The Rise and Permanence of Quasi-Legislative Independent Commissions

Abstract

This article explores Congress’s recent trend of creating quasi-legislative independent commissions to augment its own investigations, and determines what factors may enhance the chance that a commission will prove successful. Although Congress has never been the lone forum for investigations, since 2001 the legislature has been empanelling entities of outside experts to investigate the most significant economic and national security issues. This Article begins with a history of governmental investigations in America, highlighting activity by Congress, independent agencies, and presidential commissions. Next, it describes the modern political, communications, and scheduling strains on Congress that have created an opportunity for new types of investigations, and offers case studies of three quasi-legislative independent commissions – the Commission on Terrorist Attacks Upon the United States, the Commission on Wartime Contracting in Iraq and Afghanistan, and the Financial Crisis Inquiry Commission. Then, this Article scrutinizes these case studies and concludes that a quasi-legislative independent commission is most likely to be successful where it has a limited scope and investigative flexibility, features members seen as free from political pressures, uses discretion in compelling information, and ties its mission to larger legislative reform. Finally, this Article concludes by offering advice to practitioners on how to best represent clients before quasi-legislative independent commissions.