The Fight over a Religious-Freedom Commission Heats Up

Sen. Marco Rubio (R., Fla.) on Capitol Hill, April 10, 2019 (Erin Scott/Reuters)
A proposal to adjust the remit of the U.S. Commission on International Religious Freedom has divided lawmakers and bureaucrats.

In 1998, Congress created the United States Commission on International Religious Freedom (USCIRF) to fight religious-freedom violations around the globe and to make relevant policy recommendations to the State Department, Congress, and the White House. In September of this year, the Senate put forward a bill that would change the mission of the USCIRF to include opposition to the “abuse of religion to justify human rights violations,” and would adjust the roles of USCIRF’s nine commissioners. Introduced by senators Marco Rubio (R., Fla.), Cory Gardner (R., Colo.), Bob Menendez (D., N.J.), Richard Durbin (D., Ill.), and Chris Coons (D., Del.), the proposed legislation has sparked a fight in Washington.

USCIRF was designed to be bipartisan. It consists of nine commissioners, four of whom are appointed by members of the party that does not control the White House. The strong emphasis placed on the voices of the opposition party was meant to create a body that would function above the national political divide. This has largely succeeded.

The changes will have to be bipartisan, too. Reauthorizing the commission requires consensus between two parties that have very disparate priorities on matters of religious liberty. The ideological transformation of the Democratic party since 1998 has put the future of the commission in peril. Republicans are now negotiating with a party that no longer holds the commission in the same regard it once did. As former USCIRF commissioner Clifford D. May told National Review: “There are those on [the] Left, both in Congress and pressuring Congress, whose goal is to transform USCIRF into a politicized bureaucracy. . . . They dislike the very idea of a U.S. government agency committed to religious freedom.”

Another former USCIRF commissioner, Kristina Arriaga, recently resigned in the wake of the legislation, which she felt would undermine the commission’s effectiveness. Arriaga argued in the Wall Street Journal earlier this month that the bill, as proposed, would “shift [USCIRF’s] stated purpose and burden commissioners with new bureaucratic hurdles.” To Arriaga, the provision of the bill that would authorize the commission to oppose the “abuse of religion” is a major obstacle. What might constitute a “human rights violation” to a certain type of federal bureaucrat? Where does it end? With America, Arriaga tells National Review, as the de facto arbiter of what constitutes authentic religious expression abroad: The bill “would make it mandatory for the United States government to define what religion is, and which ‘human rights’ are more important than religious freedom.” May was similarly unnerved by the proposed mission change: “It would force commissioners to act like theologians. Is this an authentic expression of Islam, for instance? What is an ‘abuse’ of Christianity? These are questions that are beyond the scope of USCIRF.”

But Isaac Six, a former director of congressional affairs and communications at USCIRF, is less pessimistic. Six, who worked on several reauthorization efforts while at the commission, agreed with some of the concerns Arriaga raised in her op-ed — it “would not be wise to expand the mandate” of USCIRF as proposed, he said. Yet he lauded Rubio and Menendez for working toward a four-year extension of the commission, unusually long given the difficulty in reaching consensus on the commission’s role. “A four-year reauthorization agreement [would be] quite an accomplishment,” Six said. “Senator Rubio and his staff have gone over and above to make sure USCIRF is reauthorized.”

Indeed, Rubio has taken a leadership role in the reauthorization process, and has, per a source familiar with the situation, been working to “negotiate the Democrats down” from their more radical proposals to remake the commission. Even the bill’s opponents recognize the precarious position Rubio finds himself in, given the political football that the commission has become in a divided Congress. May told National Review that the flaws with proposed changes — which are currently undergoing revisions in the Senate committee process — are the fault not of Rubio, but of progressives in the Senate who don’t care for USCIRF or its mission. “Rubio’s office, I think, has been making a good-faith effort to reach bipartisan consensus on useful reforms while preserving USCRIF’s integrity and independence.” Some on the Left, he says, “would be quite happy to kill USCIRF, once and for all.”

Another obstacle in the way of reauthorization is just how much autonomy the commissioners should have. “The commissioners need to be carefully selected,” May said. “They shouldn’t be chosen as rewards to donors or friends who have no qualifications.” Commissioners serve as volunteers, and, as members of an administrative agency that sees little federal oversight, are given plenty of latitude. The success of the commission relies both on the competency and vision of the commissioners and on the willingness of subordinate staff to forward the aims of their superiors: “The staff should be working for the commissioner, not the other way around,” May said.

The chain of command seems clear enough. An executive director — a consensus appointment of the commissionership — serves beneath the nine commissioners and is meant to function like the commissioners’ chief of staff. The executive director then hires the rank-and-file staff. Of these, former commissioner May says, some are “terrific” while others are “headstrong.”

In this respect, USCIRF faces the same challenges as government organizations across the capital: Too many functionaries are too eager to advance their own agendas against the wishes of their superiors. May, who has worked in numerous capacities in Washington, recalled having to confront a group of Foreign Service officers who disliked George W. Bush’s agenda and, in a bit of retaliation or insubordination, evaded the directives of their superiors. “I remember the Bush administration sending me to a public-affairs office at a European embassy,” he said. “I told them, if you were part of a PR agency, and you weren’t serving the client, you’d be fired.”

With that in mind, critics of the initial draft of the new legislation have also pointed to a section that would allow staff to bring litigation, funded by federal tax dollars, against the commissioners, who serve in a volunteer capacity and would have to pay for their own defense out-of-pocket. “If you make it easier for staff to litigate against the commissioners, the very fear of litigation is chilling. The staffer is there to help the principal, not the other way around,” May said.

Each of these concerns is understandable. Each reflects the challenges faced by our broken and bloated bureaucracy in Washington. But as Washington quibbles over the potential changes — which are, of course, subject to changes of their own — it’s worth considering who would be the victims should the commission function ineffectively or cease to exist: oppressed religious minorities around the world.

“The right to believe or not believe is the most fundamental right a person has,” May said. “That’s the point of religious freedom and the point of USCIRF. Other rights are built on this foundation.” Religious minorities abroad can ill afford to have that right further imperiled by a derelict and divided Congress. Only time will tell whether the Senate can put partisan bickering aside to reauthorize the commission while keeping it faithful to the mission it was conceived to fulfill.

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