Your weekly source for analysis and insight from experts at the Brennan Center for Justice

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The Briefing

This Thursday night, ABC, CBS, and NBC will air the first public January 6th Committee hearing on the insurrection and its origins. It looks to be the most significant set of congressional hearings in decades — and the revival of an important tradition, one that combines lurid melodrama with constitutional law.
Such hearings once happened often. Gavels would bang, scowling lawmakers would demand answers, bureaucrats would quake, and viewers tuned in. Often major legislation would result. It was the essence of congressional oversight. It’s a declining art form.

The Pujo Committee hearings exposed the workings of the “Money Trust” — banks that controlled the financial system through predatory and discriminatory practices — in 1912 and 1913 and led to the creation of the Federal Reserve and a constitutional amendment authorizing the income tax. The Army-McCarthy hearings revealed the Wisconsin senator Joseph McCarthy (R) to be a demagogue (and introduced the world to a sleazy young McCarthy aide, Roy Cohn, mentor decades later to . . . yes, Donald Trump).

In the 1970s, the panel chaired by Sen. Frank Church (D-IA) revealed the CIA’s and FBI’s abuses, ranging from the persecution of Martin Luther King Jr. to JFK’s Mafia-linked girlfriend. That investigation led to policy reforms such as the passage of the Foreign Intelligence Surveillance Act and other mechanisms to curb the Imperial Presidency and out-of-control intelligence agencies.

As a junior high school student in Long Island in 1973, I took summer classes that revolved around watching the Senate Watergate Committee hearings. It was mesmerizing. Former White House Counsel John Dean’s accusations of criminality against President Nixon. The Oval Office taping system that proved Nixon’s guilt. The whole country watched.

Past congressional hearings hold important lessons for the organizers of the upcoming January 6 hearings.
First and foremost, the most successful hearings are bipartisan. They do not always start that way: on the Watergate committee, Republican senator Howard Baker began as a mole for Nixon. Increasingly unnerved by the evidence, he repeatedly came to ask, “What did the president know, and when did he know it,” becoming one of Nixon’s most effective pursuers.

This time around, the role given to Wyoming’s conservative congresswoman Liz Cheney is encouraging. There are not an even number of Republicans and Democrats, but Cheney’s prominence as former caucus chair should give her good standing.

Some big investigations, however, remain partisan from beginning to end. The House held 33 hearings about the attack on the U.S. diplomatic mission in Benghazi, Libya. Preening lawmakers hectored witnesses and berated former Secretary of State Hillary Clinton for 11 hours. Then House Majority Leader Kevin McCarthy bragged, “Everybody thought Hillary Clinton was unbeatable, right? But we put together a Benghazi special committee, a select committee. What are her numbers today? Her numbers are dropping.”

The best hearings show iron discipline about who talks and who asks questions. Robert Kennedy came to public notice when he was the bulldog lawyer for the McLellan Committee in 1958 that exposed organized crime control of labor unions.

The Iran-Contra hearings in 1987, by contrast, misfired. A joint House-Senate committee was investigating the lurid story of how the Reagan administration sold arms to Iran in exchange for American hostages, then used the profits from the secret sales to illegally fund the anti-communist Contra rebels in Nicaragua. The committee was huge, and its 26 members pontificated at length. The conspiracy mastermind, Marine Col. Oliver North, showed up to testify in full military dress and became an icon of right-wing patriotism, besting the committee members.

One thing that history cannot teach is how to manage today’s complicated media landscape. Other great probes succeeded when there were only three television networks. Today’s fractured media means that partisans will react predictably. We will do our own part to amplify them on social media and spell out the implications of it all.

Above all, the committee will have to draw the link between the insurrection and the ongoing attack on American democracy. The Big Lie of widespread fraud in 2020 drove the rioters and continues to inspire laws in states across the country to restrict voting, target citizens of color, and undermine election administration. The attack on democracy is no longer the work just of a defeated president or his flop-sweat acolytes like Rudolph Giuliani, but cool professionals who see a path to steal the next election and deny voters their say.

By all accounts the committee is doing it right. Now it is up to all of us to watch, listen, and shout from the hilltops about the assault on American democracy and the threats to come.

Arizona Is the Epicenter of the Fight for Voting Rights
Arizona is one of 17 states that enacted laws last year making it harder to vote. This year it doubled down with a new restrictive law that could kick up to 192,000 people off the voter rolls. However, Arizonans may have a chance to push back in November with a ballot initiative that would expand voting access and prevent election sabotage. “Arizona has become a key battleground in the fight for voting rights,” Will Wilder writes. “This year may prove to be a pivotal moment in the trajectory of Arizona’s democracy — not to mention America’s.” READ MORE
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SCOTUS Cases to Watch
In addition to its likely decision to overturn Roe v. Wade, the Supreme Court is considering other lawsuits that could push the law further to the right. Three cases on the docket have the potential to transform gun rights, the separation of church and state, and the EPA’s ability to fight climate change. “How the Court approaches these and other cases will be an early test of how much and how quickly its new supermajority intends to flex its muscles to reshape American law and society,” write Alicia Bannon, Eric Ruben, and Harry Isaiah Black. READ MORE
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The ‘Independent State Legislature Theory’
Partisan gerrymandering and election interference efforts across the country have been justified using the dubious “independent state legislature theory,” which purports to give state legislatures broad authority over federal elections. In a new explainer, Thomas Wolf and Ethan Herenstein cover where the theory comes from, why it’s questionable, and the consequences of adopting it — such as state legislators refusing to certify presidential election results. “These high stakes underscore the significance of the challenge the ISLT presents to the courts,” they write. READ MORE
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What Went Wrong with New York’s Redistricting
New York State’s latest round of redistricting produced some of the most politically balanced maps in the nation, but the process left many deeply dissatisfied. Michael Li details three reasons behind the suboptimal results: the lack of a truly independent redistricting process, ambiguous map-drawing rules, and Democrats’ refusal to participate in the remedial process after a court tossed the initial maps. “While there are lessons to be learned from the state’s experience, the answer is to strengthen reforms,” he writes. READ MORE
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Coming Up
VIRTUAL EVENT: Who Gets to Be an American?
Race, Fear, and Surveillance in Domestic Policy
Wednesday, June 8, 1–2 p.m. ET

Americans of color are frequently subjected to undue suspicion, greater surveillance, and other policies that contradict the American promise of equality. Join us for a live discussion on these often discriminatory practices and the efforts to fight against them with moderator Faiza Patel, co-director of the Brennan Center’s Liberty & National Security Program; Sahar Aziz, executive director of the Rutgers Law School Center for Security, Race and Rights; Ann Chih Lin, director of the University of Michigan’s Lieberthal-Rogel Center for Chinese Studies; and Vicki B. Gaubeca, director of the Southern Border Communities Coalition. RSVP TODAY
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This event has been approved for one New York State CLE credit in the category of Diversity, Inclusion, and Elimination of Bias.
Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

News
Michael Li on the nationwide results of the latest redistricting cycle // CBS NEWS
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Dan Weiner on the huge spending increases in gubernatorial races // USA TODAY
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Yurij Rudensky on Ohio’s unconstitutional redistricting maps // COMMON DREAMS
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Eric Ruben on public support for gun control // FRANCE 24
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Have an issue you'd like us to cover? Feedback on this newsletter? Email us at [email protected]
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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.
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