Hearings in the U.S. Senate: A Guide for Preparation and Procedure
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Hearings in the U.S. Senate: A Guide for
Preparation and Procedure
-name redactedAnalyst on Congress and the Legislative Process
March 18, 2010
Congressional Research Service
7-....
www.crs.gov
RL30548
CRS Report for Congress
Prepared for Members and Committees of Congress
Hearings in the U.S. Senate: A Guide for Preparation and Procedure
Summary
Congressional hearings are the principal formal method by which committees collect and analyze
information during the legislative policymaking process. Whether confirmation hearings—a
procedure unique to the Senate—legislative, oversight, investigative, or a combination of these,
all hearings share common elements of preparation and conduct.
Senate Rule XXVI sets forth many of the hearing regulations to which committees must conform,
including the quorum requirement, advance submission of witness statements, the opportunity for
minority party Senators to call witnesses of their choosing, and procedures for closing a hearing
to the public. Senate committees, guided mainly by their chairmen, have broad discretion in how
they conduct a hearing, in part because the committees adopt their own rules of procedure. These
rules may supplement Senate rules, but they can not contravene them. Committee customs and
leadership style not embodied in rules also vary considerably among committees and influence
hearing procedures.
Committee members and staff usually plan extensively for hearings. Early planning activities
commonly include collecting background information; preparing a preliminary hearing
memorandum for the chair and members; discussing the scope of the hearing and the expected
outcome; scheduling and providing public notice of a hearing; selecting witnesses; determining
the order and format of their testimony; and preparing questions or talking points for committee
members to use in questioning witnesses. Other considerations include preparing briefing books,
determining whether the hearing will be broadcast and alerting the media, and attending to the
many administrative arrangements, such as reserving a hearing room, scheduling a hearing
reporter, and arranging for there to be a video or audio recording of the proceeding or a written
transcript that will be available to the public soon after the event.
On the day of the hearing, a committee needs a quorum to proceed with testimony. While the vast
majority of hearings are open to the public, a committee can vote to close a hearing for specific
reasons stated in Senate rules. Senators typically make opening statements at the beginning of a
hearing, then witnesses are introduced and may be sworn by the chair. Witnesses present oral
testimony in accordance with an arranged format; this testimony generally is a summary of a
written statement submitted in advance. The question and answer period that follows is an
opportunity for a committee to expand upon a witness’s statement and gather information to
support future actions.
Following a day of hearings, committee staff may prepare a summary of testimony, draft
additional questions for the day’s witnesses, and begin initial preparation of the transcript for
printing. While not required, hearing transcripts commonly are printed, along with additional
materials approved by the committee.
This report will be updated as events warrant.
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Hearings in the U.S. Senate: A Guide for Preparation and Procedure
Contents
Introduction ................................................................................................................................1
Coverage and Organization of This Report ............................................................................1
Hearings in the Committee Process .......................................................................................2
Types of Hearings .................................................................................................................3
Preparation for Hearings .............................................................................................................5
Preliminary Issues.................................................................................................................5
Sources of Outside Assistance ...............................................................................................5
Supplemental Staffing ...........................................................................................................7
Joint Hearings .......................................................................................................................8
Restrictions on Meeting ........................................................................................................8
Scheduling ............................................................................................................................9
Notice...................................................................................................................................9
Choosing and Inviting Witnesses...........................................................................................9
Advance Written Testimony ................................................................................................ 10
Format and Order of Witness Testimony.............................................................................. 10
Subpoenas and Depositions ................................................................................................. 11
Briefing Books.................................................................................................................... 12
Publicity and Media Considerations .................................................................................... 12
Administrative Matters........................................................................................................ 14
Field Hearings..................................................................................................................... 15
Conducting Hearings................................................................................................................. 16
Quorums ............................................................................................................................. 16
Closing a Hearing ............................................................................................................... 16
Witness Rights .................................................................................................................... 17
Opening Statements ............................................................................................................ 17
Introducing and Administering the Oath to Witnesses .......................................................... 18
Oral Testimony of Witnesses ............................................................................................... 18
Time Limitations for Questioning Witnesses ....................................................................... 18
Order of Questioning Witnesses .......................................................................................... 19
Questioning by Committee or Subcommittee Staff .............................................................. 19
Post-hearing Activities .............................................................................................................. 19
Printing Hearings ................................................................................................................ 20
Bibliography ............................................................................................................................. 20
Contacts
Author Contact Information ...................................................................................................... 22
Acknowledgments .................................................................................................................... 22
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Hearings in the U.S. Senate: A Guide for Preparation and Procedure
Introduction
Coverage and Organization of This Report
Under Senate rules, each committee is authorized to hold hearings whether the Senate is in
session, has recessed, or has adjourned (Rule XXVI, paragraph 1). Committees may hold
hearings in Washington, or field hearings in the states or abroad. Whether legislative, oversight,
investigative, confirmation, or a combination of these, all hearings share common elements of
preparation and conduct. This report emphasizes these shared elements.
Senate Rule XXVI, in particular, details hearing procedures. Each committee is required to adopt
and publish written rules of procedure consistent with Senate rules. A committee can expand upon
Rule XXVI. A committee’s rules also generally apply to its subcommittees, and may also contain
procedures that apply specifically to subcommittees.
The rules of many committees contain provisions for hearings, and this report gives examples
from the 109th Congress. These examples are illustrative, intending to show variations in
particular areas. In some cases, several committees have similar provisions, but only one
committee is presented as an example. This report does not attempt to list comprehensively all
provisions of committee rules that apply to hearings.
Further, the summaries of both Senate and committee rules are not intended to capture every
nuance and detail of the rules. Senators and staff are advised to consult the text of the appropriate
Senate or committee rule.
In addition to Senate and committee rules, this report covers common practices in planning and
holding hearings, which may vary significantly among committees. Senators and staff are advised
to contact specific committees for detailed information on their rules and practices.
The report is organized into four main sections. This introduction addresses the role of hearings in
the committee process, types of hearings, and broad organizational issues.
Committee members and staff plan carefully and deliberately for hearings. Section two of this
report, “Preparation for Hearings,” discusses the planning process. Among other topics, this
section covers:
•
deciding whether to hold a hearing;
•
sources that assist committees with hearings;
•
obtaining supplemental staff by contract or detail;
•
holding joint hearings;
•
prohibitions on when committees may meet;
•
scheduling and public notice of hearings;
•
selecting witnesses and determining the order and format of testimony;
•
securing advance written testimony from witnesses;
•
procedures for issuing subpoenas and taking depositions;
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Hearings in the U.S. Senate: A Guide for Preparation and Procedure
•
preparing briefing books for committee members;
•
procedures for broadcasting hearings and techniques for attracting and managing
the media; and
•
administrative arrangements.
Section three, “Conducting Hearings,” discusses how a hearing is held. Among other matters, it
covers:
•
quorum requirements;
•
closing a hearing to the public;
•
the rights of witnesses;
•
opening statements by Members;
•
introducing and swearing in witnesses;
•
oral testimony by witnesses; and
•
the question-and-answer period following oral testimony.
Finally, section four, “Post-hearing Activities,” describes activities committees often undertake
following a hearing. For instance, committee staff may prepare a summary of testimony, prepare
additional questions for witnesses, or print the hearing transcript along with supplemental
materials.
Hearings in the Committee Process
Hearings are the broad information-gathering techniques committees use in policymaking and
oversight. Congress benefits from hearings in a variety of ways. They inform Senators, staff, and
the public about issues and legislative proposals, and orchestrate public support and attract
visibility for an issue. They also serve to monitor government programs and activities, and expose
problems Congress may seek to remedy. Finally, hearings give citizens an opportunity to
participate in the policy process and help build a public record.
Senate committees hold hearings on measures or matters referred to them. Committees can also
hold a hearing absent any specific legislation, as oversight, an investigation, or simply to inform.
For a number of reasons, Senate committees act on a relatively small portion of the measures
introduced and referred to them. For instance, a committee often receives many proposals in the
major policy areas within its jurisdiction, but ultimately chooses, if it decides to act, on only a
limited number of measures in a policy area. When a committee does act, it can send a bill to
subcommittee for initial consideration, although this is not required by Senate rules.
A committee may decide to send a bill to subcommittee for initial scrutiny because of the
technical nature of the issue, the history of prior referrals, and political factors, among other
reasons. When a committee or a subcommittee considers a measure, it generally may take four
actions, as described below. Where a subcommittee initiates some of the four actions, the extent
to which the full committee repeats these steps varies among committees, from issue to issue, and
according to time and workload pressures. The sequence of actions assumes the committee favors
a measure, but that can change and at any time the committee may discontinue action.
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First, a committee may seek agency comment by sending a copy of the measure to the executive
departments or agencies having relevant expertise, soliciting their written evaluation of the
proposal. The executive agency typically sends the measure and draft comments to the Office of
Management and Budget (OMB) to determine if it is consistent with the President’s budget and
legislative program.
Second, a committee may decide to hold one or more hearings. Further committee action without
hearings is the exception, although committee hearings have sometimes been bypassed in order to
move legislation more expeditiously, or because of action on a related bill in previous
Congresses. The importance of the hearings stage is stated by congressional scholar (name reda
cted):
The decision to hold a hearing is often a critical point in the life of a bill. Measures brought
to the floor without first undergoing the scrutiny of hearings will likely receive sharp
criticism.... The importance of the committee stage is based on the assumption that the
experts—the committee members—carefully scrutinize a proposal, and hearings provide a
demonstrable record of that scrutiny.1
Third, a committee may meet to “mark up,” or recommend amendments to the legislation, in part
based on information received at hearings. Markup is the critical stage where a committee decides
how the language of the bill should appear when it is presented to the Senate for consideration.
While committee amendments must be ratified by the full Senate, committees have the important
prerogative of shaping legislation prior to Senate floor consideration.
Fourth, the full committee may report the legislation to the Senate floor. When a committee
reports a measure, it is common, but not required, to issue a written report that describes and
explains a measure’s purposes and provisions and presents the committee’s case for the measure.
Types of Hearings
All hearings share common elements of preparation and conduct. Some of these are governed by
Senate rules, particularly Senate Rule XXVI. At the same time, procedures and practices among
committees may differ for a number of reasons.
First, each committee must adopt its own rules of procedure each Congress (Rule XXVI,
paragraph 2). These must be consistent with Senate rules but may also expand or elaborate on
them. Committee rules often contain provisions regulating hearings.
Second, customs not necessarily reflected in committee rules vary among committees. For
example, committees differ in how they recognize Senators and accord them opportunities for
questioning witnesses.
Third, hearings are held for different purposes. Depending on the purpose, hearings can be
grouped into four broad classes: legislative, oversight, investigative, and confirmation.
(Sometimes one may serve multiple purposes, e.g., both legislative and oversight).
1
(name redacted), Congressional Procedures and the Policy Process, 7th ed. (Washington: CQ Press, 2007), p. 96.
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Hearings in the U.S. Senate: A Guide for Preparation and Procedure
Committees hold legislative hearings on policy issues that may lead to legislation. Sometimes a
committee holds hearings on multiple measures before ultimately choosing one or more vehicles
for further committee and chamber action. Hearings provide a forum where facts and opinions
can be presented from witnesses with varied backgrounds, including Members of Congress and
other government officials, interest groups, and academics, as well as citizens likely to be directly
or indirectly affected by the proposal.
Oversight hearings review or study a law, issue, or an activity, often focusing on the quality of
federal programs and the performance of government officials. Such hearings may also help
ensure that the execution of laws by the executive branch complies with legislative intent, and
that administrative policies reflect the public interest. Oversight hearings often seek to improve
the efficiency, economy, and effectiveness of government operations. A significant part of a
committee’s hearing workload is dedicated to oversight. For example, on a single day, September
30, 2004, a subcommittee of the Senate Committee on Commerce, Science, and Transportation
held an oversight hearing on Internet domain names; the Committee on Governmental Affairs
held a subcommittee oversight hearing on college savings plans; and the Committee on Energy
and Natural Resources held an oversight hearing on issues related to low-level radioactive waste.
Many committees oversee existing programs in the context of hearings on related legislation, or
routinely perform oversight when it is time to reauthorize a program, so oversight hearings may
be combined with legislative hearings.2
Investigative hearings share some of the characteristics of legislative and oversight hearings. The
difference lies in Congress’s stated determination to investigate, usually when there is a suspicion
of wrongdoing on the part of public officials acting in their official capacity, or private citizens
whose activities suggest the need for a legislative remedy. Congress’s authority to investigate is
broad, and it has exercised this authority since the earliest days of the republic. Its most famous
inquiries are benchmarks in American history: Credit Mobilier, Teapot Dome, Army-McCarthy,
Watergate, and Iran-Contra. Investigative hearings often lead to legislation to address the
problems uncovered. Judicial activities in the same area of Congress’s investigation may precede,
run simultaneously with, or follow such inquiries.
Confirmation hearings on presidential nominations are held in fulfillment of the Senate’s
constitutional “advice and consent” responsibilities. Senate standing committees hold
confirmation hearings on presidential nominations to executive and judicial positions within their
jurisdiction.3 These hearings often present an opportunity for oversight into the activities of the
nominee’s department or agency. Although the vast majority of confirmation hearings are routine,
some are controversial.4
Similarly, the Senate, as required by the Constitution, must consent to the ratification of treaties
negotiated by the executive branch with foreign governments. On June 17, 2004, for example, the
Committee on Foreign Relations held a hearing on a series of law enforcement treaties. On March
23, 2004, the Committee on Environment and Public Works held a hearing on the United Nations
2
See also CRS Report RL30240, Congressional Oversight Manual, by (name redacted) et al.
3
See also CRS Report RS20986, Senate Confirmation Process: A Brief Overview, by (name redacted); CRS Report
RL31980, Senate Consideration of Presidential Nominations: Committee and Floor Procedure, by (name redacted);
and CRS Report RL31948, Evolution of the Senate’s Role in the Nomination and Confirmation Process: A Brief
History, by (name redacted).
4
See also “The Confirmation Process” section in CRS Report RL30240, Congressional Oversight Manual, by
(name redacted) et al.
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Hearings in the U.S. Senate: A Guide for Preparation and Procedure
Convention on the Law of the Sea. Although not as numerous as confirmation hearings, these
hearings also allow the Senate to meet its constitutional responsibilities in an important area of
public policy.
Field hearings are congressional hearings held outside Washington. The formal authority for field
hearings is found implicitly in the chamber rules. Senate Rule XXVI, paragraph 1 states that a
committee “is authorized to hold hearings ... at such times and places during the sessions,
recesses, and adjourned periods of the Senate” as it sees fit. In the 109th Congress, on May 2,
2005, the Committee on Indian Affairs held a hearing at the North Dakota state capitol on youth
suicide prevention. Field hearings are often held in a geographic area where the subject matter of
the hearing is particularly relevant. For example, on July 5, 2005, the Committee on Commerce,
Science, and Transportation held a field hearing in Anchorage, Alaska on Alaska Aviation.
While field hearings may involve some matters different from Washington hearings, most of the
procedural requirements are the same. Funding for committee travel, however, must meet
regulations established by the Senate Committee on Rules and Administration.
Preparation for Hearings
Preliminary Issues
A committee considers a variety of issues in deciding whether to hold a hearing. A committee
must define the information it needs, evaluate the policy matters or political message it wishes to
communicate, and then determine whether a hearing is the best approach for achieving its goals.
A hearing agenda is influenced by several factors, including the salience of issues to the nation,
the committee chair’s agenda and goals, the importance of policies to interest groups, and matters
of significance to the President, Senate leaders, and other Senators. Programs under a committee’s
jurisdiction that need to be reauthorized generally receive committee scrutiny, as do instances of
reported waste, fraud, or abuse.
Each committee receives dozens, sometimes hundreds, of proposals for possible examination, and
may study matters not embodied in specific legislation. Given the context of its overall workload,
a committee must decide whether holding a hearing is the best use of its resources. A committee
must also consider whether and how a hearing would fit into its overall agenda. Committees with
broad jurisdictions often struggle to allocate limited resources and balance the political and policy
demands of its membership.
In order to obtain approval for a hearing, committee staff often prepare a preliminary hearing
memorandum for the chair that includes information such as the scope and purpose of the
hearing, the expected outcome, possible witnesses, how many hearing days are planned, and
perhaps, the views of the minority party. Informal discussions with Members and committee staff
may suffice for the hearing to move forward.
Sources of Outside Assistance
Numerous governmental and non-governmental resources are available to committees to assist
with hearings. Given that most hearings focus on government programs, or potential programs,
executive agencies often are major providers of information. Committees may request
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Hearings in the U.S. Senate: A Guide for Preparation and Procedure
information directly from specific offices, or may place requests through an agency’s
congressional liaison office, an office established to respond to congressional requests for
information.
Each of the three congressional support agencies can assist with hearings in a variety of ways.
The Congressional Research Service (CRS) can assist in
•
framing the agenda for hearings;
•
preparing background and policy studies;
•
evaluating legislative proposals and discussing alternative approaches;
•
making its experts available on a nonpartisan basis as witnesses;
•
suggesting witnesses and drafting questions for Members to ask them;
•
preparing studies or documentation for inclusion in the hearing record;
•
analyzing testimony;
•
supplying information on program accomplishments;
•
providing information on positions of interest groups and other key players; and
•
conducting database searches.
The Government Accountability Office (GAO) provides assistance to committees principally by
reviewing executive branch programs through independent audits, investigations, and evaluations.
These reviews measure the effectiveness of government programs. GAO’s reports contribute to
the background study and examination necessary for oversight hearings. For instance, reports on
investigations of waste, fraud, and abuse in federal entities may be used at investigative hearings
probing government programs, or at hearings to craft legislation to correct problems exposed. In
addition to its routine, periodic reviews, GAO may be asked for studies specific to a committee
hearing. GAO experts frequently appear as witnesses.
The Congressional Budget Office (CBO) furnishes Congress with key information relating to the
U.S. economy, the federal budget, and federal programs. It assists committees by preparing cost
estimates of legislation. Its assistance to Congress in carrying out the Congressional Budget Act
provides a framework and useful background and analysis for hearings. Its responsibilities
include
•
estimating the five-year budgetary costs of legislation;
•
tracking congressional budget actions against targets established in budget
resolutions (scorekeeping);
•
estimating costs to state, local, and tribal governments of carrying out mandates
to be imposed by legislation;
•
making periodic forecasts of economic trends and baseline projections of
spending and revenue levels against which proposed changes in taxing and
spending policies can be measured;
•
conducting studies of programmatic or policy issues that affect the federal
budget; and
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•
preparing an annual report on spending and revenue options for reducing the
federal deficit.5
Non-governmental organizations (NGOs) provide a wealth of resources for committees.
Knowledgeable individuals in universities, policy research institutes, law and consulting firms,
and trade and other nonprofit associations often are willing to assist committees with data,
analysis, and testimony. Interest groups with public policy concerns often become involved at the
hearing stage in an attempt to frame the issues early in the legislative process. Studies indicate
that lobbyists believe testifying at congressional hearings is an important and effective technique
for influencing legislation. In addition to policy experts and special interest groups, committees
often seek information and assistance from ordinary citizens who have direct experience with a
proposed policy or agency, or whose lives will bear the impact of Congress’s eventual decision.
Supplemental Staffing
Committees may find it useful on occasion to supplement their staff to assist with hearings.
Committees may hire consultants or employ staff detailed from any government agency or
department, in compliance with regulations promulgated by the Committee on Rules and
Administration.
The services of individual consultants or organizations must be intermittent or temporary, not to
exceed one year or the end of a Congress, whichever occurs first. A consultant must be selected
jointly by the chair and ranking minority member of the committee needing such service. This
committee then sends information on the qualifications of the consultant to the Committee on
Rules and Administration. It is the responsibility of the Rules Committee to make certain that the
consultant has unique qualifications for which the committee could not directly hire an employee,
and the individual is not a current federal employee.
A committee seeking to have an employee detailed from a department or agency of the federal
government must submit a letter to the Committee on Rules and Administration for approval. The
committee also must submit a letter showing the concurrence of the agency or department in the
detail, and information on the title and salary of the prospective detailee. The Rules Committee’s
review of this information includes a cost-benefit assessment. Committees may hire detailees on a
reimbursable or a non-reimbursable basis.
Staff also may be available from the many fellowship, internship, and volunteer programs that
place individuals with committee and Member offices. These programs provide staff ranging in
expertise from high school and college students with little or no experience, to trained
professionals and subject specialists. Finally, the Senate Office of Legislative Counsel assists in
drafting a variety of legislative vehicles and documents, including bills and amendments.
Attorneys in the office often work closely with committees during their consideration of
legislation.
5
See also “Congressional Budget Office (CBO)” section in CRS Report RL30240, Congressional Oversight Manual,
by (name redacted) et al.
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Hearings in the U.S. Senate: A Guide for Preparation and Procedure
Joint Hearings
Each panel has the discretion to hold hearings jointly with another committee or subcommittee.
Panels meeting jointly must agree on common rules of procedure and determine logistical
questions. In some instances, two Senate committees will meet jointly. For example, on July 14,
2005, the Committee on Indian Affairs and the Committee on Health, Education, Labor and
Pensions held a joint hearing on Indian health care improvement. House and Senate panels also
sometimes hold joint hearings. For example, the Senate Judiciary Subcommittee on the
Constitution and the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil
Liberties held a joint hearing on March 11, 2009, on proposed constitutional amendments
regarding the filling of vacancies in the Senate.6
Some observers view joint committee sessions as an efficient use of time and resources. Joint
hearings bring together expertise and differing perspectives. They may reduce the difficulties and
delays that arise from contradictory actions and proposals. Joint committee sessions, however,
tend to be infrequent. Some Members believe that separate perspectives and approaches provide
significant benefits to Congress. Separate hearings increase avenues of access for witnesses, and
opportunities for influence and exposure for committee members and leaders. Further,
coordinating meeting times between two panels may present scheduling difficulties.
Restrictions on Meeting
Senate rules place limitations on when committees may meet. A standing committee and its
subcommittees are authorized to meet and to hold hearings when the Senate is in session as well
as when it has recessed or adjourned (Rule XXVI, paragraph 1). A committee may not meet,
however, on any day after the Senate has been in session for two hours, or after 2:00 pm when the
Senate is in session (Rule XXVI, paragraph 5(a)). This restriction is designed to minimize overlap
of committee and floor sessions and so allow fuller participation in floor debates, reduce
interruptions of committee deliberations with floor votes, and lessen scheduling conflicts for
Senators.
The Committees on Appropriations and the Budget are exempt from this prohibition. In practice,
the rule is frequently waived for other committees by unanimous consent, or joint agreement of
the majority and minority leaders or their designees. Whenever the prohibition is waived, the
majority leader (or his designee) announces on the floor, usually at the beginning of the day, the
time and place of the meeting.
Senate rules also restrict committees to meeting during specified time periods (Rule XXVI,
paragraph 6). Specifically, a committee may meet: (1) in the morning, until 11:00 a.m.; or (2)
from 11:00 a.m. until 2:00 p.m. This rule is intended to minimize problems associated with
simultaneous floor and committee sessions, as well as with overlapping committee sessions. In
practice, committees do not always adhere rigorously to these restrictions.
6
It is also not uncommon for two subcommittees of the same parent committee to hold joint hearings.For example, on
October 27, 2009, the Domestic and Foreign Marketing, Inspection and Plant and Animal Health Subcommittee and the
Production, Income Protection and Price Support Subcommittee of the Senate Agriculture, Nutrition and Forestry
Committee held a joint hearing on falling dairy prices.
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Hearings in the U.S. Senate: A Guide for Preparation and Procedure
Scheduling
The committee chair generally controls the schedule, though any Senator may seek to persuade a
committee to hold hearings. Paramount in scheduling for many committees is choosing a date and
time convenient for committee leaders. The Senate’s automated system (available on the Senate’s
Webster Internet page) allows committees to coordinate their schedules to avoid meeting
overlaps. The consolidated hearing schedule is posted on the Senate’s website at
http://www.senate.gov/legislative/legis_legis_committees.html.
Notice
Under Senate rules, committees must publicly announce the date, place, and subject of each
hearing at least one week in advance (Rule XXVI, paragraph 4(a)). The Committees on
Appropriations and the Budget are exempt from this rule. The rule may be waived if the
committee determines that there is “good cause” to hold a hearing at an earlier date. Notices of
hearings appear in the Daily Digest section of the Congressional Record, in reports by the
Senate’s automated committee scheduling service, and on the Senate’s website.
Committee rules show some variation on the Senate rule. For example, the rules of the
Committee on Environment and Public Works state that hearings held with less than a week’s
public notice require the concurrence of the ranking minority member, and in any case, notice
must be made at least 24 hours in advance of the hearing. The Committee on Agriculture,
Nutrition, and Forestry permits hearings with less than a week’s public notice if the committee or
subcommittee chair determines that the hearing is noncontroversial or that “special
circumstances” require swift action, and a majority of the committee or subcommittee concurs.
The rules of the Committee on Health, Education, Labor and Pensions contain an addendum with
additional hearing guidelines requiring the full committee and its subcommittees to provide each
member of the committee with the time, place, and subject matter of the hearing seven days prior
to the public notice of a hearing as well as a list of witnesses three days in advance.
A standing order of the Senate requires each Senate committee to notify the Office of the Senate
Daily Digest of the Congressional Record immediately when any committee hearing or meeting
is scheduled (Title IV of S.Res. 4, 95th Congress). The information should include the time, place,
and purpose of the session. Committees must provide the daily digest office with any changes in
the information or cancellations of sessions as soon as they occur. Every Monday and Wednesday,
this information is published in the extensions of remarks section of the Congressional Record.
Choosing and Inviting Witnesses
In choosing witnesses, committees pay careful attention to the viewpoints that are heard, who
should testify, and the order and format for presenting testimony.
In some cases a committee strives to assure that all reasonable points of view are represented,
while in other cases witnesses expressing only particular points of view are invited. Senate rules
allow the minority party members of a committee to call witnesses of their choice on at least one
day of a hearing, when the chairman receives a request from a majority of the minority party
members before the completion of the hearing (Rule XXVI, paragraph 4(d)). The Committee on
Appropriations is exempt from this rule. In lieu of this formal option, the minority sometimes
works informally with the majority to invite witnesses representing its views.
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To testify, a witness must be invited by the committee. Before officially inviting a witness,
committee staff identify, and often interview, prospective candidates. When appropriate witnesses
are found, the committee chair commonly sends a formal letter of invitation. This letter gives the
witness some basic information, including the purpose, subject, date, time, and place of the
hearing. In addition to specifying the portion of a measure or issue the witness should address, the
letter might contain a limitation on the length of the witness’s oral testimony.
The committee may send the witness additional information. This information may include a list
of committee members, the committee’s rules, the measure under consideration, and press articles
relating to the issue. A staff contact is indicated. Staff sometimes meet with witnesses before a
hearing to answer questions and to review procedure.
A Senate standing order authorizes reimbursement for per diem expenses of witnesses (S.Res.
259, 100th Congress). The actual expense basis for reimbursement generally cannot exceed the
daily rate set by the Committee on Rules and Administration although the committee may
consider deviations from this policy on a case-by-case basis. A committee also may reimburse a
witness for travel expenses related to testimony. If reimbursement is expected, the letter of
invitation may address this. Usually a witness is reimbursed only in hardship circumstances, and
then only for expenses related to transportation from the witness’s place of residence to the
hearing and return.
Advance Written Testimony
A letter of invitation also may request that the witness send the committee biographical
information and an advance copy of written testimony. Senate rules require each witness to file an
advance copy of written testimony with the committee at least one day before an appearance at a
hearing (Rule XXVI, paragraph 4(b)). The Committee on Appropriations is exempt from this rule.
A committee chair and ranking minority member can determine the circumstances whereby
advance copies of testimony need not be filed.
Various committee rules cover how far in advance of the hearing witnesses’ testimony should be
filed, usually between 24 and 72 hours; the rules also cover any requirements for multiple copies.
For example, the Committee on Foreign Relations requires witnesses to file with the committee
48 hours in advance of an appearance at a hearing, whereas the Committee on Veterans’ Affairs
requires 40 copies of testimony to be filed 48 hours in advance.
Senate committee leaders have authority to decide when it is impractical to require advance
written testimony. Precipitating national or international events may require immediate
congressional attention, and individuals may be needed to testify on very short notice. In such
cases, committees can waive the requirement for written testimony. Most of the time, however,
committees are rigorous about receiving advance copies of testimony. Committees may want to
summarize or outline testimony, draft questions tailored to each witness’s statement, and
photocopy the statement for distribution to the press and others.
Format and Order of Witness Testimony
Committees determine the format and order of presenting witnesses. It is common practice to
request witnesses to limit their oral remarks to a brief summary of their written testimony.
Usually, a witness’s complete remarks are included in the hearing record. Traditionally, after their
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opening remarks, the witness takes questions from Members before a second witness testifies. In
recent years, committees have used different formats. One common approach presents multiple
witnesses with diverging viewpoints as a panel. It is practice in these cases for all the panel
members to make statements, then for committee members to pose questions to the panel. Some
observers believe that this format produces a more stimulating debate and more effectively elicits
pertinent information. Committees have experimented with several other formats for gathering
information, including seminars, roundtable debates, and, more experimentally, video
conferencing and the Internet.
The order in which witnesses testify is also determined by the committee. Protocol dictates that a
Member of Congress generally testifies before other witnesses, and a similar privilege often is
extended to high-ranking executive branch officials and to former Representatives or Senators
and other high-level government officials. Celebrity witnesses, because they often generate media
and public attention, are carefully positioned. Academics, government officials, representatives
from interest groups, and other private citizens are arranged in a way that most favorably presents
information and communicates the policy and political intentions of the committee. For example,
a committee may arrange its witnesses to allow individuals to refute or counter arguments made
by another witness.
Subpoenas and Depositions
Most individuals respond favorably to an invitation to testify, believing it to be a valuable
opportunity to communicate and publicize their views on a question of public policy. If a person
will not come by invitation alone, however, a committee or subcommittee may require an
appearance through the issuance of a subpoena (Rule XXVI, paragraph 1). Committees also may
subpoena correspondence, books, papers, and other documents. Subpoenas are issued
infrequently, and most often in the course of investigative hearings.
Senate Rule XXVI, paragraph 1, broadly authorizes committees to issue subpoenas to require
appearances by witnesses or the production of material. Each committee’s rules further delineate
the procedure. Some committees delegate authority for subpoenas to the chair or the chair’s
designee. Other committees require a majority vote of the committee. Still other committees have
more detailed procedures for authorizing subpoenas. The chair of the Committee on Agriculture,
Nutrition, and Forestry is authorized to issue a subpoena with the approval of the ranking
minority member. The chair, however, may authorize a subpoena without such approval if the
chair does not receive notification from the ranking minority member within 72 hours, excluding
Saturdays and Sundays. Even if the ranking minority member disapproves, the subpoena may yet
be authorized by vote of the committee. The Committee on Small Business requires the consent
of the Ranking Minority Member, or a majority of the committee members, and the rule provides
that “Such consent may be given informally, without a meeting,” but it must be in writing. The
Select Committee on Intelligence requires that each subpoena be accompanied by a copy of the
resolution authorizing the establishment of the committee and a copy of the committee’s rules.
A committee requiring a subpoena can obtain the appropriate form from the Office of Legal
Counsel. Subpoenas usually are delivered by authorized committee staff or by a U.S. Marshal.
Compliance with a subpoena can be enforced only at the direction of the Senate. There are three
methods of enforcing a subpoena. The first is called a inherent contempt hearing of the full
Senate. The second method of enforcement allows a committee to report a resolution citing for
contempt an individual who did not respond to a subpoena. If approved by the Senate, the
resolution would be sent to the Office of the U.S. Attorney for prosecution. Finally, for matters
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involving civil contempt, a committee could report and the Senate adopt a resolution allowing the
Senate Legal Counsel to obtain a court ruling deciding whether an individual must comply with a
subpoena.
Committee staff commonly consult with experts to gather information in preparation for a
hearing. A more formal means of obtaining information, for investigative hearings in particular, is
through the use of depositions. Under this method, committee staff will commonly take testimony
in private, either from individuals who later appear as witnesses or from those who do not testify
publicly. The testimony is sometimes taken under oath, and a transcript may be prepared.
Individuals often are accompanied by counsel, and respond to prepared questions.
As Senate rules do not expressly authorize depositions by staff, on occasion the Senate has
granted specific authority for such action by resolution. The committee then usually adopted
procedures for taking depositions. As one example, the Senate approved a resolution authorizing
committee staff to take depositions in the investigation of the Whitewater Development
Corporation and related matters (S.Res. 229, 103rd Congress).
Most committee rules are silent on the matter of depositions. The Committee on Foreign
Relations provides that, “At the direction of the Committee, staff is authorized to take depositions
from witnesses.” Questions have been raised however, that, since staff depositions are usually
authorized only by Senate resolution, the committee’s rule might be open to challenge. The
Committee on Homeland Security and Governmental Affairs provides comprehensive procedures
for taking depositions because of the committee’s broad oversight and investigative authority.
Briefing Books
Staff often prepare summary and background material for Senators’ use before and during a
hearing. This information is sometimes assembled into briefing books, or folders, to present
issues in a systematic, uniform way. Briefing books can include a variety of items, including a
description of the subject, scope, and purpose of the hearing. For legislative hearings, a copy and
an explanation of each measure under consideration, and a comparison of all measures to be
discussed, are useful. Pertinent statutes and regulations, court decisions, press articles, agency
reports, academic studies, and a chronology of major events also may be included. To assist
Senators with witnesses, briefing books might contain a list of witnesses in their order of
appearance, a copy or summary of written testimony, and biographical information. Briefing
books frequently contain questions or talking points for Senators to use in opening statements and
in examining witnesses.
Before a hearing, committee staff sometimes brief Senators and their staff. Staff can conduct oral
briefings in addition to, or in lieu of, preparing briefing books. These sessions provide an
opportunity to discuss matters of particular interest to individual committee members.
Publicity and Media Considerations
A committee’s goal in holding a hearing often is broader than collecting information for policy
development. It can include publicizing an issue or problem to focus attention and build support
for an issue in broad or narrow areas of the public. Exposure of a problem at an oversight or
investigative hearing can be a particularly effective technique. Public officials often seem
responsive to correcting program deficiencies when an issue has been broadly publicized.
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Senate Rule XXVI, paragraph 5(c), authorizes committees to broadcast hearings that are open to
the public, but leaves to committees and subcommittees development of procedures. The rules of
some committees, for example, Agriculture, Nutrition, and Forestry; Judiciary; and Rules and
Administration, are silent on broadcasting, and committee practice and decisions of the chair
largely determine how hearings are broadcast.
Some committees provide minimal formal guidance. For example, the Committee on
Appropriations provides that if a member of an Appropriations subcommittee objects to
photography or broadcasting of an open hearing, the matter is referred to the full committee for a
decision. The rules of the Committee on Energy and Natural Resources provide that the media
must position their equipment so as not to block staff or Senators or otherwise interfere with the
“orderly process” of the hearing.
Other committees have more fully developed rules. The Committee on Finance requires that a
hearing broadcast must be approved by the committee chair following a request filed with the
staff director by noon of the day before the hearing. The Committee’s rules also cover installation
of broadcasting equipment and additional lighting in the hearing room. Select Committee on
Ethics rules require that personnel providing broadcast coverage be accredited by the Radio and
Television Gallery, and that photographers be accredited by the Press Photographers Gallery.
Committee press aides usually are responsible for planning media coverage for a hearing, and
they typically employ a number of techniques for attracting and managing the media. In some
cases, press aides in Senators’ personal offices take similar actions on behalf of individual and
committee members. Often, an early objective is to seek the assistance of the Senate Daily Press
Gallery, the Periodical Press Gallery, the Radio and Television Gallery, and the Press
Photographers’ Gallery. The mission of the gallery staffs is not only to facilitate coverage of
Senate activities on behalf of the media, but also to assist committee members and staff with their
media responsibilities. Gallery staff can assist committees in a variety of ways, by distributing
press releases and witness statements, resolving differences involving camera crews, and making
pool arrangements for maximum television coverage.
Some committees routinely mail calendars informing the media of upcoming events. The
information typically includes a list of hearings and a description of each, emphasizing why the
hearing is important. For each hearing, these calendars provide the date, time, and location, as
well as a staff contact.
Press releases are a standard format for informing journalists of newsworthy committee activities.
In addition to a committee’s press list, press releases also can be distributed to committee and
personal offices and the Senate press galleries. The Radio and Television Gallery requests 25
copies of news releases, notices of committee meetings and hearings, and notices of press
conferences. The Senate Daily Press Gallery suggests 50 copies of press releases. The Periodical
Press Gallery requests 10-15 copies of press releases. Language from press releases can be used
to draft “Dear Colleague” letters and statements for use in committee and on the Senate floor.
Committee staff often prepare media packets prior to hearings. The packets can include a variety
of material, such as statements by the committee chair and other members, a list of witnesses and
copies of written testimony, and background material such as press clippings and support agency
studies.
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As the day of a hearing approaches, reporters often will seek out staff for information. Many
committees prefer that journalists’ discussions with staff be “on background” and not for
attribution. Speaking for attribution usually is limited to committee members.
Press conferences are a common technique for personally informing journalists of issues in an
upcoming hearing, and for clarifying issues immediately following a hearing. Some Senators
prefer to meet informally with reporters, others prefer a more structured environment. Formal
press conferences may be held in the multi-media studio in room S-325 in the Capitol. Press
secretaries are advised to contact the Radio and Television Gallery staff in advance to ensure that
the desired studio time is available. According to the 2006 edition of the U.S. Senate Handbook,7
only members of the press can reserve studio time, and press secretaries should contact an
accredited member of any congressional media gallery to secure an invitation to the studio.
Ordinarily, only Members of Congress may be interviewed in the studio. Exceptions must be
authorized by the executive committees of the congressional galleries.
When a studio appearance is scheduled, a notice is posted through the Senate electronic bulletin
board and displayed in all of the congressional media galleries. Senators also may schedule
appearances in the Senate Daily Press Gallery, although television cameras are not permitted
there. These appearances do not require an invitation from members of the press.8
In recent years, committees have publicized their hearings on their committee websites (see
http://www.senate.gov/pagelayout/committees/one_item_and_teasers/committee_hearings.htm).
Links from a committee’s home page lead to sites related to committee hearings. Some
committees provide a list of hearings, dates, and witnesses (see, for example, the site of the
Finance Committee at http://finance.senate.gov/sitepages/hearings.htm). Others include
statements by Senators and witness testimony. The website of the Committee on Commerce,
Science, and Transportation provides links to live webcasts of upcoming hearings (see
http://www.senate.gov/pagelayout/committees/d_three_sections_with_teasers/
committees_home.htm).
Administrative Matters
Dozens of administrative arrangements need to be made before a hearing, and these usually are
handled by a committee’s administrative staff. Two important matters are reserving a hearing
room and arranging early in the planning stage for a reporter of debates. If a committee’s own
hearing rooms are unavailable, a committee may request a room from another committee or
Senate office. While rooms may be occupied or administered by other offices or committees, they
are subject to the Rules and Administration Committee’s policies for the use of Senate rooms.
Senate committees are authorized to hire reporters of debates and other stenographic assistance
from private firms. Pursuant to 2 U.S.C. 68c, the Committee on Rules and Administration
determines the rate of pay for these services and provides guidelines for their employment. The
committee’s regulations are available from the committee.
7
U.S. Senate Handbook, Washington: GPO, 2006, Appendix I-N.
See also “Communicating with the Media” section in CRS Report RL30240, Congressional Oversight Manual, by
(name redacted) et al.
8
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Under a new rule, adopted by the Senate in the 110th Congress, all committees and subcommittees
must take care to obtain either a video or audio recording or a transcript of the hearing, which
must be available on the Internet no later than 21 business days after the event occurs (this rule
applies to business meetings as well). This rule does not apply if the hearing is closed or if the
committee or subcommittee obtains a waiver from the Senate Committee on Rules and
Administration based on “technical or logistical reasons.” Such transcripts and recordings are to
remain available until the end of the Congress following the meeting. 9
Many administrative details concern the physical setup of the hearing room. These include
arranging items on the dais such as nameplates, writing materials, water, and ice; supplying the
chair with a gavel, block, and timer; providing the chair and other members with materials not
included in the briefing books, such as copies of committee and Senate rules; reserving seats for
the press, staff, witnesses, or other individuals; and arranging for audio consoles, microphones,
and lighting. If necessary, security during the hearing can be provided by the Capitol Police.
Sufficient copies of materials, such as statements of Senators and witnesses, should be provided
for distribution during the hearing.
Field Hearings
A field hearing presents administrative and planning considerations different from those for
Washington hearings. These include identifying the city, district or state and the specific location,
for example, a federal building, school or private venue, where the hearing will be held. It may be
necessary for staff to travel to the field location a day or more before the hearing to make certain
arrangements are to the committee’s satisfaction, including the specific layout of tables and chairs
for Senators, witnesses and the public, and the availability of a sound system and the technicians
to operate it. Security personnel also need to be arranged.
Funding for committee travel must meet regulations established by the Rules and Administration
Committee and compiled in Appendix IV, section III, of the of the U.S. Senate Handbook. Of
particular importance to a committee holding a field hearing is section IV-D, “Hearing Expenses.”
This section authorizes committees under certain conditions, to pay the expenses of official
reporters for travel to the site of the field hearing.
Where field hearings involve oversight of a federal agency, it may be possible, under a
committee’s oversight authority, to request that the agency provide transportation for committee
members and staff. Usually, such requests require a letter from the committee chairman to the
agency head. Expenses incurred by a Senator or staff aide attending a field hearing—including
transportation, lodging, meals and incidentals such as parking charges—are reimbursable by the
committee holding the hearing. Automobile rentals are also reimbursable, providing the car is
only used to transport Senators and committee or personal staff authorized by the committee for
travel. For other matters relating to expenses and reimbursement for travel to and from a field
hearing, staff should consult Senate regulations or the Rules and Administration Committee.
9
This is the new section to the Senate’s Standing Rule XXVI, 5(e)(2), also found in sec. 513 of P.L. 110-81, formerly
S. 1, The Honest Leadership and Open Government Act of 2007, enacted on September 14, 2007.
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Conducting Hearings
As discussed above, hearings involve considerable preparation. By the day of the hearing,
Senators and staff expect that important requirements of Senate rules, such as publicly
announcing hearings, have been met. Critical decisions, such as choice of and format for
presenting witnesses, have been made. Necessary research has been conducted, and relevant
materials assembled in a briefing book. Briefings may have been conducted for Senators, staff,
witnesses, and the press. Administrative issues, such as arranging for a reporter of debates, have
been addressed. With thorough and careful preparation, most hearings can be expected to proceed
routinely. Senators and staff sometimes confront unanticipated events that require a change in
plans, such as a need to call additional witnesses or to close a session to the public.
Quorums
Each committee can determine the number of members required for taking testimony in hearings
(Rule XXVI, paragraph 7(a)(2)). With few exceptions, Senate committees allow one Senator to
take sworn and unsworn testimony. For instance, the Committee on Appropriations permits one
Senator to take unsworn testimony, but sworn testimony requires three Senators. However, one
Senator is sufficient to take sworn testimony at an Appropriations subcommittee hearing. The
Committee on Armed Services requires three Senators to take sworn testimony, one of whom
must be from the minority party, unless a majority of the committee orders otherwise. The
Committee on Health, Education, Labor and Pensions allows one Senator to conduct a hearing,
with the approval of the chair. In order to take sworn testimony, however, three members of the
committee are required; although, with the concurrence of the chairman and the ranking minority
member, one Senator may hear subpoenaed witnesses or take sworn testimony. The Committee
on Rules and Administration requires two Senators to take sworn testimony and one Senator to
hear unsworn testimony, though once a two-person quorum has been established, a single
member may continue taking testimony.
Committee staff often poll Senators before the start of a hearing to determine which members
plan to attend. Sometimes staff also obtain information on where Senators can be reached, in case
they are needed to meet the quorum requirement.
Closing a Hearing
The vast majority of committee hearings are open to the public, as required under Senate rules. A
hearing, like other committee meetings, may, however, be closed for specific reasons stated in
Senate rules (Rule XXVI, paragraph 5(b)).
A committee may close a hearing if it (1) involves national security information; (2) concerns
committee personnel, management, or procedures; (3) invades the personal privacy of an
individual, damages an individual’s reputation or professional standing, or charges an individual
with a crime or misconduct; (4) reveals identities or damages operations relating to law
enforcement activities; (5) discloses certain kinds of confidential financial or commercial
information; or (6) divulges information that other laws or regulations require to be kept
confidential.
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The Senate rules also contain a specific procedure for closing a hearing. By motion of any
Senator, if seconded, a committee may close a session temporarily to discuss whether there is a
need to close a hearing for any of the reasons stated above. If so, the committee can close the
hearing by majority roll call vote in open session. By this procedure, a committee can close a
hearing or a series of sessions on a particular subject for no more than 14 calendar days.
Witness Rights
No witness may refuse to testify on the grounds that such testimony “may tend to disgrace him or
otherwise render him infamous” (2 U.S.C. 193). Witnesses at Senate hearings receive protections
mainly through their rights under the Constitution, and rules adopted by individual committees.
Constitutional protections include the First, Fourth, and Fifth Amendments. While committees
may seek documents from witnesses, the Fourth Amendment prohibits unreasonable search and
seizure to obtain information. The First Amendment protects witnesses who may seek to refuse
compliance with a committee subpoena by claiming that the committee has infringed on the
witness’s right to free speech, assembly, or petition. Under the Fifth Amendment protection
against self-incrimination, witnesses cannot be compelled to give evidence against themselves
unless granted immunity.
Among committee rules, several provide witnesses with a right to counsel. The Committee on
Homeland Security and Governmental Affairs allows counsel to be present and to advise
witnesses of their legal rights. If a witness is an “officer or employee of the government, or of a
corporation or association,” the chair may determine that representation by counsel from the
government, a corporation, or an association representing other witnesses creates a conflict of
interest and may order that the witness be represented by committee staff or by personal counsel.
Several Senate committees have rules that prohibit the release of confidential testimony unless it
is authorized by a majority of the committee. The Finance Committee gives witnesses the right to
request that cameras be turned off if they do not wish to be televised while testifying.
Opening Statements
When present, a committee’s chair ordinarily presides over its hearings. Senate rules stipulate that
in the absence of the chair, the ranking member of the majority party is authorized to preside
(Rule XXVI, paragraph 3). The rules of several committees provide that if neither the chair,
ranking majority member, nor any other member of the majority is present, then the ranking
minority member present may preside. The Committee on Homeland Security and Governmental
Affairs provides that if the chair or his designee is absent 10 minutes after the scheduled time of
the hearing, then the ranking majority member present can preside. If no member of the majority
is present, then, with prior approval of the chair, the ranking minority member present may open
and conduct the hearing only until a member of the majority arrives.
To begin the hearing, the chair commonly makes an opening statement introducing the subject
and purpose of the session. The chair may describe important events leading to the hearing and
key contemporary issues. He or she also may outline the committee’s approach to the issue; a
procedure for interruptions, such as for roll call votes; and the schedule of future hearings. When
finished, the chair generally recognizes the ranking minority member to make an opening
statement, and may then recognize other Senators.
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Since debate time in the Senate is generally unrestricted, Senators recognized for opening
statements may, under the rules, speak as long as they wish. The chair may, however, request that
in the interest of time, Senators limit the length of their statements.
Introducing and Administering the Oath to Witnesses
Following opening statements, the chair customarily introduces each witness in accordance with
the arranged order and format. In some cases, for example a home state witness, a committee
member other than the chair might introduce the witness.
A procedure for administering an oath for sworn testimony to witnesses is not addressed in Senate
rules, although by statute any Senator is authorized to administer an oath to a committee witness
(2 U.S.C. 191). Most committee rules provide further guidance in this area. Commonly,
committee rules provide that an oath may be administered when the chair or ranking minority
member deems it necessary, as with the Select Committee on Intelligence. The Select Committee
on Ethics requires that all witnesses testifying at adjudicatory hearings be sworn unless the
Senator presiding decides otherwise. In practice, most other committees rarely require testimony
under oath. Swearing witnesses is most common at investigative hearings and hearings dealing
with sensitive subject matter. Sometimes witnesses at confirmation hearings are also sworn in.
Oral Testimony of Witnesses
Senate rules do not limit the time allowed for witnesses to present oral testimony. In practice,
some committees cap the time allowed for witnesses to make their presentations. Since witness
testimony generally is available to the committee in advance, and in the interest of time, it is
usually not necessary or desirable for a witnesses to read their entire prepared statement. The
rules of several committees, including Banking, Housing and Urban Affairs; Finance; and Foreign
Relations, limit oral presentations to ten minutes. The Select Committee on Intelligence rules
state that oral presentations shall “not exceed a reasonable period of time as determined by the
Chairman, or other presiding members.”
Some committees employ a system of lights to guide witnesses in their oral presentations. A green
light tells the witness that time remains to continue a presentation. A yellow light warns the
witness to begin to conclude oral testimony, and a red light informs the witness that the
presentation should end.
Time Limitations for Questioning Witnesses
The question and answer period that follows a witness’s statement presents an opportunity for
Senators to clarify assertions made in testimony, to expand upon witness statements, and
sometimes to question the veracity of statements. Moreover, it offers an opportunity for the
committee to build a public record and to obtain information to support future committee actions.
Committee staff sometimes prepare questions or talking points for committee leaders and other
members. In some cases, witnesses may be informed in advance of the line of questioning the
committee intends to pursue.
Under Senate rules, when recognized, a Senator may, in general, speak as long as he or she wants.
Most committees do not restrict this right of debate for questioning witnesses. Several
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committees, however, have imposed a rule limiting Senators to five minutes to question each
witness until all committee members have had the opportunity. These include Agriculture,
Nutrition and Forestry; Energy and Natural Resources; and Select Indian Affairs. The Committee
on Banking, Housing and Urban Affairs limits questions to each witness to five minutes when
five or more Senators are present, and 10 minutes when fewer than five are present. Where
committee rules are silent on this procedure, the chair or Senator presiding commonly sets ground
rules for questioning either at the start of the hearing or after a witness’s oral presentation.
Whatever the stated procedures, committee leaders generally seek to accommodate Senators
during the question period.
Order of Questioning Witnesses
Each committee has the discretion to determine the order in which members may question
witnesses. A common procedure allows alternating between the parties, in order of seniority. By
contrast, the so-called “early bird rule” permits members to question witnesses based on Senators’
order of arrival at the hearing. Some committees, for example, Agriculture, Nutrition, and
Forestry, authorize the use of either of these methods. In practice, committee chairs can entertain
requests to proceed out of order to accommodate the schedules of individual Senators.
Questioning by Committee or Subcommittee Staff
Both Senate rules as well as those of most committee are silent on the matter of the use of staff to
question witnesses. Unless specified by committee rule, it is commonly the prerogative of the
chair, often in consultation with the ranking minority member, to determine the circumstances
under which staff may question witnesses. The Committee on Small Business specifically permits
such a procedure. The Committee on Energy and Natural Resources and the Committee on Indian
Affairs allow the committee leadership to appoint one staff member to question witnesses. Staff
may only question witnesses after all Senators have completed their questioning, or at other times
agreed upon by the committee leadership. The rules of the Permanent Subcommittee on
Investigations of the Committee on Homeland Security and Governmental Affairs state that
witnesses may be questioned by “authorized” subcommittee staff.
Post-hearing Activities
At the end of the question and answer period, the committee chair will close the hearing. The
chair may summarize what the committee has accomplished by holding the hearing and comment
on the future committee schedule or expected action.
Senate rules provide a procedure whereby a committee may direct its staff to prepare a daily
digest of the written statements submitted by witnesses. A committee can also ask its staff to
prepare daily summaries of the oral testimony presented before the committee on a particular day
(Rule XXVI, paragraph 4(c)). With the approval of the chair and ranking minority member, the
committee can include the latter summaries in its published hearings. Summaries can be
distributed to committee members and the press.
Follow-up questions may be prepared and submitted to witnesses for written replies to expand on
their testimony. Witnesses may be asked to expand on answers given at the hearing or to discuss
new matters raised in the course of the hearing. Often the chair will announce that the hearing
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record will be left open for a period of time so that additional information can be entered into the
formal hearing record. If the hearing is investigative, the committee can prepare and issue its
report. If the hearing is legislative, the committee may proceed to markup and report a measure to
the Senate floor. Finally, committees attend to administrative details following a hearing, such as
restoring the hearing room to its original condition and sending thank-you letters to witnesses.
Points of order against actions that occurred during a committee hearing are normally ruled upon
by the Chairman. In any case, pursuant to Senate rules (Rule XXVI, paragraph 7(a)(3)), no point
of order for a violation of committee hearing rules will be entertained subsequently on the Senate
floor if a measure has been properly reported. This rule states in part, “Action by any committee
in reporting any measure or matter in accordance with the requirements of this subparagraph shall
constitute the ratification by the committee of all action theretofore taken by the committee with
respect to that measure or matter....” Thus, if a Senator believes a hearing was conducted
improperly, he or she must make this belief known in committee, and the point of order must be
timely raised. Once the measure reaches the Senate floor, a point of order because of procedural
infractions during the hearing would not be sustained.
Printing Hearings
Although they are encouraged to do so, Senate committees are not required to print their hearings.
Many hearings are printed. Senate Rule XXVI, paragraph 10(a) provides the authority for
committees to print their hearings. The rule also requires that committee hearings be kept separate
from the personal office of the committee chairman, that hearings transcripts and related material
become the property of the Senate, and all committee members and all Senators are entitled to
access to the hearing records.
Senate Rule XVII, paragraph 5 requires that measures reported to the Senate cannot be
considered unless a report accompanying that measure has been available to Members for at least
two calendar days. The rule further requires that if hearings have been held on the reported
measure, the committee reporting the measure must make “every reasonable effort” to have the
hearings printed and available to Senators.
Some committees provide for review by witnesses of their testimony for the purpose of
determining errors in transcription, grammatical corrections or obvious errors of fact. A request to
actually change the transcript must be made to the committee chair or staff member designated by
the chair. Several committees allow witnesses themselves to make minor grammatical changes.
The rules of the Select Committee on Ethics require that, except where a hearing has been closed
to the public, transcripts be published “as soon as practicable.” The chair and vice chair, acting
jointly, are authorized to order a transcript printed without corrections by a Senator or other
witness if they determine that the time allotted for review of the transcript has expired and the
transcript has not been returned to the committee.
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Congressional Research Service
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Hearings in the U.S. Senate: A Guide for Preparation and Procedure
Author Contact Information
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Analyst on Congress and the Legislative Process
/redacted/@crs.loc.gov, 7-....
Acknowledgments
This report was originally written by former CRS Specialist Richard C. Sachs.
Congressional Research Service
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