Endgame? Susan Collins says she won't vote for January 6 commission without changes

AP Photo/Susan Walsh

Opposing the commission, which is the closest we might get to a truly bipartisan account of the insurrection, is the wrong thing for the country but the right thing for the party.

So naturally Senate Republicans seem increasingly determined to oppose it, notwithstanding the surprising mini-revolt yesterday by the House GOP.

Any attempt to beat a filibuster and pass the House bill to create a commission begins with the seven Republicans who voted to convict Trump in February, but two of those seven sound like they’re voting no — and one of them might be unmovable. Susan Collins is movable in theory, if Democrats are willing to tweak the legislation:

Collins said that she supports the idea of a commission but that the House bill would need adjustments. She echoed McConnell’s concerns that the chair of the commission, who will be appointed by Democrats, would have more power to hire staff. The bill directs the chair to hire employees “in consultation with” the vice chair, who would be appointed by Republicans.

“The House bill should be modified to follow the 9/11 Commission’s non-partisan, independent investigation as closely as possible and also should be staffed by experienced personnel chosen by both the Chairman and Vice Chairman,” the Maine senator said in a statement.

CNN says the language in the bill empowering the chair to hire staff is the same as it was in the bill that created the 9/11 Commission. Collins also wants a year-end deadline for the commission, though, so that the probe doesn’t spill into 2022. The GOP’s core concern here is Dems using the ugly business of the insurrection and the “stop the steal” campaign that preceded it to try to rally midterm voters against Republicans. If there’s to be a commission with Republican support, it’ll need to wrap up New Year’s to limit that risk.

Even if Schumer and Pelosi are willing to make those changes to get Collins, though, they’ll probably still end up losing Richard Burr. He voted to impeach and is retiring, so he has nothing to lose by supporting the commission. But he told Axios that he opposes it on grounds that business like this should be handled by existing congressional committees, not some special commission.

So, assuming Collins can be won over, Democrats are still stuck at six Republicans and in need of four more. Where do those four come from now that Mitch McConnell has said he’ll oppose the bill, a move that seems to have steered previously commission-curious Republicans like John Thune and Mike Rounds into opposition? CNN was so hard-pressed to come up with a list of names of GOPers who didn’t vote to convict Trump at his trial but might conceivably support the commission that it included Lindsey Graham, as if Trump’s golf caddy would dare cross him on a loyalty test like this. CNN also has Marco Rubio listed as a Republican who’s formally undecided but has expressed “concern” about the commission. Let me clear that up for them: There’s no way Rubio’s about to antagonize Trump a year out from running for reelection in Florida of all places by supporting a commission. He’s the surest no vote in the Senate.

Who’s left, then? Thom Tillis, maybe, now that he won’t need to face voters for another five years? Cynthia Lummis, who’s in the same boat but is doubtless closely watching the reaction among Republicans to Liz Cheney in their home state of Wyoming? A poll this week found that Cheney is now considerably more popular with *Democrats* after taking on Trump than she is with Republicans.

The bottom line is that 10 votes seems mighty unlikely despite the cover provided yesterday by 35 House Republicans to support the commission, in which case each party faces a question. For Democrats: Is it worth trying to find a compromise with 10 Senate Republicans that would further dilute Pelosi’s bill, or is it actually better for the party to let the Senate GOP tank the bill? For Republicans: Is it worth tanking the bill just to make Trump happy, or should they try to maintain some control over the process going forward by compromising with Dems?

Because if the bill tanks, that’s not the end of this. “I certainly could call for hearings in the House with a majority of the members being Democrats with full subpoena power, with the agenda being determined by the Democrats,” Pelosi said yesterday when asked about the prospect of a Senate filibuster. Steny Hoyer said “of course” when the possibility of a House select committee to study the insurrection was raised with him. House Dems are going to pursue this one way or another. Either they can do it in a highly partisan way with some House panel in charge, which would be easier for the GOP to discredit but also would be more aggressive than a bipartisan commission would be. Or they can do it in a more legitimate way with the bipartisan commission at the price of giving Republicans a meaningful degree of control over that commission. Maybe Dems would actually prefer to go it alone but feel obliged for appearances’ sake to try to form a commission, expecting the GOP to block it. And maybe the GOP would also prefer to have Dems go it alone, fearing that any damning conclusions about Trump and congressional Republicans drawn by a bipartisan commission instead of a panel of House Dems would be harder to dismiss.

Joe Scarborough had an idea:

I can imagine Cheney volunteering to serve on that body as well as Adam Kinzinger, as both have already committed to risking their careers in order to oppose Trump’s messaging about the election and insurrection. Who would the other two Republicans be, though? Possibly Fred Upton and John Katko. Only GOPers who already voted for impeachment would have nothing further to lose by participating. And Katko’s involvement, if he’s willing, would be a coup for Pelosi since he is/was a McCarthy ally and was deputized by McCarthy to negotiate a deal on the commission with Democrats. Having him as part of a select committee would add a degree of legitimacy since the House GOP’s own leader trusted him enough to let him take the lead on this subject on behalf of the whole caucus — before eventually knifing him in the back.

Still, the select committee isn’t a total winner for Democrats, notes congressional scholar Norm Ornstein:

Ornstein: Most select committees have an even number of members from both parties, because the whole idea is to take them away from being partisan. But there’s nothing that mandates that a select committee have equal Democrats and Republicans.

You could set it up with a slender majority of Democrats or with a larger majority. But the big challenge is the political one. You’d have to let the Speaker and the Minority Leader, or their representatives, choose the members.

Kevin McCarthy is going to do whatever he can, first, to block a committee, and second, to stack it with members designed to turn it into a farce.

If Pelosi tries to avoid that by cutting Republicans out of the process, that makes it easy for the GOP to dismiss any findings as a left-wing hatchet job. (Of course, they’re going to call it a left-wing hatchet job even if McCarthy gets to appoint Matt Gaetz and Marjorie Taylor Greene.) It’d also be easy politically to fight any subpoenas issued by a select committee. If a bipartisan commission subpoenas you and you fight it, it looks like you have something to hide. If a congressional committee subpoenas you, fighting it just means you refuse to participate in a “partisan witch hunt.”

Ornstein told WaPo that Joe Biden could appoint his own commission, although that would be a problem politically. (“Of course Biden’s own commission would be biased against attempts to challenge his own legitimacy!”) Ornstein prefers a DOJ inquiry, but he’s not sure if the attorney general could order that on his own, without presidential authorization. And even if Merrick Garland did order it, since when does the DOJ investigate noncriminal activity? The Mueller report was a counterintelligence probe involving foreign interference, and the DOJ is already pursuing criminal charges against individual participants in the insurrection. On what grounds should they spend agency time examining dubious but legal domestic activity like the “stolen election” propagandizing that preceded January 6?

Anyway. If this really is all about 2022, as the GOP suspects, then Pelosi should be content with a select committee stacked with Democrats cranking out damaging talking points about Trump and the insurrection day after day into next year. But I think she’s kidding herself if she believes that anyone’s midterm vote will be shaped by the committee’s conclusions. My guess is the only way Dems will stand a fighting chance of holding the House next year is if the Supreme Court nukes Roe v. Wade next summer. Stay tuned.