Congressional leaders are actively exploring ways to continue the work of Congress as the COVID-19 crisis continues to unfold.  Currently, Congress is not able to have live, in-person hearings, which are the primary tool for conducting oversight of both the private sector and the executive branch.  With existing oversight investigations still underway—and the recent establishment of both a House Select Committee on the Coronavirus Crisis and a COVID-focused Congressional Oversight Commission—leaders in both chambers are testing new procedures to obtain witness testimony outside of traditional in-person hearings.  Already, however, these efforts have begun to run up against existing rules governing hearing procedures.

In recent days, at least two Senate committees have held so-called “paper hearings” through which the committees obtained witness testimony entirely in writing.  Paper hearings began in late March in the Senate Armed Services Committee and the Senate Committee on Commerce, Science, and Transportation.  The Committees are undertaking slightly different methods for obtaining witness testimony.  Under the procedures outlined by the Armed Services Committee, Members submit opening statements and witnesses submit written testimony prior to the hearing date.  These statements and testimony are made available on the Committee’s website on the date of the hearing, with the Committee then publishing Member questions and witness responses within a week thereafter.  The Commerce Committee’s paper hearing process is a little different.  After posting opening statements and written testimony online, Commerce Committee Members must submit questions to witnesses by the close of business, with witnesses then given 96-business-hours to respond.  All questions and responses are later published on the Committee’s website.

Even though these Committees have already begun utilizing these procedures for paper hearings, the Senate Rules Committee has now advised that such procedures are not official hearings under the Standing Rules of the Senate.  Senate Rule XXVI describes a hearing as a public event that occurs at a specific time, date, and location with at least one Senator present to accept testimony from a witness.  Moreover, many Senate committees have in-person quorum requirements to take testimony, with any official action by a committee, including reporting out legislation, necessitating in-person voting.  Maybe not coincidentally, just last night, the Senate Armed Services Committee postponed a second “paper hearing” that was scheduled for today.

On the other side of the Capitol, House leaders face a similar challenge as they explore the limits of remote congressional action.  Late last month, several former Members of Congress and a former House Parliamentarian conducted a mock remote hearing via video conference to test the technical feasibility of conducting remote hearings.  As this trial run suggests, technologically speaking, existing commercial off-the-shelf technology is available to support virtual hearings.  Like in the Senate, however, the permissibility of such hearings under the House rules remains an open question.  House Rule XI requires each meeting of a committee or subcommittee to be open to the public, except when the majority of Members elect to move to a closed executive session, and imposes in-person quorum requirements.  Both of these rules complicate efforts to conduct committee business remotely.

Whether the House and other Senate committees will ultimately join the Senate Armed Services and Commerce Committees in embracing paper hearings, even if they are not official hearings, or possibly pursue more technologically advanced solutions, will have significant implications for oversight in both chambers.  Covington’s congressional investigations team continues to monitor these developments closely and advises clients on the impacts of any procedural changes on ongoing and future congressional oversight inquiries.