I hate federal commissions. I have always hated federal commissions. Federal commissions are Washington’s way of managing scandals. They work like placebos for political fevers, convincing voters that answers and change are on the way. That is why it is so difficult for me to utter these words: We need a federal election commission. Not the one proposed by some Senate Republicans. And not like past placebo commissions. An honest-to-God, no-holds-barred federal commission to look into the 2020 presidential election.

With the challenge to the certification of election votes, some Republican members of Congress are calling to delay the proceedings for 10 days and impanel a commission to “audit” the results. There is precedent for such a commission. Just not good precedent. Indeed, citing the Electoral Commission of 1877 as a model of good constitutional process is like citing the Titanic as a model of good maritime navigation. The commission was an utter disaster.

The 1876 election commission

The commission was formed after the contested 1876 presidential election of Democrat Samuel Tilden and Rutherford Hayes. Tilden won the popular vote and was just one vote short of the electoral votes needed to win the White House. The election was marred by open fraud, including South Carolina certifying a vote of 101% of the eligible voters.

As a compromise, the commission was formed and consisted of 15 members: five Supreme Court justices and five members from each chamber of Congress. The key was that it was supposed to be composed of seven Democrats, seven Republicans and one independent. However, in a move that seemed calculated to secure his vote for Tilden, the Illinois legislature then moved to appoint the independent, Justice David Davis, to the Senate. If they wanted to buy his vote, it was a colossal failure when Davis decided to take the seat and leave the commission. He was replaced by a Republican, and the commission voted along strictly partisan lines to install Hayes, not Tilden.

In many ways, the Electoral Commission was a model for most federal commissions, which are designed for good politics and not good government.

An example is the 9/11 Commission, which was stacked with reliable allies to guarantee that no one — and no party — would be blamed for the negligence leading to up to the attacks.

The commission spent two years and millions of dollars. It went to almost a dozen countries, interviewed more than 1,000 people and archived over 2.5 million pages of documents. The result was a report that blamed no one specifically and since concluded that Presidents Bill Clinton and George W. Bush were "not well served," in the words of the commission's chairman, by the FBI and CIA.

You see, if everyone is responsible, no one is responsible. Despite showing that the attacks could have been prevented under existing laws and powers, the budgets and powers of both agencies were then massively increased. 

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