Establishing Procedures for Credible Advisory Commissions
There were shortcomings in the process through which the Carter-Baker Commission adopted its Report. The Commission would have benefited from greater emphasis on expert testimony and empirical data, more transparency, clear rules established from the outset, and an adequate opportunity for dissent. Future advisory commissions should consciously develop fair procedures to enhance the quality of their deliberations and the credibility of their recommendations.
Especially with election law-where the judgment of incumbent politicians is sometimes clouded by self-interest-credible advisory commissions have the potential to play an important role in the development of law. Advisory commissions can focus public attention on the most pressing issues and provide a forum for expert analysis and independent factfinding.
An advisory commission cannot pass a law, allocate government funds, or invalidate an existing election practice-its primary power rests in its credibility. In addition to recruiting a panel of well-respected commission members, a fair process - one that is designed to draw on the best available research and to develop conclusions based on neutral analysis and deliberation-is critical to earning the public's trust. Absent such a process, a commission's decisions are likely to be dismissed by skeptics as predetermined, politically motivated, or uninformed.
A well-functioning independent commission should hear testimony from as many of the top experts as possible, including contrary opinions on all matters under review. The Carter-Ford National Commission on Federal Election Reform of 2001, for example, held four all-day public hearings in various parts of the country (Georgia, Michigan, Texas, and Los Angeles), and heard from 52 witnesses. In contrast, the Carter-Baker Commission held only two half-day public hearings (in Washington, D.C. and Texas), and heard from 21 witnesses. While a keystone of the Carter-Baker Commission's report is its voter ID proposal, it did not call as witnesses many of the most established experts on the issue. A commission's reliance on anecdotes and political sound bites-rather than empirical data, testimony by top experts, and rigorous analysis-undermines its credibility.
A lack of transparency can also compromise the credibility of a commission. Without significant public input and scrutiny of the commission's deliberations, a commission is more likely to overlook important facts and perspectives. Rather than furthering objective deliberation, confidentiality and closed meetings can become tools to embed a particular agenda without having to respond to opposing voices.
Commission rules should be developed, agreed upon, and articulated clearly in written form at the outset. The imposition of the 250-word limit on dissent at its last meeting is one example of the Carter-Baker Commission's failure in this regard. Imposing new rules in the middle (or at the end) of the game gives the appearance that commissioners are using procedural devices to promote their own policy preferences.
There is also the question of whether the executive director and the co-chairs of the commission should set the agenda with minimal input from other commissioners and the public, select which witnesses will be called, establish all of the procedural rules, and control the staff and the commission's other resources. Delegating such responsibilities broadly among other members of the commission may be more democratic, but may lack the efficiencies of concentrating them in the hands of the executive director and the co-chairs. However responsibility is allocated, such facts should be clearly disclosed so that citizens can assess whether the leadership's personal policy preferences shaped the commission's agenda, procedures, and witness lists, and ultimately the commission's policy recommendations.
Finally, a commission should provide adequate room for dissent, which identifies for the public and policymakers the areas of substantial disagreement. The Carter-Baker Commission's 250-word limit on dissent is clearly insufficient to adequately discuss issues of national importance (a typical newspaper commentary is 650 words). The 2001 Carter-Ford Commission did not impose such extreme limits. For example, the additional statement by Commissioner John Seigenthaler (joined in part by Commissioner Griffin Bell) is 1227 words.
Several members of the 2005 Carter-Baker Commission have discouraged dissent based on their stated belief that the Carter-Baker Report will have greater political impact if its provisions appear to enjoy unanimous support. But if a commission chooses to address contested issues and fails to develop recommendations to build real consensus, it should not later impose rules that stifle opposing views to give the false impression of consensus or to mask the substantive flaws in the commission's proposals. An advisory commission-especially one that purports to promote democracy-undermines its legitimacy when it attempts to advance its proposals by severely curtailing speech. More generally, a commission that prioritizes maximizing its own political influence over rigorous analysis compromises its credibility with the American people.