The 6 January Commission and the Filibuster

Could this be the straw that broke the camel's back?

The abuse of Senate rules that has led to a de facto supermajority requirement to pass any legislation is at loggerheads with the desire of the majority party to establish a bipartisan commission to investigate the attack on the Capitol to stop the counting of Electoral College votes. Even Joe Manchin seems frustrated by this.

POLITICO (“Filibuster brawl amps up with GOP opposition to Jan. 6 panel“):

The filibuster has been on hiatus since Joe Biden took over. Senate Republicans are about to change that — over a bipartisan commission to probe the Capitol riot.

After more than four months of letting their power to obstruct lie unused in the Senate, the 50-member Senate GOP is ready to mount a filibuster of House-passed legislation creating an independent cross-aisle panel to investigate the Jan. 6 insurrection. If Republicans follow through and block the bill, they will spark a long-building fight over the filibuster’s very existence.

The filibuster has spent months of lurking in the background of the Senate’s daily business, but the battle over the chamber’s 60-vote threshold will erupt as soon as next week. Senate Majority Leader Chuck Schumer is plotting to bring the House’s Jan. 6 commission bill to the floor and daring Senate Republicans to block it.

And GOP opposition is hardening by the day. According to interviews with more than a half-dozen Republicans on Thursday, there is almost no path to even opening up debate on the bill — much less passing it.

“I don’t think there will be 10 votes on our side for it,” said Sen. Mike Braun (R-Ind). “At this stage, I’d be surprised if you’re gonna get even a handful.”

Senate Minority Leader Mitch McConnell has been circumspect about his use of the filibuster, leaving the tool untouched so far this Congress as his conference has advanced Democratic bills confronting hate crimes, planning water infrastructure and increasing American competitiveness. But the Jan. 6 commission — and talking about former President Donald Trump for months on end — is a bridge too far for the GOP.

Now that McConnell is pushing his conference toward a filibuster of a bipartisan bill, Democrats see an opportunity to begin making their case to reluctant members that the 60-vote status quo is unsustainable.

[…]

Sen. Joe Manchin (D-W.Va.), one of the filibuster’s strongest supporters in the Democratic Party, seemed aghast that his GOP colleagues are on track to block the bill.

“So disheartening. It makes you really concerned about our country,” Manchin said. Asked if that is an abuse of the filibuster: “I’m still praying we’ve still got 10 good solid patriots within that conference.”

The irony is that, to the extent there’s an argument for keeping the filibuster and thwarting the will of a majority of voters, this sort of bill is it. It’s an incredibly contentious issue that divides the country on regional and party lines and therefore shouldn’t be rammed through on a 50 percent plus 1 basis.

While bipartisan, blue-ribbon panels are a tradition after national tragedies like the Kennedy assassination, the Challenger explosion, and the 9/11 attacks, this one is different. In those cases, the nation was united that a tragedy had occurred and wanting to get to the bottom of it. The Capitol riots, though, were perpetrated by supporters of a Republican President, at least partly at his instigation, based on an outrageous lie that the election had been stolen from him. Given that supporting that lie has become a litmus test for winning Republican primaries in so many states and districts, it’s impossible to have a bipartisan investigation.

McConnell and other Republican leaders who condemned Trump’s role—including North Carolina’s Bob Burr, who voted to convict in the impeachment trial—reasonably see this as a partisan maneuver to keep this issue alive into the next election cycle. McConnell and others rightly see that as an obstacle to their retaking of the Senate in 2022.

Honestly, aside from the partisan political battle here, it’s not obvious what a 6 January commission could possibly achieve. Trump has already been impeached. The Justice Department is investigating the incident and issuing arrest warrants on a steady basis. What is it that we’d possibly learn from a commission that we don’t already know, or wouldn’t find through the criminal justice process?

As to the filibuster, if this proves to be the final straw, so be it. But I’d argue the major election reform law (HR1/S1) presents a much more clear-cut case for doing so.

FILED UNDER: *FEATURED, Capitol Riot, Congress, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. As things stand Democrats don’t have the votes to eliminate the filibuster.

    Both Manchin and Arizona Senator Kirsten Sinema have said they oppose it. Unless they both change their minds Democrats will lack the votes they need to get the Vice-Presidents tie breaking votem

    3
  2. Barry says:

    “Honestly, aside from the partisan political battle here, it’s not obvious what a 6 January commission could possibly achieve.”

    It’s blatantly obvious, IMHO:

    1) Subpoena Trump and his upper staffers.
    2) Subpoena the Pentagon officials who slow-walked the defense of Congress.
    3) Subpoena insurrectionist members of Congress.

    And last, but not least:

    4) Do things publicly (albeit competently, not grandstandingly).

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  3. Barry says:

    “The irony is that, to the extent there’s an argument for keeping the filibuster and thwarting the will of a majority of voters, this sort of bill is it. It’s an incredibly contentious issue that divides the country on regional and party lines and therefore shouldn’t be rammed through on a 50 percent plus 1 basis.”

    1) One party attempted the overthrow of the US government, pure and simple.
    2) If they can’t be touched even for this, then they are above the law.
    3) They are clearly planning on pushing such powers to their limits.

    36
  4. I think a Committee investigation of some kind is absolutely necessary. The insurrection was the most significant attack on the Capitol since the War of 1812.

    We need to understand what happened and why authorities were not given the resources they needed to protect the building and the Members of Congress and the Senate and staff.

    We also need to investigate rise of domestic violence and hate groups, especially during the Trump Administration. If the Senate doesn’t go along with this then the House should hold it’s own investigation through either a Select Committee or the Homeland Security Committee.

    34
  5. Tony W says:

    What is it that we’d possibly learn from a commission that we don’t already know, or wouldn’t find through the criminal justice process?

    The criminal justice process is focused on punishing perpetrators of the attack, but will do little to get to the motivations and mechanisms behind The Big Lie, and the downstream effects.

    I think a South Africa-style Truth and Reconciliation type project is in order. Such a project would destroy the Republican party, by name, but it would allow for a loyal opposition party to form in its place that would help the country return to normal order eventually.

    Short of that, I think we’ll be dragging the treasonous R’s around behind us for a couple of decades until enough of them die off .

    11
  6. Moosebreath says:

    “What is it that we’d possibly learn from a commission that we don’t already know, or wouldn’t find through the criminal justice process?”

    1. Who among members of Congress provided aid and comfort (words used deliberately) to the insurrectionists, including by giving private tours of the Capitol to point out where the insurrectionists needed to attack on the days before January 6?
    2. Why did it take so long for the Trump Administration to provide support for the Capitol police? Was it because the Administration wanted the insurrection to succeed?

    These are issues which would not be the subject to criminal proceedings against the insurrectionists. And as Barry said, if Republicans are able to block an investigation into an attempt to overthrow an election, they are above the law. And they will do it again until they succeed.

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  7. Michael Reynolds says:

    The end game for Republicans is a coup. No? Then tell me what their end game is, because everything they are doing is consistent with an expectation that the US government will be overthrown unless they get the result they want. They are done with democracy. They are done with the constitution. This is a fascist party.

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  8. Michael Reynolds says:

    And James, this may the dumbest thing you’ve ever written. Clueless.

    18
  9. OzarkHillbilly says:

    “I’m still praying we’ve still got 10 good solid patriots within that conference.”

    Oh Joe, you sweet summer child.

    The Justice Department is investigating the incident and issuing arrest warrants on a steady basis.

    Oh James, you sweet summer child. Tell me, how many congress critters is the justice department likely to put before a grand jury? And of those, how many will testify? How many do you expect to be charged with seditious acts?

    0, 0, and 0?

    The only accountability for these folks is at the ballot box and they will pay zero price if the facts are not out there in the most public way. One way or another, the DEMs in congress are going to investigate this and hold public hearings on it. At the very least, that is their sworn duty to the Constitution.

    16
  10. Mikey says:

    @OzarkHillbilly:

    The only accountability for these folks is at the ballot box and they will pay zero price if the facts are not out there in the most public way.

    And maybe not even then. But at least if the facts are out, there may be a chance for future historians to write accurately about America’s turn to fascism.

    6
  11. Mikey says:

    @OzarkHillbilly:

    The only accountability for these folks is at the ballot box and they will pay zero price if the facts are not out there in the most public way.

    They may pay no price regardless. But at least if the facts are out, there may be a chance for future historians to write accurately about America’s turn to fascism.

  12. Mikey says:

    An attempt to edit has resulted in both versions of my comment showing.

    1
  13. OzarkHillbilly says:

    @Mikey: Most of them will be reelected in a cake walk. The accountability I am referring to is becoming a member of a permanent minority, which *most* congress critters abhor being because it’s just no fun.

    **Jim Jordan, Louis Gohmert, MTG, and company being the exceptions, they aren’t smart enough to know they aren’t having any fun.

    2
  14. CSK says:

    @OzarkHillbilly:
    MTG seems to be having fun racing around the country holding rallies with Gaetz. Since she got booted off her committees, she’s being paid to do nothing but be a pain in the ass, which seems to be her idea of a good time.

    3
  15. OzarkHillbilly says:

    @CSK: She’s not smart enough to know that hanging out with Gaetz is the very definition of shame and torture.

  16. gVOR08 says:

    @Tony W:

    Short of that, I think we’ll be dragging the treasonous R’s around behind us for a couple of decades until enough of them die off .

    Unless they win. We are on a knife edge. Ds hold the House by a margin of 8 members. The Senate requires a 10 vote margin to do anything and Ds hold a margin of 1 vote, only in case of a tie. Although Biden won the popular vote by 4.4% and a large majority in the EC, the margin was very this in enough states to make the EC a nail biter. GOPs have a 3 vote SCOTUS margin. And there’s a midterm coming.

    If Rs win a trifecta in 2024, we won’t have any treasonous Rs left because we’ll be deep into “none dare call it treason” territory.

    10
  17. CSK says:

    @OzarkHillbilly:
    To you it is. To me it is. Obviously not to her.

  18. My response launched a post.

    In disagreement with James, I think this situation lays bare the problem with giving the minority a veto.

    7
  19. Kathy says:

    What is it that we’d possibly learn from a commission that we don’t already know, or wouldn’t find through the criminal justice process?

    In the second place, what level of planning was there for the insurrection, and who was involved, including GOP representatives and senators (if any).

    But in the first place, if the filibuster is valid as a tool of partisan advantage, when all that’s at stake is partisan advantage, then we may as well begin the civil war and spare future historians the complex buildup leading up to it.

    I guess if there is no commission, the DOJ can appoint a special counsel to carry out a criminal investigation on the matter.

    3
  20. James Joyner says:

    @Barry: But none of these things would be within the purview of a blue-ribbon commission. The DOJ has that authority, although I doubt Trump himself will ever face charges.

    @OzarkHillbilly: We’ve already had an impeachment proceeding and, indeed, impeached the sitting President.

    @Steven L. Taylor: I’ve come to oppose the filibuster, simply because it’s become routine rather than used to stop truly monumental legislation from getting rammed through via a slim majority. I just think this particular measure an odd hill to die on.

    @Kathy: I don’t know why we’d need a special counsel. That’s really a work-around for when the sitting President and his people are under suspicion. If Biden is under suspicion for the 6 January incidents, he’s playing some serious 6-dimensional chess.

    1
  21. Mister Bluster says:

    …rammed through…

    This is a curious description of a rule (50 percent plus 1) that facilitates majority rule in a representative democracy.

    7
  22. George says:

    @Barry:

    1) One party attempted the overthrow of the US government, pure and simple.

    That certainly appears to be true. However, why is a commission needed to charge, arrest and try the people involved (including Trump)? At least for a non-lawyer like me, it seems it should be a straight-forward legal matter, no commission needed.

    And given that Biden is now in charge of the Justice Department, it should be even more straightforward to charge, arrest and try the people involved. Again without the need for any commission.

    Moreover, most of the crime is easily available from tweets (again, starting with Trump’s) and videos, which I’d guess could be used in courts. Why get congress involved in a straight-forward legal matter?

    1
  23. James Joyner says:

    @Mister Bluster:

    This is a curious description of a rule (50 percent plus 1) that facilitates majority rule in a representative democracy.

    So, while I’m in agreement with Steven that “it’s a Republic, not a democracy” is a fairly dumb statement because the two are interchangeable in the American context, I also think that there are all manner of ways in which representative democracy can be achieved and that not all of them are appropriate for all polities.

    Because we’re so large and diverse—and because of the way we were initially formed—we decided on a federal rather than unitary arrangement. But, for a variety of reasons, we’ve become more unitary over the last century. That’s highly problematic, though, in a very polarized, sorted society. Tiny majorities imposing major policy shifts on the whole country is highly problematic in that context.

    1
  24. Just nutha ignint cracker says:

    The irony is that, to the extent there’s an argument for keeping the filibuster and thwarting the will of a majority of voters, this sort of bill is it. It’s an incredibly contentious issue that divides the country on regional and party lines and therefore shouldn’t be rammed through on a 50 percent plus 1 basis.

    I’m definitely torn about this statement. On the one hand, I agree that it shouldn’t even be necessary to ram this bill through on a 50% + 1 basis. (It’s almost as if key people in one of the parties or another was actually spurring the events on and goading people to attack their nation’s capital.) And I will agree with the notion that the sort of show trial “truth and reconciliation” commission these hearings would undoubtedly devolve into (shades of the “It’s almost as if…” thought above) would promise more than it delivered, but my thinking there is probably based on my reading of a Mother Jones (I think) article noting that such commissions always look better on paper than the turn out performing in real life.

    On the other hand, Dr. Joyner, your argument simply reeks of the same argument that would assert that the Menendez brothers should have been granted reduced sentences because of the hardship of being orphans. I guess I’ll just stick with the nation being broken and perhaps irretrievably so this time.

    9
  25. Michael Reynolds says:

    The Republicans are attempting to cover up their involvement in a crime. It’s really that simple. And there is no excuse for it. If there was ever a case for killing the filibuster, this is it. We simply cannot have alleged criminals deciding to quash an investigation of that alleged criminal behavior.

    10
  26. James Joyner says:

    @Michael Reynolds: I don’t understand the commission to be a criminal investigatory body. We already have mechanisms for that with Biden’s Justice Department under Merrick Garland in charge.

    1
  27. Raoul says:

    I wonder if there is a “real” reason why Republicans oppose the commission. I’m not sanguine on what the commission would discover but I think Congress should take the lead in investigating itself and activities taking place around The Capital. The executive has its own role but it is more limited in scope. I think it behooves the country to learn what happened during the Feast of the Epiphany this year- so far we know some stories but without a commission we will not be able see the big picture of insurrection day.

    1
  28. Michael Reynolds says:

    @James Joyner:
    I’m sorry, what? It’s not a criminal investigation? You mean like the Watergate committee wasn’t? Your preferred method for getting at the truth would be for DoJ to start subpoenaing Congresspeople and Senators? You don’t think the United States Congress should maybe look into how it happened that lunatics were running through the Capitol calling for murder?

    We cannot have our Capitol invaded by thugs and not even bother to find out how it happened, or whether there was complicit behavior within Congress. Yes, this is a cover-up, yes a cover-up of a serious crime. And it’s laying the groundwork for a coup next time. This is serious shit your former party is pulling. This is end of democracy stuff. Open your eyes.

    10
  29. Michael Reynolds says:

    @Raoul:
    I can tell you what they’d find: Republican complicity in a violent attempt to overthrow the US government. I’ll bet you my next mortgage payment that there were Republicans inside in direct communication with the terrorists, before, during and after. And of course there were other Republicans openly terrified and nervously denouncing Trump. Still others on the phones with the White House begging Osama Bin Trump to call off his terrorists and being contemptuously refused.

    Now it seems our otherwise reasonable host wants to support that desperate cover-up. I am surprised, disappointed and appalled.

    3
  30. Moosebreath says:

    @James Joyner:

    “I don’t understand the commission to be a criminal investigatory body. We already have mechanisms for that with Biden’s Justice Department under Merrick Garland in charge.”

    Entirely serious question — when was the last time an Administration started a criminal investigation of the actions of the prior Administration (in this case, the causes of the delay in supporting the Capitol Police)?

  31. Moosebreath says:
  32. Moosebreath says:

    @Michael Reynolds:

    “We cannot have our Capitol invaded by thugs and not even bother to find out how it happened, or whether there was complicit behavior within Congress. Yes, this is a cover-up, yes a cover-up of a serious crime. And it’s laying the groundwork for a coup next time. This is serious shit your former party is pulling. This is end of democracy stuff. Open your eyes.”

    Repeating this for emphasis. I am saddened at how many people are hoping that if they cover their eyes and ears, this will go away.

    And I have no idea what happened with the prior post, but it can be deleted.

    3
  33. Scott F. says:

    @James Joyner:

    As to the filibuster, if this proves to be the final straw, so be it. But I’d argue the major election reform law (HR1/S1) presents a much more clear-cut case for doing so.

    I just think this particular measure an odd hill to die on.

    I would contend that HR1/SR1 and the Jan 6 Commission are the same hill, James. Both fights are about securing democracy in the face of aggressive actions from the minority.

    6
  34. James Joyner says:

    @Michael Reynolds: Unless I’m completely misunderstanding the proposal, this is about a standalone blue ribbon commission of graybeards. It’s not a Congressional committee hearing, which Republicans couldn’t stop if they wanted to, or an independent counsel, which is unnecessary since we’re not investigating the sitting President or his closest advisors.

    1
  35. George says:

    @Michael Reynolds:

    Why wouldn’t the DoJ be the best body to investigate what appears to be thoroughly criminal activity? In fact, having an organization investigate its own members strikes me as the worst way of handling pretty much any crime — think of the Vatican investigating its own priests, or oil companies doing internal investigations of criminal pollution, or even a police department investigating itself.

  36. Moosebreath says:

    @James Joyner:

    “Unless I’m completely misunderstanding the proposal, this is about a standalone blue ribbon commission of graybeards. It’s not a Congressional committee hearing, which Republicans couldn’t stop if they wanted to…”

    But Republicans would dismiss a Congressional committee hearing run by Democrats for being partisan, and the chattering classes would treat it as being the equivalent of the 8th Benghazi investigation. That the advantage of a bipartisan panel of graybeards.

    1
  37. OzarkHillbilly says:

    @CSK: Like I said, she’s not smart enough.

  38. OzarkHillbilly says:

    @James Joyner: We’ve already had an impeachment proceeding and, indeed, impeached the sitting President.

    Really James? That’s sufficient for you? You actually believe all the facts came out in that proceeding? What about Hawley? Bohbert? Gohmert? McCarthy? etc. etc. What world are you living in?

    2
  39. James Joyner says:

    @OzarkHillbilly: I think there’s a lot we’ll never know but am skeptical a bipartisan comment could do much to solve that given the divide between the parties.

    1
  40. gVOR08 says:

    A lot of the criminality around 1/6 is going to be gray area. Trump’s defense will be that he just encouraged them to protest. It would be hard to prove he had criminal intent to incite violence. It would be hard to prove he intended for them to prevent certification of the election, given that there was no realistic way they could. If MTG showed a bunch of Three Percenters and Proud Boys around the Capitol on the 5th, well, a lot of her constituents are Three Percenters and Proud Boys. They’re her people. How do you prove criminal intent?

    A full on DOJ prosecution might have some chance of turning them on each other and forcing plea deals. But the GOPs would paint it as a witch hunt. A congressional hearing would devolve into a protracted court fight over subpoenas, backstopped by a 6-3 SCOTUS. And if they aren’t convicted, then “not guilty” becomes pure as the driven snow and proof it was a partisan witch hunt all along. A commission would, I fear, be an exercise in delay and sweeping under rugs, but I think it’s a better shot than criminal prosecution.

    I’d be OK with a Special Counsel. I don’t believe it’s a matter of law that one can’t be appointed for purposes other than investigating the current administration. And such a person would have to have a unique charter. Mueller failed, I think, partly because his whole career was a matter of prosecution, and with prosecution off the table (not to mention hostile oversight), he didn’t know what to do. But no matter who Biden appointed, how they operated, or what they found, it would be tagged as partisan.

    I think we’re screwed. This is likely going nowhere except showing GOPs how much they can get away with.

  41. OzarkHillbilly says:

    @James Joyner:

    I think there’s a lot we’ll never know

    Agreed.

    am skeptical a bipartisan comment[committee] could do much to solve that given the divide between the parties.

    Maybe, maybe not, but I would love to see the political ads quoting what Republicans say in those hearings.

  42. DeD says:

    @Michael Reynolds:

    And James, this may the dumbest thing you’ve ever written. Clueless.

    Honestly, I think James writes these firebomb posts just to stir up shyt. Then, he hits us with the faux outrage when everyone calls him on it and threatens to leave the site. I can’t roll my eyes any harder.

    2
  43. James Joyner says:

    @OzarkHillbilly:

    I would love to see the political ads quoting what Republicans say in those hearings.

    Which is pretty much McConnell’s point. ‘Truth and reconciliation’ may be the only way out of the mess we’re in. But I don’t blame him for not wanting to take that path.

  44. Chip Daniels says:

    It’s an incredibly contentious issue that divides the country on regional and party lines and therefore shouldn’t be rammed through on a 50 percent plus 1 basis.

    Why not?

    1
  45. OzarkHillbilly says:

    @James Joyner: But I don’t blame him for not wanting to take that path.

    I do blame him. He helped pave the road of bad intentions that led us to this point.

    2
  46. Gustopher says:

    Even Joe Manchin seems frustrated by this.

    I like this juxtaposed with the picture of Manchin with his shotgun about to shoot something.

    Also, count me in on the pile on. Our friend Dr. Joyner is … a weird and baffling mix of cynical and naive.

    1
  47. Kathy says:

    @James Joyner:

    Biden stands to benefit politically from such an investigation. Therefore a special counsel might be appropriate.

  48. al Ameda says:

    For me, this is ….. about 33% about Mitch McConnell’s updated Merrick Garland Tactic – Mitch is doing his greaseball best to slow it all down and wait this out until the 2022 midterms, which he many others believe will flip the House to the GOP and …. 67% about likely incrimination of Republican officials in and out of the federal government.

    It appears that Pelosi will have no choice but to appoint a Select Committee.

  49. de stijl says:

    Re: photo up top.

    I am sick to death of congress critters and candidates posing for photos with firearms.

    At least this was a sporting shotgun. Pics with AR-15 types and derivatives is ghastly.