Last week, the leaders of the House Homeland Security Committee struck a bipartisan deal on an idled piece of business: an independent commission to “investigate and report upon the facts and causes relating to the January 6, 2021, domestic terrorist attack upon the United States Capitol Complex.” The House is scheduled to vote on legislation creating the commission on Wednesday.
Given the bipartisan announcement—and Congress members’ shared firsthand experience of the assault—the investigation may have seemed like a point of common ground. But in the four months since the pro-Trump rioters breached the Capitol, one’s position on the riot has become yet another loyalty test for Republican partisans. And on Tuesday morning, House Minority Leader Kevin McCarthy announced he was against the deal his own ranking member had struck.
The Democratic committee chairman, Rep. Bennie Thompson, and Republican ranking member, Rep. John Katko, had come to an agreement that each party’s leaders would get to name five of the 10 commissioners. Issuing a subpoena would require the signoff of either a majority of the commission or the consent of both the chair and vice chair.
This was a compromise from Speaker Nancy Pelosi’s original draft, released earlier this year, which had called for a seven-to-four split between Democratic and Republican appointees, and had given the chair unilateral power to issue subpoenas. Katko also secured language to ensure that the commission can’t proceed on its business until all commissioners are in place—i.e., the chairman can’t just proceed right away after his or her selection—and eliminated language with predetermined findings that could have boxed in the commission at the outset. The commission, whose charge would expire on Dec. 31, would now resemble something closer to the 9/11 Commission, and would be difficult for Republicans to dismiss as a purely partisan witch hunt.
Katko, however, is a moderate, perennially targeted swing-district member who voted to impeach President Donald Trump in January. And his idea of what may constitute a worthwhile fact-finding venture is at odds with that of many, many members within his conference. Where Katko might see a “domestic terrorist attack upon the United States Capitol Complex,” another House Republican like, say, Georgia Rep. Andrew Clyde, might see “a normal tourist visit.”
Some House Republicans, like Clyde, now profess the belief that Jan. 6, when rioters smashed into the Capitol to disrupt certification of the Electoral College vote (while some searched for Vice President Mike Pence, so they could kill him), wasn’t such a big deal. The vast majority of House Republicans, at the very least, would just prefer to never talk about it again, and last week they booted their No. 3 leader, Liz Cheney, for talking about it too much. Also: Donald Trump doesn’t want them to set up a commission with subpoena power to investigate Jan. 6, and that’s all most of them need to hear.
So McCarthy, despite getting the changes in composition and authority that he had been seeking, came out in opposition to the deal. And though Minority Whip Steve Scalise had said earlier that he would not whip Republicans against the commission, he is now offering a “leadership recommendation” to vote against it.
McCarthy gave three reasons for his opposition: that Pelosi had spent too much time politicking during the negotiations, that it would be duplicative of the investigatory work already being done by law enforcement and other congressional committees, and that it has a “shortsighted scope” that “does not examine interrelated forms of political violence in America.” Among those other “forms of political violence in America,” he cited “the political violence that has struck American cities, a Republican Congressional baseball practice, and, most recently, the deadly attack on Capitol Police on April 2, 2021.”
Indeed, the commission on the Capitol riot of Jan. 6 is not intended to focus on these other incidents—although there’s no hard guardrail preventing commissioners from digging into anything they believe has a connection—just as it’s not intended to focus on the emergence of cicadas, the new Major League Baseball extra innings format, the Panic of 1819, or the Norman Conquest. The focus on the pro-Trump riot is a clear embarrassment for the Republican Party, and so McCarthy would prefer to muddy it up by tossing into the mix something he can blame on Democrats, like antifa. Antifa, however, did not raid the Capitol to disrupt the peaceful transfer of power (although plenty of Republicans would say they did).
Outright dismissal of the Capitol riot inquiry because it doesn’t also inquire into sundry elements of the Seattle Autonomous Zone might be what Republican conference politics—and Trump, permanently breathing down his neck—demanded of McCarthy. But it’s not a great strategy for winning over the broader public. Pelosi’s press office, for example, blasted out a release saying that McCarthy “sides with 1/6 deniers.”
Once the legislation setting up the commission passes the House, it would need 60 votes to break a filibuster in the Senate. And while Senate Minority Leader Mitch McConnell had also, earlier in the year, suggested like McCarthy that he wanted the commission to “analyze the full scope of the political violence problem in this country,” he didn’t reiterate that objection, or dismiss out of hand the House bill, on Tuesday.
“I think it’s safe for you to report that we are undecided about the way forward at this point,” McConnell told reporters after Senate Republicans discussed the proposal during their Tuesday lunch. “We want to read the fine print, and if the majority leader puts it on the floor, we’ll react accordingly.” Instead, he cited two areas of concern. He wanted to make sure that the commission didn’t “interfere” with the investigatory work that other law enforcement agencies and congressional committees were doing. He also said that while the makeup of the commission may have been balanced, the legislation still gives the chairman too much authority to select staff.
Those extremely technical language concerns, rather than a dismissal, did the immediate job of buying McConnell time on a difficult decision without making him look as weak as McCarthy. (Not that the latter is a particularly difficult task.)
To think about where McConnell—and the Senate Republican Conference—could ultimately land on this, consider the impeachment of Trump after the Jan. 6 attack. McConnell was disgusted with Trump (losing the two Georgia Senate seats, and his majority, the day before didn’t help) and was open to conviction. In the end, though, convicting Trump would have threatened his majority leader status and caused headaches for those senators who had elected him. So he took the procedural out, declaring that much as he would have liked to hold Trump accountable, former presidents can’t be impeached.
On the matter of the commission, McConnell might prefer to stick by his complaints about staffing or superfluity rather than have a high-profile committee do Democrats’ work of keeping Jan. 6 in the news for the remainder of the year, at which point the committee could argue for an extension.
And sure, Democrats want the commission. But they’d accept a McConnell-led filibuster of one as a political consolation prize.