential y extended its deadline.82 The length of time a congressional commission has to complete its work is arguably one of the most consequential decisions when designing an advisory entity. If the entity has a short window of time, the quality of its work product may suffer or it may not be able to fulfill fulfil its statutory mandate on time.

A short deadline may also affect the process of standing up a new commission. The selection of commissioners, recruitment of staff, arrangement of office space, and other logistical matters may require expedited action if short deadlines need to be met. On the other hand, if the commission is given a long period of time to complete its work, it may undermine one of a commission'’s primary legislative advantages, the timely production of expert advice on a current matter. Report Submission Most congressional advisory commissions are required to submit their reports to Congress, and sometimes to the President or an executive department or agency head. For example, the National Commission on Severely Distressed Public Housing’s final report was submitted to both Congress and the Secretary of Housing and Urban Development.83 Of the eight proposed commissions, seven (current matter. A short deadline may also affect the process of standing up a new commission. The selection of commissioners, recruitment of staff, arrangement of office space, and other logistical matters may require expedited action if short deadlines need to be met.

Report Submission

Of the five proposed commissions, four (H.R. 6429, , H.R. 6431, , H.R. 6440, and H.R. 6548) are, H.R. 6548, H.R. 8358, S. 4132, and S. 4666) would have been directed to submit their reports to both Congress and the President.⁸² 84 H.R. 6455 requires, H.R. 8358, S. 4132, S. 4666 would have required that the report is was made public.85 79 H.R. 6548 §2(j)(3). 80 H.R. 8358, §12(b); S. 4666, §12(b). 81 H.R. 6548 §2(j)(3); H.R. 8358, §12(b); S. 4666, §12(b). 82 H.R. 6548 §2(j)(3)(B). 83 P.L. 101-235, §504(d), 103 Stat. 2051, December 15, 1989. 84 H.R. 6429, §9(b); H.R. 6431, §210(b); H.R. 6440, §7(a)(2); H.R. 6548, §2(j)(2); H.R. 8358, §12(b); S. 4132, §2(j)(2); S. 4666, §12(b). 85 H.R. 6455, §2(b)(4); H.R. 8358, §7(b)(2); S. 4132, §2(f)(2)(B); S. 4666, §7(b)(2). Congressional Research Service 12 link to page 22 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress made public.⁸³

Commission Termination

Commission Termination Congressional commissions are usuallyusual y statutorily mandated to terminate. Termination dates for most commissions areare often linked to either a fixed period of time after the establishment of the commission, the selection of members, or the date of submission of the commission'’s final report. Alternatively, some commissions are given fixed calendar termination dates.

All fiveterminated on a specific calendar date. Al eight commission proposals would providehave provided for the commission to terminate within a certain period of time following submission of its final report. Five commissions would have terminated 60 days after final report submission (H.R. 6429, , H.R. 6431, , H.R. 6440, and , H.R. 6455, and S. 4132); one commission (H.R. 6548) would have terminated 90 days after H.R. 6455 would each direct the commission to terminate 60 days after the submission; H.R. 6548 specifies a time line of 90 days after submission.⁸⁵

submission; two proposals (H.R. 8358 and S. 4666) would have specified that the commission must terminate within 120 days after the final report is submitted.86 Commission Powers Each of the eight bil s would have providedCommission Powers

Each of the five proposals would provide the proposed commission with certain powers to carry out its mission (seesee Table 1 for specifics). One general issue for commissions is who ismight be authorized to execute such specified powers. In some cases, the commission itself executes its powers, with the commission deciding whether to devise rules and procedures for the general use of such power. In other cases, the legislation specificallyspecifical y authorizes the commission to give discretionary power to subcommittees or individual commission members.⁸⁶ Finally, the legislation 87 Final y, the legislation itself might grant certain powers to individual members of the commission, such as the chair.⁸⁷

Hearings and Evidence

All five bills would provide chair.88 Hearings and Evidence Al eight bil s would have provided the proposed commission with the power to hold hearings, take testimony, and receive evidence.⁸⁸ All five89 Al eight commissions would also behave been provided the power to administer oaths to witnesses.⁸⁹

Subpoenas

Four of the bills would provide90 Subpoenas Seven of the bil s would have provided the commission with subpoena power. H.R. 6440 would not have providednot provide subpoena power to the commission. H.R. 6429, , H.R. 6431, and H.R. 6548 would provide that subpoenas could only be issued by either , H.R. 6548, H.R. 8358, S. 4132, and S. 4666 would have provided that subpoenas could only be issued by either 86 H.R. 6429, §9(c); H.R. 6431, §210(e); H.R. 6440, §7(b); H.R. 6455, §2(l); H.R. 6548, §2(k); H.R. 8358, §12(d); S. 4132, §2(k); S. 4666, §12(d). 87 For example, the National Commission on Defense and National Security ( P.L. 101-511, §3, 104 Stat. 1899, November 5, 1990) provided that “Any member or agent of the Commission may, if so authorized by the Commission, take any action which the Commission is authorized to take by this section” [§8(b)]. 88 For example, the Women’s Progress Commemoration Commission (P.L. 105-341, §3, 112 Stat. 3197, October 31, 1998) provided that “The Commission may secure directly from any Federal department or agency such information as the Commission considers necessary to carry out the provisions of this Act. At the request of the Chairperson of the Commission, the head of such department or agency shall furnish such information to the Commission” (emphasis added) [§5(b)]. 89 H.R. 6429, §5; H.R. 6431, §205; H.R. 6440, §5; H.R. 6455, §2(g); H.R. 6548, §2(e); H.R. 8358, §6(a)(1); S. 4132, §2(e)(1)(A); S. 4666, §6(a)(1). 90 H.R. 6429, §5(a)(1)(A); H.R. 6431, §205(a)(1)(A); H.R. 6440, §5(a); H.R. 6455, §2(g)(1)(A)(i); H.R. 6548, §2(e)(1)(A)(i); H.R. 8358, §6(a)(1)(A); S. 4132, §2(e)(1)(A)(i); S. 4666, §6(a)(1)(A). Congressional Research Service 13 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress (1) agreement of the chair and vice chair, or (2) the affirmative vote of 6 (of 10) commission members.⁹⁰ 91 H.R. 6455 would requirehave required that a subpoena could only be issued by either (1) agreement of the chair and vice chair, or (2) an affirmative vote of 18 (of 25) commission members.92 The seven bil s that would have provided subpoena authority note that such power would be substantial y similar to judicial methods of subpoena enforcement.93 Administrative Support Al eight of the bil s would have provided that the commission may obtainmembers.⁹¹ All four bills that would provide subpoena power contain substantially similar judicial methods of subpoena enforcement.⁹²

Administrative Support

All five of the bills would provide that the commission receive administrative support administrative support from the General Services Administration (GSA). The GSA provides administrative support to dozens of federal entities, including congressional advisory commissions.⁹³ Each of the five bills would provide that GSA be reimbursed for its services by the commission.⁹⁴ Each bill also provides94 Each of the eight bil s would have provided that the commission reimburse GSA for its services.95 Each bil also would have provided that other departments or agencies may providecould have provided the commission funds, funds, facilities, staff, and other services to the commission.⁹⁵

.96 Other Powers

Without explicit language authorizing certain activities, commissions often cannot gather information, enter into contracts, use the U.S. mail likeengage in specific actions. These might include information gathering, contracting, using the U.S. mail in the same manner as an executive branch entity, or acceptaccepting donations or gifts.

All five bills directH.R. 8358 and S. 4666 would have required the commission to preserve commission records and provide records to the National Archives not later than 120 days after final report submission,97 and to hire an ethics counsel and submit to Congress a detailed plan to identify and resolve conflicts of interest.98 Al eight bil s would have directed that federal agencies provide information to the commission upon request.⁹⁶ 99 H.R. 6429, , H.R. 6431, and H.R. 6548 would also provide, H.R. 6548, H.R. 8358, S. 4132, and S. 4666 would also have provided that the commission could use the U.S. mails in the same manner as any department or agency,⁹⁷100 enter into contracts,⁹⁸101 and accept gifts or donations of services or property.⁹⁹

Staffing

The proposed COVID-19 commissions contain property.102 91 H.R. 6429, §5(a)(2)(A); H.R. 6431, §205(a)(2)(A); H.R. 6548, §2(e)(1)(B); H.R. 8358, §6(a)(2); S. 4132, §2(e)(1)(B); S. 4666, §6(a)(2). 92 H.R. 6455, §2(g)(1)(B)(i). 93 H.R. 6429, §5(a)(2)(B); H.R. 6431, §205(a)(2)(B); H.R. 6455, §2(g)(1)(B)(ii); H.R. 6548, §2(e)(1)(C); H.R. 8358, §6(a)(2); S. 4132, §2(e)(1)(B); S. 4666, §6(a)(2). 94 U.S. General Services Administration, “Presidential & Congressional Commission, Boards or Small Agencies,” at https://www.gsa.gov/resources-for/presidential-congressional-commissions-boards-or-small-agencies. 95 H.R. 6429, §5(d)(1); H.R. 6431, §205(d)(1); H.R. 6440, §5(c)(1); H.R. 6455, §2(g)(3)(A); H.R. 6548, §2(e)(4)(A); H.R. 8358, §6(d)(1); S. 4132, §2(e)(4)(A); S. 4666, §6(d)(1). 96 H.R. 6429, §5(d)(2); H.R. 6431, §205(d)(2); H.R. 6440, §5(c)(2); H.R. 6455, §2(g)(3)(B); H.R. 6548, §2(e)(4)(B); H.R. 8358, §6(d)(2); S. 4132, §2(e)(4)(B); S. 4666, §6(d)(2). 97 H.R. 8358, §8; S. 4666, §8. 98 H.R. 8358, §4(b)(3); S. 4666, §4(b)(3). 99 H.R. 6429, §5(d)(2); H.R. 6431, §205(c); H.R. 6440, §5(b); H.R. 6455, §2(e)(3); H.R. 6548, §2(e)(3); H.R. 8358, §6(c); S. 4132, §2(e)(3); S. 4666, §6(c). 100 H.R. 6429, §5(f); H.R. 6431, §205(f); H.R. 6548, §2(e)(6); H.R. 8358, §6(f); S. 4132, §2(e)(6); S. 4666, §6(f). 101 H.R. 6429, §5(b); H.R. 6431, §205(b); H.R. 6548, §2(e)(2); H.R. 8358, §6(b); S. 4132, §2(e)(2); S. 4666, §6(b). 102 H.R. 6429, §5(e); H.R. 6431, §205(e); H.R. 6548, §2(e)(5); H.R. 8358, §6(e); S. 4132, §2(e)(5); S. 4666, §6(e). Congressional Research Service 14 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Staffing The proposed COVID-19 commissions contained staffing provisions commonly found in congressional advisory commission legislation. Congressional advisory commissions are usually usual y authorized to hire staff. Most statutes specify that the commission may hire a lead staffer, often referred to as a "“staff director," "” “executive director,"” or another similar title, in addition to additional staff as needed. Rather than mandate a specific staff size, many commissions are instead authorized to appoint a staff director and other personnel as necessary, subject to the limitations of available funds.

Most congressional commissions are also authorized to hire consultants, procure intermittent services, and request that federal agencies detail personnel to aid the work of the commission.

commission’s work. Director and Commission Staff

Four of the bills provide Seven of the bil s would have provided that the commission may hire staff without regard to certain competitive service laws.103 H.R. 6440 did not specifical ycertain laws regarding the competitive service;¹⁰⁰ H.R. 6440 does not specifically exempt the commission from such laws.¹⁰¹ Four bills (104 Seven bil s (H.R. 6429, , H.R. 6431, , H.R. 6455, and H.R. 6548) would authorize, but not require, H.R. 6548, H.R. 8358, S. 4132, and S. 4666) would have authorized, but not required, the commission to hire a staff director and additional staff, as appropriate.¹⁰² Four105 Seven proposals would limithave limited staff salaries to level V of the executive schedule.¹⁰³ Three of the bills would specifically designate106 Six of the bil s would have specifical y designated staff as federal employees for the purposes of certain laws, such as workman'worker’s compensation, retirement, and other benefits.107 H.R. 6440 would have required that the Congressional Accountability Act of 1995 apply to the commission and its employees.108 Detailees benefits.¹⁰⁴

Detailees

When authorized, some commissions canmay have federal agency staff detailed to the commission. All five bills would provide Al eight bil s would have provided that federal employees could be detailed to the commission. Four bills would provide that the detailee would be without reimbursement to his or her home agency.¹⁰⁵ H.R. 6440 would allow detailees on a reimbursable basis.¹⁰⁶

Experts and Consultants

All five bills would provideSeven bil s would have provided that the commission would not reimburse the detailee’s home agency.109 H.R. 6440 would have al owed detailees on a reimbursable basis.110 103 H.R. 6429, §7; H.R. 6431, §207; H.R. 6455, §2(g); H.R. 6548, §2(i); H.R. 8358, §9(a); S. 4132, §2(g)(1); S. 4666, §9(a). 104 H.R. 6440, §6(a). 105 H.R. 6429, §7(a)(1); H.R. 6431, §207(a); H.R. 6455, §2(i)(1)(A); H.R. 6548, §2(g)(1)(A); H.R. 8358, §9(a); S. 4132, §2(g)(1); S. 4666, §9(a). 106 H.R. 6429, §7(a)(1); H.R. 6431, §207(a)(1); H.R. 6455, §2(i)(1)(A); H.R. 6548, §2(g)(1)(A); H.R. 8358, §9(a)(1); S. 4132, §2(g)(1)(A); S. 4666, §9(a)(1). For 2020, level V of the Executive Schedule is $160,100. For 2021, level V of the Executive Schedule is $161,700. For more information, see U.S. Office of Personal Management, “Salary T able No. 2020-EX,” at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2020/EX.pdf; and “Salary T able No. 2021-EX,” at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/21T ables/exec/html/EX.aspx. 107 H.R. 6429, §7(a)(2); H.R. 6431, §207(a)(2); H.R. 6548, §2(g)(1)(B); H.R. 8358, §9(a)(2)(A); S. 4132, §2(g)(1)(B)(i); S. 4666, §9(a)(2)(A). 108 H.R. 6440, §5(e). 109 H.R. 6429, §7(b); H.R. 6431, §207(b); H.R. 6455, §2(i)(2); H.R. 6548, §2(g)(2); H.R. 8358, §9(b); S. 4132, §2(g)(2); S. 4666, §9(b). 110 H.R. 6440, §6(c). Congressional Research Service 15 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Experts and Consultants Al eight bil s would have provided the commission with the authority to hire experts and consultants. Seven of the bil s would have limited the commission with the authority to hire experts and consultants. Four of the bills limit the rate of pay for consultants to level IV of the Executive Schedule.¹⁰⁷ 111 H.R. 6440 does not specify a specific would not have specified a specific compensation limit.112 Security Clearances Seven bil s would have required limit.¹⁰⁸

Security Clearances

Four bills would provide that federal agencies and departments shall cooperate with the commission to provide members and staff appropriate security clearances.¹⁰⁹ 113 H.R. 6440 does did not contain a security clearance provision.

Funding and Costs

Commissions generallygeneral y require funding to help meet their statutory goals. When designing a commission, therefore, policymakers maymight consider both how the commission will wil be funded, and how much funding the commission will wil be authorized to receive. Factors that might affect commission expenditures, and therefore funding, include member and staff salaries and benefits, contracting, administrative support reimbursement, and travel expendituresbe authorized to receive. Four of the five proposals specify a funding mechanism for the commission.

How commissions are funded and the amounts that they receive vary considerably. Several factors can contribute to overall commission costs. These factors might include the cost of hiring staff, contracting with outside consultants, and engaging administrative support, among others. Additionally, most commissions reimburse the travel expenditures of commissioners and staff, and some compensate their members. The duration of a commission can . The duration of a commission can also significantly affect its cost; past congressional commissions have been designed to last anywhere from several months to several years.114 Seven of the eight proposals would have specified a funding mechanism for the commission. Four of the bil s (H.R. 6429, H.R. 6440, H.R. 6548, S. 4132) would have authorized the appropriation of “such sums as may be necessary” for the commission, to be derived in equal amounts from the contingent fund of the Senate and the applicable accounts of the House of Representatives.115 H.R. 6455 would have authorized a $4 mil ion appropriation.116 H.R. 8358 and S. 4666 would have authorized a $50 mil ion appropriation.117 H.R. 6431 did not include an authorization of appropriations. Further, H.R. 6429, H.R. 6548, H.R. 6455, H.R. 8358, S. 4132, and S. 4666 would have provided that funds would have been available until the commission terminated.118 H.R. 6440 did not include a provision on the availability of funds. 111 H.R. 6429, §7(c); H.R. 6431, §207(c); H.R. 6455, §2(i)(3); H.R. 6548, §2(g)(3); H.R. 8358, §9(c); S. 4132, §2(g)(3); S. 4666, §9(c). For 2020, level IV of the Executive Schedule is $170,800. For 2021, level IV of the Executive Schedule is $172,500. For more information, see U.S. Office of Personnel Ma nagement, “ Salary T able No. 2020-EX,” at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2020/EX.pdf; and “ Salary T able No. 2021-EX,” at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/21T ables/exec/html/EX.aspx. 112 H.R. 6440, §6(b). 113 H.R. 6429, §8; H.R. 6431, §209; H.R. 6455, §2(k); H.R. 6548, §2(i); H.R. 8358, §11; S. 4132, §2(i); S. 4666, §11. 114 For more information on commission funding, see CRS Report R45826, Congressional Commissions: Funding and Expenditures, by William T . Egar. 115 H.R. 6429, §10(a); H.R. 6440, §8, H.R. 6548, §2(l)(1); S. 4132, §2(l)(1). 116 H.R. 6455, §2(m). 117 H.R. 8358, §13 (a); S. 4666, §13(a). 118 H.R. 6429, §10(b); H.R. 6548, §2(l)(2); H.R. 6455, §2(m); H.R. 8358, §13(b); S. 4132, §2(l)(2); S. 4666, §13(b). Congressional Research Service 16 link to page 22 link to page 22 Proposals for a COVID-19 Congressional Advisory Commission in the 116th Congress Comparison of Proposals to Create a COVID-19 Commission Table 1 provides a side-by-side comparison of major provisions of the eight proposals. For each bil , Table 1 comparesanywhere from several months to several years.¹¹⁰

Costs

Authorized Funding

Comparison of Proposals to Create a COVID-19 Commission

Table 1 provides a side-by-side comparison of major provisions of the five proposals. For each bill, the membership structure, appointment structure, rules of procedure and the membership structure, appointment structure, rules of procedure and operation, duties and reporting requirements, proposed commission powers, staffing provisions, and funding. Congressional Research Service 17 and funding are compared.