‘Paper hearings’ replace committee staple in the Senate

Coronavirus threat and extended recess prompt alternative hearing structure for Senate panels

The Ohio Clock Corridor is empty as Congress is on recess due to the ongoing coronavirus pandemic. (Caroline Brehman/CQ Roll Call)
The Ohio Clock Corridor is empty as Congress is on recess due to the ongoing coronavirus pandemic. (Caroline Brehman/CQ Roll Call)
Posted April 9, 2020 at 6:00am, Updated at 1:22am

The tradition-steeped Senate is treading new ground by scheduling “paper hearings” to quickly resume committee business while also adhering to social distancing guidelines during the coronavirus pandemic.

Unable to meet safely on Capitol Hill and call witnesses in person, the Senate Armed Services and Commerce committees are replacing the traditional hearing model with a new iteration based on opening statements, testimony, questions and answers that will all be submitted in writing for the record.

The paper hearing model may be a steppingstone to more high-tech virtual hearings with videoconferencing technology, a senior Commerce Committee aide told CQ Roll Call, but technology hurdles, cybersecurity concerns and troubleshooting make the timeline for that possibility a bit further down the road.

“As it stands right now, paper hearings are the fastest way to kind of continue business while we figure out how to do things virtually,” the Commerce aide said in an interview.

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The Commerce Committee paper hearing on consumer data and coronavirus will kick off Thursday morning when the panel will post opening statements from Chairman Roger Wicker and ranking member Maria Cantwell along with opening testimony from the seven scheduled witnesses. By the close of business on Thursday, questions from lawmakers on the panel will be sent to the witnesses, who will have 96 business hours to respond.

The questions and answers from the witnesses will post on the panel’s website, and an official transcript will be produced and posted. The full paper hearing will eventually be submitted into the official record, which requires unanimous approval.

The paper hearings in the Commerce Committee are being built on consensus and a higher level of cooperation than usual, according to the committee aide. Bipartisan buy-in on hearing topics and input from both sides of the aisle on witnesses means that it’s less likely that a Democrat would object to entering the substance of the paper hearings into the record.

Written testimony from witnesses and questions from lawmakers won’t produce the dramatic exchanges that sometimes arise when senators press for answers or witnesses are caught off guard or unprepared by a question. But a Republican aide said witnesses have been strongly encouraged to answer questions as if they were sitting live before the panel and to not scrub testimony.

An internal memo pertaining to paper hearings that was obtained by CQ Roll Call states that paper hearings are not official hearings according to the Standing Rules of the Senate, and that entering any of their documentation into the official record would require a unanimous consent agreement taken when senators are physically present.

Paper precedent

While the paper hearing model hasn’t been used in a long time, it is not unprecedented. A September 1976 Washington Post article, provided to CQ Roll Call by the Senate Historian’s Office, details a Senate Labor and Health Appropriations Subcommittee hearing that appeared in a printed record but never actually took place physically.

A 700-page hearing record from September 1976, with testimony from National Institutes of Health officials, consisted of written and submitted testimony from witnesses, much like the paper hearings in the current Senate.

One key difference is that the 1976 paper hearing record includes quips and transitions from lawmakers that made the record look like lawmakers and witnesses gathered for a meeting, when no such meeting ever occurred. The testimony from witnesses was real, but the document was compiled and edited to read like the transcript of a live proceeding. Another is that NIH officials did not know their testimony would be used to convey a hearing record.

But witnesses participating in the modern-day Commerce and Armed Services paper hearings have a clear understanding that their written testimony will be posted publicly and constitute an eventual transcript and hearing record.

More paper hearings ahead

The Senate is out of session for an extended period, and the annual spring recess that was set for the weeks of April 6 and April 13 now has committee action on the calendar.

The Armed Services Committee is committed to keeping their timeline on track for the annual defense authorization bill, and paper hearings are allowing lawmakers to probe key military issues while the Senate is away from Washington.

Committee leaders said in a statement that they are “committed to continuing congressional oversight and data collection necessary to drafting the national defense authorization act,” an annual defense budget policy measure that has advanced through Congress each year for more than half a century.

March and April are usually packed with dozens of defense hearings with service chiefs, Pentagon leaders and outside advocates for the defense industry. But paper hearings are the plan going forward until health officials and congressional leaders determine that large gatherings are safe once again.

The Armed Services Committee on Thursday announced that future paper hearings would be postponed “until the Committee has more clarity on the COVID-19 situation,” and in recognition of the “additional burden on the Department of Defense at this critical time.”

In a statement, the committee said the decision to postpone was bipartisan and driven by the Defense Department’s struggle to respond to questions in the allotted time for the Department of the Army posture hearing on March 26.

“Chairman Inhofe remains committed to the committee’s goal of completing work on NDAA by the end of May, though he remains flexible because of the uncertainty associated with the coronavirus in the weeks ahead,” the committee said in a statement, referring to Senate Armed Services Chairman James M. Inhofe, R-Okla. “At this point, no decisions have been made, but as this crisis evolves, the committee will announce changes to the anticipated markup schedule.”

The Commerce panel plans to hold more paper hearings in the coming weeks, and topics and witnesses are under discussion between the majority and minority.

Committee staff told CQ Roll Call that a Trump administration policy halting officials engaged in the coronavirus response from testifying before Congress is still in place, including for paper hearings.

[White House halts participation in Hill’s coronavirus hearings]

“While the Trump Administration continues its whole-of-government approach to stopping the spread of COVID-19, it is counter-productive to have the very individuals involved in response efforts appearing at Congressional hearings,” White House spokesman Judd Deere said in a statement in March. “We are committed to working with Congress to offer testimony at the appropriate time.”

The memo announcing the policy originally said that the temporary pause in congressional hearing participation would only last until the end of March.