Congressional Use of Advisory Commissions Following Crises

Congressional Use of Advisory Commissions Following Crises

March 25, 2020
Congressional Use of Advisory Commissions Following Crises
Throughout U.S. history, Congress has used advisory
Attacks upon the United States (known as the “9/11
commissions to assist in the development of public policy.
Commission”). The 9/11 Commission, established in
Among other contexts, commissions have been used
November 2002, was directed to report to Congress and the
following crisis situations, including the September 11,
President regarding the causes of the 9/11 attacks, and to
2001, terrorist attacks. Advisory commissions can provide
make recommendations to prevent future terrorist attacks.
Congress with a potential high-visibility forum to assemble
expertise that might not exist within the legislative
In addition to retrospective commissions, Congress has also
environment and allow for the in-depth examination of
occasionally created commissions to address potential
complex, cross-cutting policy issues.
future crises. For example, the NASA Authorization Act of
2005 provided for the creation of a Human Space Flight
As Congress considers its range of responses to the
Independent Investigation Commission. Such a commission
coronavirus pandemic, the creation of one or more
would be established in the event of a future space flight
congressional advisory commissions is an option that could
disaster resulting in the loss of human life. The commission
provide a platform for, over time, evaluating a myriad of
would report to Congress and the President on the causes of
pandemic-related policy issues. Past congressional advisory
the incident and make recommendations for corrective
commissions have retrospectively evaluated policy
action. It has never been formulated, as a relevant disaster
responses, brought together diverse groups of experts, and
has not occurred since 2005.
supplemented existing congressional oversight
mechanisms.
Potential Advantages of Congressional
Advisory Commissions
What Are Congressional Advisory
Should Congress create a commission to respond to an
Commissions?
emergency or crisis, such an action could have several
Congressional advisory commissions are formal, temporary
potential advantages. Advantages might include obtaining
groups, created to obtain advice, develop recommendations,
expertise, overcoming issue and political complexity,
or find solutions to short- and long-term public policy
building consensus, reducing partisanship, solving
problems. A congressional advisory commission is
collective action problems, and raising visibility.
generally defined as a multimember independent entity that
Obtaining Expertise
1. is established by Congress,
Congress might authorize a commission when legislators
2. exists temporarily,
and staff do not have the desired specialized knowledge or
expertise in a particular policy area. In such an
3. serves in an advisory capacity,
environment, outside expertise can supplement Congress’s
4. is appointed in part or whole by Members
existing expertise.
of Congress, and
5. reports to Congress.
Overcoming Issue or Political Complexity

Complex policy issues may cut across congressional
This definition differentiates a congressional commission
committee jurisdictions. As an alternative or supplement to
from a presidential commission, an executive branch
multiple committees considering an issue in addition to
commission, or other bodies with “commission” in their
their other work, a commission may be set up to devote
names (e.g., the Federal Election Commission), while
itself fulltime to its mission, without competing policy
including most entities that fulfill the role commonly
responsibilities.
perceived for commissions: studying policy problems and
Building Consensus
reporting findings to Congress.
Legislators considering policy changes may be confronted
Congressional Commissions Established
by an array of political interests. When these interests clash,
in Response to a Crisis: Examples
the result may be legislative gridlock. Commissions,
As part of its response to crises or emergencies, Congress
however, can potentially provide a more flexible policy
may establish a congressional commission both to provide a
environment to consider and suggest a range of possible
retrospective view on the causes and to develop
solutions across the political spectrum.
recommendations for legislative or administrative action to
Reducing Partisanship
help prevent or mitigate future such crises.
Solutions to policy problems produced within the normal
Among the best-known examples of crisis-related
legislative process may in some cases be perceived through
commissions is the National Commission on Terrorist
the lens of partisanship. Most commissions are structured to
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Congressional Use of Advisory Commissions Following Crises
be nonpartisan or bipartisan. Such a structure might make a
Reduced Democratic Accountability
commission’s findings and recommendations more
Commissions might be considered by some to be
politically acceptable to diverse viewpoints.
undemocratic. This criticism has historically taken three
forms. First, commissions may not represent the general
A commission’s bipartisan or nonpartisan arrangement can
population and/or popular opinion. Second, commissions
give its recommendations strong credibility, both in
are seen by some to lack popular accountability, because
Congress and among the public. Commissions can also
commission members are commonly unelected and often
facilitate compromise, bypassing the potential pitfalls of
insulated from constituent opinion. Third, commissions,
public negotiations. Further, because commission members
depending on statutory requirements, may not operate
are not elected, they may be better suited to suggesting
publicly. This stands in contrast to Congress, whose
unpopular, but potentially valuable, policy solutions.
meetings, hearings, and other activities are generally
required to be held in public.
Solving Collective Action Problems
A commission may allow legislators to solve collective
Financial Inefficiency
action problems. Collective action problems occur when
Some commissions might have high costs and low policy
individual legislators seek to protect their district’s or
returns. Costs vary widely, ranging from several hundred
state’s interests, despite often widespread agreement that
thousand dollars to over $10 million. In most cases,
change would be beneficial. In these circumstances, a
Congress is under no obligation to act on, or even respond
commission can serve to create general consensus about a
to, the work of a commission. If legislators disagree with
particular policy solution without the proposed solution
the commission’s results or recommendations, they may
being impeded by individual concerns about its
simply ignore them. Further, there is no guarantee that any
implementation or impact.
commission will produce a quality product, as
commissioners may also have their own agendas, biases,
For example, in 1988 Congress established the Base
and pressures.
Closure and Realignment Commission (BRAC; P.L. 100-
526; 102 Stat. 2623, October 24, 1988) to study the need for
Considerations for Congress
military bases closures. BRAC facilitated recommendations
Should Congress decide to create an advisory commission
to close and consolidate military bases regardless of
to study a crisis situation, several considerations might be
individual Member preferences. Once BRAC made its
made. First, whether a commission is a congressional or
recommendations, the law required that Congress either
executive branch entity generally affects its scope and
accepted or rejected the commission’s findings as a whole,
mission. For example, a congressional commission might
thus bypassing traditional congressional processes for
have broad authority to study a policy issue across
potential amendments focused on individual bases.
jurisdictional boundaries, whereas an executive branch
entity might be restricted to the home agency’s mandate.
Raising Visibility
A commission can also sometimes provide a policy issue
Second, congressional commissions generally work at a
with a highly visible forum. Commissions composed of
slower pace than executive branch commissions. Because
notable public figures may allow personal prestige to be
congressional commissions take time to set up, (e.g., hire
transferred to recommended policy solutions. Meetings and
staff, conduct research, and write a report), most have had
press releases from a commission may receive more media
12 to 18 months to complete their work. By contrast,
attention than corresponding congressional information.
executive branch commissions have reported in as few as
After report issuance, commission members can also
90 days. Additionally, congressional commissions must be
advocate for the commission’s recommendation, thus
individually authorized and provided powers, duties, and
potentially increasing awareness of the policy issues.
funding, whereas executive branch entities often derive
their authority from their parent agency.
Past Criticism of Commissions
The creation of congressional advisory commissions is not
For more information about congressional advisory
without critiques. Criticisms of commission use include that
commissions, see CRS Report R40076, Congressional
Congress is abdicating responsibility for a public policy
Commissions: Overview and Considerations for Congress;
issue, democratic accountability is reduced since non-
and CRS Report R45826, Congressional Commissions:
elected officials are making recommendations, and
Funding and Expenditures.
commissions can be financially inefficient.
Jacob R. Straus, Specialist on the Congress
Abdicated Responsibility
William T. Egar, Analyst in American National
Critics have argued that commissions are primarily created
Government
to avoid blame should recommendations be unpopular or
unworkable. Commissions can provide distance between
IF11473
Congress and controversial recommendations. If the
commission’s work is popular, legislators can claim credit.
If the commission’s recommendations are unpopular,
legislators can shift responsibility to the commission itself.

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Congressional Use of Advisory Commissions Following Crises

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