Virtual Congressional Hearings: Could They Work? Six Recommendations

As much of the country’s workforce moves to telework to respond to the COVID-19 pandemic, many have asked whether Congress should employ a remote or virtual approach to legislative business. The infection of multiple members of Congress with the virus, along with members who are in self-quarantine, has added pressure to consider such measures.

Could technology really replace various and complicated legislative processes, even just in emergencies?

This week, I joined a broad group of stakeholders organized by Marci Harris, CEO and co-founder of PopVox (an online platform that connects voters with lawmakers), for a mock virtual committee hearing and markup to test the question. The group included former members of Congress, current and former congressional staff, and representatives from think tanks, tech companies, and academics. We used Zoom.

I participated as a mock member of Congress and others performed roles such as members’ staff, witnesses, and the committee clerk. We did our best to replicate a standard committee hearing: witnesses testified and were asked questions, a bill was considered, and amendments were offered and then voted upon.

What we learned is that there will be a steep learning curve if Congress moves to hold virtual hearings or markups and much work remains to be done before it should be tried. Here’s what will be key:

1. Ground rules must be developed to protect members’ rights. A virtual committee environment could create severe disadvantages for members, especially those in the minority. Our exercise raised questions about control of which video feeds can be seen and who can mute and unmute participants.Could a committee chairman mute a minority member who is attempting to raise a point of order? How would a member seeking recognition ensure that they are heard? Can the committee chairman or his staff control what video feeds can be seen? What other havoc might a troublemaking participant be able to think up? The House would also need to determine if there would be one set of rules for all committees or if committees might adopt their own such rules.

   The temptation to technologically stifle members’ participation is not unimaginable, and without protections in place, committees cannot begin down this road.

2. Contingency plans need to be created. Things will go wrong during any hearing removed from the relatively controlled environment of Capitol Hill. The chairman’s location might lose power or Internet connection. Or a key staff person, such as the committee clerk, could become disconnected, which occurred in our exercise. A member’s microphone or speakers may fail, as happened to me at times. If the committee is considering a bill, do disconnected members lose their ability to vote and represent their constituents?
3. New methods of taking votes may need to be adopted. As in any committee markup, matters come up for a vote. In our exercise, as in most committees, many were at first handled with a voice vote. Attempting to test the system, I personally voted “yea” and “nay” on several voice votes because it was easy to get away with. I’d turned my video off. For some of these voice votes, roll call votes were subsequently requested. With my video off, there was no way for the committee to know it was me casting a vote. While fraud is unlikely, there is room for underhanded or mischievous tactics.
4. Members need to see and hear everything. The mock virtual hearing was a far cry from the environment of a hearing room. Our exercise opted to have video presented from only the person who was speaking at any one time to test a theory that we wouldn’t want members displaying reactions when others are speaking.This would deprive members of important context they usually observe in person, such as the ability to see how their colleagues react to witness statements, questions, amendments, etc. in nonverbal ways. Even if every participant’s screen were shared at one time, in a large committee like the House Committee on Transportation and Infrastructure, 70 screens would be nearly impossible to monitor.
5. Multiple secure communications channels are necessary. During a regular congressional hearing, there is more communication going on than whoever is recognized to speak at any one moment. Staff are writing notes to members. Committee chairmen are whispering to their staff. The committee parliamentarian is trying to flag a member’s attention. Staff are emailing or texting with the team back in the office. Members are having side conversations about what they’re hearing.Virtual hearings in Congress would need to replicate these interactions in clear and secure ways. Members need to be able to have private exchanges with their staff. Members need to be able to communicate with one another. Members’ staff need to know how to contact committee staff if they have a question or if their boss needs to leave. Only practice and experience will determine what is needed.
6. Committees need practice. As anyone who has recently started teleworking can tell you, it takes time to get used to. One needs to learn to apply new technologies, develop an on-camera presence, and test their computer hardware and software as well as Internet connection. The ability to toggle between a multitude of tabs, windows, and programs is also an adjustment.These would add a new layer of considerations on top of processes members are already used to. Committees shouldn’t go in cold. They should practice because it won’t be like any hearing they’ve been to before. Staff will also need training and practice, especially for those who will now become something akin to a live television director. Practice makes perfect and experience will be the best teacher.

These are just some of the challenges we found when it comes to doing congressional business in a virtual environment. Some may be overcome, but additional ones will no doubt arise. This exercise was helpful in surfacing roadblocks, and Congress will need to do its own “dress rehearsals.”

But one thing is clear: Congress is not ready today to hold virtual hearings.