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Biden Should Call for a Commission to Investigate the 2020 Election

It would definitively address conspiracy theories about the election being ‘stolen’—and let Congress and the new administration focus on governing.
December 21, 2020
Biden Should Call for a Commission to Investigate the 2020 Election
Former President Jimmy Carter and former Secretary of State James A. Baker III, chairing a meeting of a blue-ribbon commission on election reform in April 2005. (Mark Wilson / Getty)

Some Republican leaders are finally admitting the obvious: We will have a new president on January 20, 2021 and his name is Joseph Biden. They took a long time reaching this point because President Trump and his allies insisted that they pretend that Trump had won—or was going to win, once his lawsuits alleging a massive conspiracy to steal the election got their chances before the courts.

Many rank-and-file Republicans believed—or at least purported to believe—in this conspiracy theory despite the weak evidentiary basis for it, and many GOP leaders went along for the simple reason of wanting to keep Trump happy while the Georgia Senate run-offs were in play. Others did so presumably because of the party base, or to buy some cheap insurance against getting primaried: Pretending to be willing to defend Trump’s “victory” to the death was a hedge against Trump supporting a primary opponent in the next election cycle.

But having made this deal, congressional Republicans are now stuck.

It is in the interests of no one—other than Trump, his hangers-on, and certain media outlets with die-hard audiences—for a significant number of Republican legislators to keep pretending that Biden won a “stolen victory.” Democrats do not want it, because they will need Republican cooperation to govern effectively. Even if Republicans do not hold the Senate after the Georgia run-off, the Democratic majorities in both chambers will be razor thin and they will need support.

Republicans, meanwhile, should not want their party to cling to the conspiracy theory. No party can thrive if its animating principle rests on such shaky ground. But even if they thought it was true, or might be true, they do not want to remain stuck there because they cannot achieve anything without Biden. They need him to sign legislation; how do they work with him without addressing their claim that he pulled off the biggest fraud in American history? Even if they wanted to ignore it, would Trump let them?

Republicans cannot pull themselves out of this hole without help.

Help is available, in the form of a time-honored mechanism that has lifted American leaders out of other political pits so that they can get back to the business of governing, with all the normal political haggling associated therewith. I speak of the “blue-ribbon commission”—a gathering of respected leaders from both parties, generally beyond the point of having their own further career ambitions, tasked with investigating what happened and reporting back to the American people with recommendations on how to fix whatever problems they discovered.

Both governmental and nongovernmental commissions have been convened after contentious elections in the past. Following the 2000 election and its suspenseful Florida recount, a National Commission on Federal Election Reform was privately convened by foundations, academics, and think tankers; prominent out-of-office Republicans and Democrats, including former presidents Gerald Ford and Jimmy Carter, were involved in that effort, which resulted in a report with a slate of recommendations. Following the 2004 election, a later iteration of that commission—chaired by Carter and former secretary of state James Baker—issued a report making recommendations about the use of voter IDs. President Obama, after the 2012 election that returned him to office, issued an executive order establishing a Presidential Commission on Election Administration; its final report, released in early 2014, offered a number of recommendations regarding the efficient management of polling places.

What’s called for this time around, though, is something different, since what is needed is not a discussion of recommendations based on facts that are widely understood, but rather an investigation by trusted figures into a swirl of unsettled allegations. For that kind of problem, another model of commission is appropriate.

Following the terrorist attacks of September 11, 2001, political Washington flirted with a debate that could have paralyzed the government: Did more blame for the attack rest with the Bush administration, on whose watch it occurred and who received the most recent, albeit ambiguous, warnings? Or did more blame rest with the Clinton administration, which had bequeathed the Bush administration a stovepiped warning system, had watched fecklessly as the threat from Osama bin Laden emerged, and on whose watch most of the planning for the terrorist attack had occurred? Had political leaders been preoccupied with pointing fingers, they could not have joined hands to do the hard work of actually bringing the terrorists to justice.

And there was another, even more insidious threat in play: “Truther” conspiracy theories quickly poisoned the debate about 9/11 with absurd tales of an “inside job” in which the U.S. government attacked itself so as to . . . well, there never was a plausible explanation for why the government would do something like that. The truther conspiracy theory was the most implausible notion about a national crisis until Sidney Powell started advancing the thought that pro-Communist sympathizers in the CIA collaborated with Venezuelan dictator Hugo Chávez, George Soros, and Republican Georgia Governor Brian Kemp to give that state’s electoral votes to Biden.

Enter the National Commission on Terrorist Attacks Upon the United States, which was created in late 2002 and released its findings in July 2004. The report of the 9/11 Commission stands today as one of the most impressive pieces of careful investigation. It pulled no punches—finding fault with the actions of all parts of the U.S. government and both parties—but it also provided a comprehensive rebuttal of the conspiracy theorists. Of course, the myths never entirely disappeared, but they had no real political purchase after 2004—and nor did the most partisan of interpretations of culpability. The country was able to move forward.

President-elect Biden should call for a similar bipartisan commission of worthies to investigate the claims of irregularities in the 2020 election and to report back any reforms that are needed. This commission should be governmental, created either by executive order or via legislation signed by Biden. Like the 9/11 Commission—and unlike previous electoral commissions—it should have a robust investigatory capacity.

Why should Biden bother, if he believes there is no credible evidence of fraud? The question answers itself: Why should he not, if he is confident there is no credible evidence the election was stolen? Would a commission lend credibility to bogus claims that have already been debunked numerous times in the media? Perhaps—but it would also create a clear record of definitive rebuttals, and would allow more responsible concerns to get fully aired as well. Fair-minded observers have already identified ways in which the election process could be improved. It makes no sense to delay counting mail-in ballots, for instance. This arcane procedure is entirely to blame for the “surprise” that Trump seemed to be winning and then suddenly saw his advantage disappear with “dumps” of votes. Likewise, there are always ways to improve on election management, such as urging states to adopt more standardized procedures. It would appropriate, too, since many millions more Americans voted by mail than ever before because of the pandemic, to include a detailed study of how well that process worked and how it could be improved.

And, in the wake of recent news that Russian cyber units conducted the most grievous hack of sensitive government networks in history, perhaps it is not unreasonable to take another look at how robust our election processes are to foreign interference.

Trump would have been well served to adopt this mechanism in January 2017, as a way of dealing with the concerns raised about Russian interference in the 2016 election. His failure to do so goes some distance to explaining why the Russian collusion question hung over his administration for so long.

Biden has a chance to park this issue where it will do minimal harm. The fact that the issue is being looked at by a National Commission on 2020 Electoral Concerns—chaired by, say, former Senators Lamar Alexander and Carl Levin—would give Republicans a reason not to insist that Congress take up the issue of investigative hearings on day one, saving Democrats from the distraction of defending against pointless partisan show trials.

Otherwise, that is the trap Republicans will have sprung on themselves. Having claimed for weeks that the election was riddled with problems that throw the entire outcome in doubt, how can they drop the charge and start engaging with Biden on normal, albeit partisan, terms? They can return to normal politics only if they can credibly point to a vehicle that is addressing those concerns. Biden should build it for them.

Peter D. Feaver

Peter D. Feaver is a professor of political science and public policy at Duke University and the director of the Duke Program in American Grand Strategy.