Building Better Blue Ribbon Commissions

We have now had nearly a month to pore over and digest the more than 600-page report released on January 27th by the congressionally-appointed Financial Crisis Inquiry Commission ("FCIC"), and the commission's members testified before the House Financial Services Committee last Wednesday. But the FCIC, irrespective of its findings, failed to achieve one key objective that is widely perceived to be a sine qua non for a successful independent commission investigation: a unanimous, bipartisan report. The final, official report was delayed by over a month and instead of a single, comprehensive analysis of the financial crisis, the FCIC produced three separate reports – a unanimous Democratic majority report and two Republican dissents. This unfortunate and overtly partisan outcome has been well documented, and undoubtedly has impaired the effectiveness of the Commission's efforts. Whether comity was possible in the FCIC is something we may never know. But after careful study of a range of Blue Ribbon commissions, it is evident that there are six key themes that all future Congressional panels should strive toward to be successful. 1) Commission Members: Roles, Time Commitments, and Conflicts of Interest National investigative commission investigations are by their very nature extraordinarily challenging and time-consuming undertakings. They require leaders with relevant experience and as much in-depth knowledge of the matters under investigation as possible. But these requirements for sufficient time and relevant experience may conflict, as the commission candidates with the best qualifications also are likely to be those with the busiest and most demanding professional lives. A careful balance must be struck to avoid naming too many commissioners who have sterling credentials and impeccable public reputations but are unable to devote sufficient time onto the commission's investigation. In addition to being capable and available, it also is imperative that the members of a national investigative commission be free of any actual or perceived conflict of interest relating to the commission's work. 2) Commission Staffing and Investigative Resources Almost as important as the membership of a national investigative commission is the make-up and leadership of the commission's professional staff. Both the Roberts Commission investigation of Pearl Harbor and the Warren Commission investigation of the Kennedy assassination have suffered from charges that the commissions devoted insufficient investigative resource to crucial areas of their investigations. While there are no failsafe means of avoiding such criticisms, and budgetary constraints are always present, future commissions would be wise to err on the side of caution and assemble an investigative staff with ample “reserves” to pursue unanticipated investigative avenues and issues. It also is important for an independent investigative commission, particularly one that is investigating a matter of extraordinary national importance such as the Kennedy assassination or the 9/11 attacks, to assemble an investigative staff with a broad range of experience and widely diverse backgrounds. A staff that is weighed too heavily with investigators who came from government may be hesitant to challenge and question the actions of their former agencies or the government generally. For this reason alone, future national investigative commissions would be well advised to recruit a staff with diverse backgrounds and professional experience to ensure a critical and independent staff perspective. Most important, a commission should not rely too heavily on investigative support of agencies or offices that are within the commission's investigative purview or have some actual or potential conflict of interest with respect to the commission's investigation, as arguably was the case with the Warren Commission's reliance on the FBI. 3) Commission Funding, Timetables, and Deadlines Tom Kean and Lee Hamilton made the dramatic statement that the 9/11 Commission was “set up to fail” before the commission's work even began. The funding limitations and relatively short investigative timetable built into the 9/11 Commission's enabling statute created what Kean and Hamilton called an “impossible task” for the commission. Every possible effort should be made to provide adequate funding and set a realistic timetable. This is not to say that reasonable and well-considered limitations on funding and the permitted duration of an investigation are not necessary and desirable. What is required in this area is a careful balance between the need for adequate time and funds for a complete and thorough investigation, on the one hand, and the need for limits on costs and a timely completion of the investigation, on the other hand. Although not an exact parallel, the Independent Counsel investigations of Lawrence Walsh (Iran-contra) and Kenneth Starr (Whitewater) were subject to heavy criticism – fairly or unfairly and from both sides of the political aisle – for taking far too long and costing far too much. It is also extremely important that future commissions should not be subject to artificial deadlines dictated by political or other considerations that are irrelevant to the commission's investigative mission. 4) Subpoena Power – Use and Enforcement Experience suggests that for a commission to function effectively it must have and should use, from the outset and as a matter of general policy for all evidence and witnesses, subpoena power to compel the production of documents and testimony. While the Roberts Commission and the Warren Commission for the most part enjoyed cooperation in collecting evidence, the 9/11 Commission had a different experience. After an early – and internally controversial – decision not to use its subpoena power because of concerns about the time and resources that might be required to enforce subpoenas, it ultimately had to use subpoenas to obtain necessary information from recalcitrant federal agencies. A possible solution to this problem is to provide national investigative commissions, particularly those like the 9/11 Commission that are investigating a complex matter and are subject to a fixed reporting deadline, with a means of obtaining expedited judicial review and enforcement of their subpoenas. The availability of an expedited judicial enforcement and appeals process makes it less likely that subpoena recipients would try to “run out the clock” on a commission's investigation, particularly if they were asserting legal arguments of a dubious merit that would be unlikely to withstand judicial review. 5) Witness Testimony – Essential Powers and Procedures If there is one lesson that resonates most clearly from the three commission investigations discussed above, it is that every effort should be made to create as complete and detailed an investigative record as possible. The Roberts Commission's failure to properly record and document its early witness interviews was later seen as a significant blunder, and despite its well-documented investigation the Warren Commission has suffered from all manner of conspiracy and cover-up allegations that have sought to exploit every conceivable flaw and gap in its investigative record. Even the 9/11 Commission, which was well aware of the perceived shortcomings of the Roberts Commission and the Warren Commission investigations, was unable to avoid problems, such as the so-called “Able Danger” controversy, relating to the documenting of its investigative activities. For all of these reasons, despite the cost and inconvenience of doing so, the best practice is for the investigative commissions to swear all witnesses and prepare verbatim transcripts of all witness statements. 6) Transparency and Public Access History suggests that secrecy and lack of transparency are perhaps the greatest long-term threats to a commission investigation. Future commissions should avoid following procedures that may later enable critics to charge a “cover up” or a failure to vigorously pursue all appropriate and reasonable lines of investigative inquiry. For that reason the operating policies and procedures of a national investigative commission should tilt strongly toward openness and transparency whenever and wherever possible. These six recommendations are based on one guiding principle, that when investigating matters of enormous national importance every possible effort should be made to conduct the investigation in a manner which will ensure that all relevant facts are discovered and made public. Although the special circumstances of particular future investigative commissions may require departures from some of these recommendations, past experience suggests that future commissions should be extremely wary of adopting any procedure that might later call into question the independence, thoroughness, and good faith of their investigation. *** Lance Cole is Professor of Law and Director of the Center for Government Law and Public Policy Studies at Penn State University's Dickinson School of Law. He is the co-author (with Stanley M. Brand) of Congressional Investigations and Oversight: Case Studies and Analysis (Carolina Academic Press, 2010), which is available on Amazon.com.