Introduction

Congress has created temporary advisory commissions to assist in the development of public policy. Recently, Congress has created commissions following crises, including the September 11, 2001, terrorist attacks,¹ the 2008 financial crisis,² and synthetic opioid trafficking.³ In such situations, advisory commissions may provide Congress with a highly visible forum to convene expertise that might not exist within the legislative environment; allow for the in-depth examination of a complex, crosscutting policy problem; and lend bipartisan credibility to a set of finding and recommendations.

As Congress considers its range of responses to the Coronavirus Disease 2019 (COVID-19) pandemic, the creation of one or more congressional advisory commissions is an option that could provide a platform for evaluating various pandemic-related policy issues. Past congressional advisory commissions have retrospectively evaluated policy responses, brought together diverse groups of experts, and supplemented existing congressional oversight mechanisms. Conversely, policymakers may determine that creating an advisory commission is unnecessary and instead prefer to utilize existing congressional oversight structures, such as standing or select committees,⁴ or already established oversight entities.⁵

This report provides a comparative analysis of six proposed congressional advisory commissions introduced to date in the 117^th Congress (2021-2022) that would investigate various aspects of the COVID-19 pandemic. The six proposals are located in

• H.R. 834 (National Commission on the COVID-19 Pandemic);
• H.R. 1306 (Commission on the Coronavirus Pandemic in the United States);
• H.R. 2212 (Pandemic Preparedness, Response, and Recovery Commission);
• S. 412 (Commission on the Coronavirus Pandemic in the United States);
• S. 1001 (Pandemic Preparedness, Response, and Recovery Commission); and
• S. 3203 (National Commission on the COVID-19 Pandemic).

The structures of the six proposed commissions are similar in many respects, both to each other and to previous independent advisory entities established by Congress.⁶ Specifically, the proposed commissions would be classified as congressional advisory commissions because they would (1) exist temporarily; (2) serve in an advisory capacity; and (3) report a work product detailing the commission's findings, conclusions, and recommendations. Many of the proposed commissions also have distinctive elements, particularly concerning membership structure, appointment structure, and time line for reporting their work products to Congress.

This report compares the (1) membership structure, (2) appointment structure, (3) rules of procedure and operation, (4) duties and reporting requirements, (5) powers, (6) staffing issues, and (7) funding for each of the COVID-19 commissions proposed in the 117^th Congress. The Appendix, at the end of this report, provides a side-by-side comparison of major provisions of the six proposals.

Membership Structure

Congress has created a variety of appointment structures for the naming of congressional advisory commission members. Generally, commission statutes require that elected leaders (e.g., the President or congressional leaders) appoint commissioners, often with a specified balance between the parties,. Commonly, statutory language specifies whether commissioners may be current Representatives or Senators; whether they may be current federal, state, local, or tribal government employees or officials;⁷ or whether they should be private citizens with specific expertise or skills.

Congress might consider several matters related to a commission's membership structure. They include commission size, membership qualifications, commissioner compensation, and requirements for partisan balance.

Size

There is significant variation in the size of congressional advisory commissions. Among the 161 identified congressional advisory commissions statutorily created between the 101^st Congress (1989-1990) and the 116^th Congress (2019-2020), the median size was 12 members.⁸ The smallest commission had 5 members and the largest had 33 members.⁹

The membership structure of each of the six proposed commissions would be similar to previous independent advisory entities created by Congress. Four proposals (H.R. 834, H.R. 1306, S. 412, and S. 3203) call for a commission of 10 members,¹⁰ and two proposals (H.R. 2212 and S. 1001) call for a commission of 9 members.¹¹

Qualifications

Congressional commission legislation often includes language that requires or suggests that commission members possess certain substantive qualifications.¹² Such provisions arguably make it more likely that the commissioners are genuine policy experts, which may improve the commission's final work product.¹³

Each of the six proposed commissions includes at least one qualification on membership. In total, the measures contain six different types of qualifications. They are

• a prohibition on the appointment of federal, state, local and/or tribal government officials (H.R. 834, H.R. 1306, S. 412, S. 3203);¹⁴
• a prohibition on the appointment of individuals involved in the federal COVID-19 pandemic response (H.R. 1306, S. 412);¹⁵
• a prohibition on the appointment of individuals who have a conflict of interest with the commission's duties and responsibilities (H.R. 834, S. 3203);¹⁶
• a "Sense of Congress" that commissioners are prominent U.S. citizens nationally recognized in certain fields (H.R. 834, H.R. 1306, S. 412);¹⁷
• a requirement that members are prominent citizens with national recognition in certain fields (H.R. 2212, S. 1001);¹⁸ and
• a requirement that each political party appoint at least 1 former governor, 1 public health expert, and 1 economic policy expert to the commission (H.R. 1306, S. 412).¹⁹

Compensation of Commission Members

Compensation generally takes two forms: direct compensation (pay) and reimbursement for travel expenses. Approximately 30% of congressional advisory commission statutes specifically authorize that commissioners receive direct compensation. When commissioners are paid, the statute most frequently limits compensation to the daily equivalent of level IV of the Executive Schedule.²⁰ Nearly all commissions provide reimbursement for travel expenses.

Each of the six proposals would provide that commission members are compensated at a rate "not to exceed the daily equivalent of basic pay" for Level IV of the Executive Schedule, "for each day during which that member is engaged in the actual performance of duties of the Commission."²¹ Each proposed commission would also compensate members for travel expenses, including a per diem.²²

Partisan Limitations

Most congressional advisory commissions (70%) have a limit on the number of members appointed from the same political party. Each of the six proposed commissions includes a limit on commission members from each party. H.R. 834 would require that "each major political party shall be represented by not fewer than five members of the Commission."²³ Each of the other commissions would specify that "not more than 5 members of the Commission shall be from the same political party."²⁴

Appointment Structure

No one system exists for appointing commission members. Past appointment considerations have included partisan balance, how to fill vacancies, and the time limit for making appointments. Commission legislation commonly uses at least one of three common appointment schemes. They are as follows:

• 1. establishing legislation directly designates members of the commission, such as a specific Cabinet official or congressional leader;²⁵
• 2. congressional leaders make appointments, often with a balance between the parties;²⁶ or
• 3. selected leaders, such as committee chairs and ranking members, make appointments themselves or recommend candidates to congressional leaders for appointment.²⁷

Each of the six commission proposals would have one appointment made by the President (who would serve as the chair)²⁸ and the rest by congressional leaders. Figure 1 shows the appointment authority for each proposed commission, including the section on the chair and vice chair, if applicable.

Figure 1. Proposed COVID-19 Commission Appointment Authority Using Congressional Leadership in the first session of the 117th Congress (2021)

Source: CRS analysis of H.R. 834, H.R. 1306, H.R. 2212, S. 412, S. 1001, and S. 3203. Note: In H.R. 834, H.R. 1306, S. 412, and S. 3203, the vice chair would be "appointed by the leader of the Senate whose political party is other than the political party of the President (regardless of whether such individual is the majority or minority leader), in consultation with the leader of the House of Representatives whose political party is other than the political party of the President (regardless of whether such individual is the Speaker of the House of Representatives or the minority leader)." The table text notes the position of the appointing officials in the first session of the 117th Congress (2021).

In general, a commission's appointment scheme can affect both the commission's ability to fulfill its statutory duties and its final work product. For instance, if the commission's statute only provides for the appointment of Members of Congress, it arguably might not have the technical expertise or diversity of knowledge to complete its duties within the time given by statute. Similarly, if the appointment scheme includes qualifying provisos so specific that only a small set of private citizens could serve on the panel, the commission's final work product may arguably only represent a narrow range of viewpoints. Four bills (H.R. 834, H.R. 1306, S. 412, and S. 3203) would prohibit the appointment of federal, state, local, or tribal government officers or employees.²⁹ None of the proposed COVID-19 commission bills specify whether Members of Congress might serve on the commission, although each bill would likely prohibit the appointment of Members of Congress since they might be considered federal employees.

Partisan Balance in Appointment Authority

Congress structures most congressional advisory commissions to be bipartisan, with the congressional leaders of the two major parties appointing an even (or near-even) number of members. A bipartisan character may make a commission's findings and recommendations more politically acceptable to diverse viewpoints. Similarly, commission recommendations that are perceived as partisan may have difficulty gaining support in Congress.

In some cases, bipartisanship also can arguably impede a commission's ability to complete its mandate. In situations where Congress tasks a commission with studying divisive or partisan issues, the appointment of an equal number of majority and minority commissioners may serve to promote partisanship within the commission rather than suppress it, raising the possibility of deadlock where neither side can muster a majority to act.

Each of the six proposals would employ an appointment structure where leaders in both the congressional majority and minority parties would make an equal number of appointments. H.R. 2212 and S. 1001 would provide two appointments each to the Senate majority leader, Senate minority leader, Speaker of the House, and House minority leader, in addition to one presidential appointment.³⁰ H.R. 834, H.R. 1306, S. 412, and S. 3203 would provide two appointments each to the senior member of the majority leadership of the Senate, the senior member of the majority leadership of the House, the senior member of the minority leadership of the Senate, and the senior member of the minority leadership of the House. Additionally, the vice chair would be "appointed by the leader of the Senate whose political party is other than the political party of the President (regardless of whether such individual is the majority or minority leader), in consultation with the leader of the House of Representatives whose political party is other than the political party of the President (regardless of whether such individual is the Speaker of the House of Representatives or the minority leader)," and one appointed by the president.³¹ See Table A-1 for more specific appointment authority in each measure.

Vacancies

All six proposals would provide that commission vacancies do not affect the commission's powers and would be filled in the same manner as the original appointment.

Timeline of Actions

Congressional advisory commissions exist temporarily and have a statutorily defined timeline to complete a work product. Statutory language generally includes benchmark dates for specific tasks. The most common deadlines included in commission statutes are those for

• member appointment;³²
• first meeting;³³
• report due date;³⁴ and
• termination of commission activities.³⁵

Figure 2 reports the deadlines for the six proposed commissions.

Figure 2. Proposed COVID-19 Commission Deadlines

Source: CRS analysis of H.R. 834, H.R. 1306, H.R. 2212, S. 412, S. 1001, and S. 3203. Notes: Several conditions apply to the timing of interim and final reports. In H.R. 1306 (§13(e)) and S. 412 (§13(e)) "the submission and publication of the final report ... may be delayed by 90 days upon the agreement of a majority of the members of the Commission. The Commission may make not more than three 90-day extensions. The Commission shall notify the President, Congress, and the public of each such extension." In H.R. 2212 (§5(g)-(h)) and S. 1001 (§5(g)-(h)), after the commission issues its initial report, the commission would solicit public comments on the report and consult with the chair and ranking member of the House and Senate committees of jurisdiction and the heads of agencies with enforcement jurisdiction on the content of the initial report. Within 90 days of the conclusion of the comment period, the commission would issue a revised final report, including legislative language to implement the commission's recommendations. In S. 3203 (§2(j)(3)), the commission could extend the deadline for the final report by not more than 120 days with a vote of no fewer than eight commission members. The commission would not be allowed to vote for more than one extension.

Rules of Procedure and Operations

Absent statutory guidance—either in general law or in the authorizing legislation—advisory commissions have varied widely in how they adopt their rules of procedure. In general, three models exist: formal written rules, informal rules, and the reliance on norms. Individual advisory entities use all three of these models for different types of decisionmaking.

A variety of factors may influence the choice to adopt written rules or rely on informal norms to guide commission procedure. These include the entity's size, the frequency of meetings, member preferences regarding formality, the level of collegiality among members, the commission's duration, and the amount of procedural guidance provided by the authorizing statute. None of the six COVID-19 commission proposals would require the adoption of written rules or specify procedures for adopting rules.

Statutory language routinely specifies other rules of procedure or operations. These include quorum requirements, public access to commission meetings and reports, and the applicability of the Federal Advisory Committee Act (FACA). For a comparison of each proposed commission's specified rules of procedures and operations, see Table A-1.

Quorum

Most commission statutes define a quorum for commission business. Usually, the statute defines a quorum as a majority of commission members, but occasionally the statute requires a supermajority. All six bills would establish a quorum requirement. H.R. 834, H.R. 1306, S. 412, and S. 3203 would all set quorum at 6 of 10 members.³⁶ H.R. 2212 and S. 1001 would set quorum at 5 of 9 members.³⁷

Public Access

Public access to commissions can take several forms. Most common are requirements that commission meetings be open to the public and that the commission's final report is publicly available. All six bills would require commission meetings to be open to the public.³⁸ Each bill would also require that commission reports are publicly available.³⁹

FACA Applicability

The Federal Advisory Committee Act mandates certain structural and operational requirements, including formal reporting and oversight procedures, for certain federal advisory entities that provide advice to the executive branch.⁴⁰ Each bill would exempt the commission from FACA.⁴¹

Duties and Reporting Requirements

Most congressional commissions are policy commissions—temporary bodies that study particular policy problems or review a specific event and report their findings to Congress.⁴²

General Duties

All six of the proposed commissions would have duties that are analogous to past policy commissions. While the specific mandates of each proposed commission would differ somewhat, all six proposed commissions would investigate aspects of the COVID-19 pandemic and submit one or more reports to Congress and the President. Generally, the reports would include the commission's findings, conclusions, and recommendations for legislative action.⁴³ Table 1 reports the general duties of the six proposed commissions (excerpted from the Congress.gov summaries of each measure).

Reports

Each proposed commission would issue reports detailing its findings, conclusions, and recommendations. Reports generally take on two forms: interim reports and final reports. Interim or initial reports allow the commission to provide an update(s) to Congress and the President on the status of its activities or otherwise publish information on aspects of the commission's work. H.R. 2212, S. 1001, and S. 3203 would all require some form of interim report.⁴⁴ H.R. 834, H.R. 1306, and S. 412 would make interim report(s) optional.⁴⁵

Final reports provide details of the commission's work, findings, and recommendations. In some cases, suggested legislative language accompanies the final reports. Each of the six commissions would be required to submit a final report to Congress and the President.⁴⁶ H.R. 2212 and S. 1001 would require the commission to issue a report, consult with the chair and ranking members of relevant House and Senate Committees, solicit public feedback, and subsequently make final report adjustments.⁴⁷

Commissions are generally required to submit their final report within a specific timeframe. Each of the six proposed commissions would have a specified time limit on submitting its final report. Those timeframes are listed in Figure 2.

Expedited Procedures

Congress sometimes enacts expedited, or "fast track," rules in law providing for the consideration of legislation in one or both chambers. These statutory provisions contemplate that the House and Senate will consider certain bills or resolutions under expedited procedures instead of the regular parliamentary procedures used to consider most legislation.⁴⁸ Such expedited procedures are sometimes included in the authorizing language creating congressional advisory commissions, and establish special procedures for committee and floor action on the commission's recommendations.⁴⁹ Such procedures establish strict deadlines on committee consideration of a bill embodying the commission's recommendations and limit debate and amendment on the measure when it is considered on the chamber floor. Significantly, such "fast track" procedures allow a simple majority of the Senate to call up and reach a final vote on a commission bill without having to assemble a supermajority to end debate (invoke cloture).

Two commission bills (H.R. 2212 and S. 1001) contain expedited procedures providing for the consideration of "recommended legislative language to implement the recommendations" contained in the commission's final report.⁵⁰

Commission Powers

Each of the six bills would provide the proposed commission with certain powers (see Table A-1 for specifics). One broad issue for commissions is who might be authorized to execute such powers. In general, in some cases, the commission itself executes its powers, with the commission deciding whether to devise rules and procedures for the general use of such power. In other cases, the legislation specifically authorizes the commission to give discretionary power to subcommittees or individual commission members.⁵¹ Finally, the legislation itself might grant certain powers to individual members of the commission, such as the chair.⁵²

Hearings and Evidence

Commissions commonly hold meetings to collect information and hear testimony from outside experts or government officials in the course of conducting a study. All six bills would provide the proposed commission with the power to hold hearings, take testimony, and receive evidence.⁵³ Four commission bills (H.R. 834, H.R. 1306, S. 412, and S. 3203) would provide the power to administer oaths to witnesses.⁵⁴

Subpoenas

On occasion, Congress grants a congressional advisory commission subpoena authority to help the commission gather information. Congressional commission subpoena authority is relatively infrequent. Since the 101^st Congress (1989-1990), CRS has identified 12 congressional commissions as having subpoena authority.⁵⁵

Four of the bills would provide the commission subpoena power. H.R. 834, H.R. 1306, S. 412, and S. 3203 would provide that subpoenas could only be issued by either (1) agreement of the chair and vice chair, or (2) an affirmative vote of a specified number of commissioners.⁵⁶ H.R. 834 and S. 3203 would require six commissioners to vote to issue a subpoena. H.R. 1306 and S. 412 would require an affirmative majority vote.

Administrative Support

All six bills would provide that the commission may obtain administrative support services from the General Services Administration (GSA). GSA provides administrative support to dozens of federal entities, including congressional advisory commissions.⁵⁷ Each of the six bills would provide that the commission reimburse GSA for its services.⁵⁸ Two bills (H.R. 2212 and S. 1001) would also provide that the commission may obtain space for the commission from the Architect of the Capitol.⁵⁹ Four bills (H.R. 834, H.R. 1306, S. 412, and S. 3203) also specify that other departments or agencies could provide the commission with funds, facilities, staff, and other services.⁶⁰

Other Powers

Commissions generally require statutory authority to engage in certain activities. These might include information gathering, contracting, using the U.S. mail in the same manner as an executive branch agency, or accepting donations or gifts. Figure 3 lists common commission powers included in the six commission bills.

Figure 3. COVID-19 Commissions: Other Common Powers

Source: CRS analysis of commission bills.

Staffing

Commission statutes generally authorize the commission to hire staff. Rather than mandate a specific staff size, many commission statutes specifically authorize the appointment of a staff director and provide the commission authority to hire other personnel as necessary, subject to the limitations of available funds. Most congressional commission statutes also authorize the commission to hire consultants, procure intermittent services, and request that federal agencies detail personnel to aid the commission's work. Each of the COVID-19 commission proposals contains staffing provisions commonly found in congressional advisory commission legislation.

Director and Commission Staff

All six bills would provide that the commission may hire staff without regard to certain competitive service laws and would limit staff salaries to level V of the Executive Schedule.⁶¹ Several other staffing features are included in the bills. They are as follows:

• Two bills (H.R. 1306 and S. 412) would require that staff be nonpartisan.⁶²
• Two bills (H.R. 2212 and S. 1001) would require that the "executive director of the Commission shall be subject to confirmation by the Commission."⁶³
• Two bills (H.R. 2212 and S. 1001) would require that the Congressional Accountability Act of 1995 apply to the commission and its employees.⁶⁴

Detailees

When authorized, some commissions may have federal agency staff detailed to the commission. All six bills would authorize the detail of federal employees to the commission, without reimbursement.⁶⁵

Experts and Consultants

All six bills would provide the commission with the authority to hire experts and consultants. Four bills (H.R. 834, H.R. 1306, S. 412, and S. 3203) would limit the rate of pay for consultants to level IV of the Executive Schedule.⁶⁶ Two bills (H.R. 2212 and S. 1001) would limit the rate of pay for consultants to level V of the Executive Schedule.⁶⁷

Security Clearances

Four bills (H.R. 834, H.R. 1306, S. 412, and S. 3203) would require federal agencies and departments to cooperate with the commission to provide members and staff appropriate security clearances.⁶⁸

Funding and Costs

Commissions generally require funding to meet their statutory goals. When designing a commission, policymakers might consider both how Congress might fund the commission and how much money the commission would be authorized to receive. Factors that might affect commission expenditures, and therefore funding, include member and staff salaries and benefits, contracting, administrative support reimbursement, the number of meetings, and travel expenditures. A commission's duration can also significantly affect its cost; past congressional commissions have been designed to last anywhere from several months to several years.⁶⁹

All six proposals specify a commission funding mechanism. Four bills (H.R. 834, H.R. 2212, S. 1001, and S. 3203) would authorize the appropriation of "such sums as may be necessary" for the commission, with the money available for the life of the commission.⁷⁰ Two bills (H.R. 834 and S. 3203) further specify that if the commission requires additional funds, the chair must notify Congress.⁷¹ Two bills (H.R. 1306 and S. 412) would authorize $50 million, with the money available until expended.⁷²

Appendix. Comparison of Proposals to Create a COVID-19 Commission

Table A-1 provides a side-by-side comparison of major provisions of the six bills analyzed in this report to create a congressional advisory commission on COVID-19. For each bill, Table A-1 compares the membership structure, appointment structure, rules of procedure and operation, duties and reporting requirements, proposed commission powers, staffing provisions, and funding.