Three Cheers for Paper Hearings

On April 9, 2020, at 9:30 a.m., the Senate Armed Services Committee (SASC) will hold a hearing on the Energy Department’s budget posture. The hearing will feature some heavy hitters, including Dan Brouillette, the Secretary of Energy; Lisa Gordon-Hagerty, the Administrator of the National Nuclear Security Administration; Ellen Lord, the Undersecretary of Defense for Acquisition and Sustainment; and Adm. Charles Richard, the Commander of U.S. Strategic Command.

But thanks to the pandemic, you won’t be able to tune in to watch the proceeding. Instead, it will be a “paper hearing”—a puzzling term that a SASC press release describes as follows:

This Paper Hearing format will involve the public posting of all witness testimony as well as the SASC Chairman and Ranking Member opening statements on the scheduled hearing date and time. The committee will collect questions from all SASC members related to the hearing topic, to be transmitted to the Department of Defense at the date and time of the scheduled hearing. The committee intends to post Member questions and witnesses['] [responses] within one week of posting opening statements, though the committee may exercise discretion and flexibility to ensure the Department of Defense is able to fulfill mission-critical duties, especially those related to COVID-19 response and national security. When conditions allow for a return to traditional hearings, SASC will transition back to that preferred mode. In addition, the committee is exploring other ways to continue these critical oversight functions.

In other words, the hearing will be conducted entirely through documents sequentially published online.

This type of hearing is a modest, but laudatory, innovation in the age of COVID-19. In-person hearings are better when possible—but Congress could be grappling with the threat of contagion for the next 12-18 months, and packing lawmakers into congressional hearing rooms where they can infect each other is a recipe for disaster. Paper hearings can and should continue if Congress is to continue to fulfill its assigned constitutional duties—including providing oversight of and serving as a check on the executive branch—while observing public health measures.

And paper hearings are just the start. Congress could go further in tweaking its functioning to protect public health. Tentative innovations should be evaluated and modified as needed, even as bolder moves—like live remote hearings—are considered. More innovation will be needed to address trickier situations like markups and remote voting, however, and modest change to House and Senate rules may be necessary.

Thursday’s hearing is not the first paper hearing SASC has held. The committee initiated one such hearing on March 26 to review the posture of the Department of the Army, publishing on its website the prepared testimony of Army Secretary Ryan McCarthy and Army Chief of Staff Gen. James McConville, as well as the opening statements of SASC Chairman James Inhofe and Ranking Member Jack Reed. The Army asked for more time to respond to members' questions and has pledged to respond to the committee members’ questions by Apr. 13.

SASC is not the only committee to have adopted paper hearings. The Senate Commerce, Science and Transportation Committee has also embraced the format, though that committee’s process differs slightly from SASC’s. According to a Commerce Committee press release, members must send their questions to witnesses “by close of business on the day of the paper hearing.” Witnesses, in turn, will have “a 96-business-hour turnaround time” to answer questions. This deadline is both earlier than the one SASC chose and seemingly inflexible; it includes no language indicating that the Commerce Committee may, as SASC said it will, “exercise discretion” to extend the deadline for the submission of witness responses. The Commerce Committee will begin its first paper hearing on April 9, where it will receive testimony from private experts on how to enlist big data to fight COVID-19.

Although there is no readily available record of a committee holding such paper hearings in Congress, there is some precedent in the context of agency procedures governed either by statute or supported by relevant judicial case law. For example, the Federal Communications Commission (FCC) has used paper hearings to consider whether stations that had gone off the air during a license term were entitled to renewal of their license, and in September 2019 the FCC proposed to convert most live adjudicatory hearings into paper hearings.

A second Senate hearing innovation seems to be modeled directly on federal agencies’ procedures. The Senate Environment and Public Works Committee has adopted an “information-gathering process” titled “S. 2754, American Innovation and Manufacturing Act of 2019: Written Testimony and Questions for the Record” that mirrors the public comment period that follows an agency’s notice of proposed rulemaking. From March 25 to April 8, the committee accepted written testimony on S. 2754 from “any interested party.” Starting April 8, interested committee members are permitted to submit questions for the record, which the committee will transmit to the “submitting parties” that answered its initial call for written testimony. The submitting parties must respond to members’ questions by no later than 4 p.m. on April 29.

Paper hearings are a sound response to the needs for all Americans to social distance and for older Americans, in particular, to self-isolate in order to decrease their risk of contracting the virus. After all, 48 Senators and 147 House members are over the age of 65. As one of us wrote with Benjamin Wittes last month, Congress should be thinking creatively about how to decrease the need for physical presence while still performing necessary operations. Members should be present only for necessary votes—and Congress really needs to innovate a failsafe in the event obtaining a physical quorum is not possible due to sickness of or inordinate physical risk to members.

The physical quorum requirement in the Senate Rules for transacting business in committee—for example, voting to send a piece of legislation to the Senate floor for consideration—is more stringent. But the rules give committees considerable flexibility when it comes to testimony: “Each such committee, or subcommittee, is authorized to fix a lesser number than one-third of its entire membership who shall constitute a quorum thereof for the purpose of taking sworn testimony.” And as long as all of the hearing materials are public, the requirement that hearings be open to the public—present in most committees’ rules and the Standing Rules of the Senate—would be met. Moreover, the paper format would pose no problems for committees’ broader requirements that hearings be announced a week before they begin, barring good cause for convening them earlier; that witnesses submit their statements 24-48 hours in advance of their testimony; and that the committees’ majority and minority members cooperate in determining who testifies.

Going the paper route does have its downsides. Inevitably, something is lost in the lack of live back-and-forth in the hearing room. Members cannot interrupt a witness to pin down an otherwise non-responsive answer or press for a “real” answer about what a government official thinks. There is value in being able to read the body of a witness. Is the witness uncomfortable or at ease? Is she being forthright or cagey? These things are harder to judge on paper.

On the other hand, a lot is retained with the new format. Administration and other witnesses are forced to articulate a position that is memorialized for the public. Members have the opportunity to press for questions on key issues—but without posturing for the cameras. Members of the public can read and evaluate all of the materials. And who knows? In the age of congressional hearings as media soundbite fodder, there may even be something to be gained. Without the ability to posture for the camera, perhaps everyone—members witnesses, and meeting attendees—will feel less inclined to try to score political points and be more focused on substance.

Although the paper formats adopted by SASC and the Senate Commerce Committee seem to preclude lawmakers from posing follow-up questions after witnesses have submitted their written responses, there is no reason to think that the committees could not adjust the format to allow for further questioning, if necessary. Indeed, the paper format might even give lawmakers the time they need to parse witness responses with greater care and follow up on points they might have missed in the fast pace of typical hearings.

Other potential downsides to the paper hearing format are worth considering and addressing by the Senate more generally, however. The SASC press release, quoted above, specifies that “When conditions allow for a return to traditional hearings, SASC will transition back to that preferred mode.” But it may be tempting for this format to become the new normal. That would not be desirable; in ordinary times, when physical gatherings are not dangerous, live hearings should continue to be the norm. A formal mechanism—for example, a vote by the Senate or a determination by leadership that circumstances related to health and safety necessitate an authorization to hold paper hearings—should govern the beginning and end to the time period in which paper hearings are authorized.

That the committees have embraced different deadlines for witness responses to members’ questions may offer a useful model for how other congressional panels should proceed. Committees overseeing agencies disproportionately responsible for national security and coordinating the government’s response to COVID-19 might give those agencies’ witnesses more time to respond to members’ questions, as SASC has done. Committees calling in private experts to testify might give those experts less time to respond to members’ queries, as the Senate Commerce Committee has done.

And if a committee determines that a live hearing is absolutely necessary to get crucial answers to protect Americans, it should have the flexibility to do that. For example, if lawmakers discover that an agency is actively and intentionally pursuing measures that will result in the deaths of more Americans from COVID-19, and the agency refuses to respond to a paper hearing, a committee could decide that an in-person hearing is warranted.

House committees may have a somewhat harder time implementing paper hearings, however. Under the “five-minute rule” in the rules of the House of Representatives, “each committee shall apply the five-minute rule during the questioning of witnesses in a hearing until such time as each member of the committee who so desires has had an opportunity to question each witness.” But this problem is not insurmountable. Simply allowing members to ask an appropriately generous number of questions—which, if asked live, would easily meet or exceed five minutes—would work.

Whatever particular course of action committees decide to take, it is clear that the COVID-19 outbreak requires novel action by Congress to ensure it discharges its legislative and oversight functions responsibly. While not a panacea, with appropriate safeguards in place, paper hearings are a sound innovation in that direction. Hopefully, they can serve as a kind of confidence-building measure in support of bolder steps.