Contents

• Introduction
• Clause 1 of House Rule XI (Select Provisions)
• The Rules of the House Are the Rules of Its Committees, Clause 1(a)(1)(A)
• Each Subcommittee Is a Part of Its Committee, Clause 1(a)(1)(B)
• Privileged Motions to Recess and to Dispense with the First Reading of a Bill or Resolution, Clause 1(a)(2)(A) and (B)
• Clause 2 of House Rule XI (Select Provisions)
• Adoption of Written Committee Rules, Clause 2(a)
• Regular Meeting Days, Clause 2(b)
• Additional and Special Meetings, Clause 2(c)
• Additional Meetings Called by the Chair, Clause 2(c)(1)
• Special Meetings by Committee Vote, Clause 2(c)(2)
• Temporary Absence of the Chair, Clause 2(d)
• Prohibition Against Proxy Voting, Clause 2(f)
• Open Meetings and Hearings, Clause 2(g)
• Open Business Meetings (Markups), Clause 2(g)(1)
• Open Hearings, Clause 2(g)(2)(A), (B), and (D)
• Prohibition Against Excluding a Member, Delegate, or Resident Commissioner, Clause 2(g)(2)(C)
• Notice Required for Hearings, Clause 2(g)(3)
• Notice Required for Business Meetings, Clause 2(g)(3)
• Availability of Legislative Text, Clause 2(g)(4)
• Written Statements of Proposed Testimony, Clause 2(g)(5), (6), and (7)
• Nongovernmental Witness Disclosures (Truth-in-Testimony Rule), Clause 2(g)(5), (6), and (7)
• Quorum Requirements, Clause 2(h)
• Reporting Quorum, Clause 2(h)(1)
• Hearing Quorum, Clause 2(h)(2)
• Business Meeting (Markup) Quorum, Clause 2(h)(3)
• Postponing and Resuming Committee Proceedings, Clause 2(h)(4)
• Limitation on Committee Sittings, Clause 2(i)
• Calling and Questioning Witnesses, Clause 2(j)
• Selection of Witnesses (Minority Witness Rule), Clause 2(j)(1)
• Five-Minute Rule for Questioning, Clause 2(j)(2)(A)
• Extended Questioning by Committee Members and Staff, Clause 2(j)(2)(B); Clause 2(j)(2)(C)
• Hearing Procedures, Clause 2(k)
• Opening Statement, Clause 2(k)(1)
• Availability of Written Rules, Clause 2(k)(2)
• Witness Counsel, Clause 2(k)(3)
• Order and Decorum, Clause 2(k)(4)
• Assertion of Defaming, Degrading, or Incriminating Evidence or Testimony, Clause 2(k)(5)-(6)
• Release of Evidence Taken in Executive Session, Clause 2(k)(7)
• Sworn Written Statements for the Record, Clause 2(k)(8)
• Transcript Copies of Witness Testimony, Clause 2(k)(9)
• Supplemental, Minority, Additional, or Dissenting Views, Clause 2(l)
• Power to Sit and Act, Clause 2(m)
• Voting by Electronic Device, Clause 2(n)

Summary

House committees follow procedures that are governed by the standing Rules of the House of Representatives, as well as committee rules that the committees adopt at the start of a Congress and may amend at any time during a Congress. Markup and hearing procedures, in particular, are subject to certain provisions in clause 2 of House Rule XI, "Procedures of Committees and Unfinished Business."

In their rules, committees may establish additional requirements to the clause 2 provisions provided that such committee rules are not inconsistent with House rules. Certain provisions of Rule XI lend themselves to greater variety in application. Accordingly, they are more likely to be addressed with further stipulations in committee rules. For example, committees have adopted various rules that address the availability of legislative text (some committees require the pre-filing of amendments); recognition to question witnesses (some committee chairs recognize members by seniority; others follow the "early bird" rule, recognizing members by their arrival time to the hearing); and requirements that witnesses submit written statements of intended testimony a specified time in advance of a hearing. Committee rules may also require the chair to conduct an action in consultation with the ranking minority member, in concurrence with the ranking minority member, or in the presence of the ranking minority member.

Introduction

This report examines select provisions in clauses 1 and 2 of House Rule XI related to markup and hearing procedures. It also identifies instances in which standing committees and the Permanent Select Committee on Intelligence (excluding the Committee on Ethics)¹ have adopted rules that provide greater specificity to the clause 2 provisions.²

House committees follow procedures that are governed by the standing Rules of the House of Representatives, as well as committee rules that the committees adopt at the start of a Congress and may amend at any time during a Congress.³ Markup and hearing procedures, in particular, are subject to certain provisions in clause 2 of Rule XI, "Procedures of Committees and Unfinished Business."⁴

Committees, in their rules, may provide stricter requirements to the Rule XI provisions, but they may not adopt rules that are "inconsistent" with those provisions.⁵ Committee rules may also provide additional guidance for conducting actions authorized by Rule XI.⁶

For instance, pursuant to Rule XI, committee chairs provide public notice of business meetings, which shall not commence prior to the third day after such notice.⁷ Committees may require a lengthier period of notice (e.g., 48 or 72 hours), but it would be inconsistent with House rules for a committee rule to state that the notice period for business meetings is 24 hours.

Ordinarily, if a committee does not follow its committee rules prior to ordering a measure reported, a point of order does not lie against the consideration of the measure on the House floor because the committee is responsible for interpreting its rules, not the House.⁸ However, violations of a House rule may provide the basis for a point of order in the House, which could result in a bill's recommittal.⁹ For example, a member of the committee that reported the measure may make a point of order in the House on the ground that a hearing on the measure was not properly conducted if a point of order was timely made in committee and was improperly disposed of in the committee.¹⁰

All committees follow certain Rule XI provisions without establishing further specificity, such as clause 2(f), which prohibits voting by proxy in committee. Other Rule XI provisions lend themselves to greater variety in application. Accordingly, they are more likely to be addressed with additional requirements or guidance in committee rules. These provisions include the availability of legislative text (some committees require the pre-filing of amendments); recognition to question witnesses (some committee chairs recognize members by seniority; others follow the "early bird" rule, recognizing members by their arrival time to the hearing); and requirements that witnesses submit written statements of intended testimony a specified time in advance of a hearing.

Committees grant the chair (oftentimes in concurrence with or in consultation with the ranking minority member) discretion in carrying out certain committee rules. Their rules may explicitly state this flexibility with phrases such as to the extent practicable, when practicable, or if feasible. These caveats are not noted in this report.

In addition to their rules, many committees adhere to long-standing but unwritten practices. For that reason, Members and staff are advised to follow any guidelines issued by the committee and to consult with committee leadership or staff in their preparation for committee meetings.

Some committees have codified into their rules policies or procedures that other committees follow by informal practice. In this report, the term explicitly states refers to a practice that is provided for in a committee's rules even if the practice is commonly followed by other committees without being addressed in their rules.

Clause 1 of House Rule XI (Select Provisions)

The Rules of the House Are the Rules of Its Committees, Clause 1(a)(1)(A)

Clause 1(a)(1)(A) of House Rule XI states, "The Rules of the House are the rules of its committees and subcommittees so far as applicable." Thus, a committee, pursuant to clause 2(a) of Rule XI, may not adopt committee rules that are "inconsistent" with House rules, nor may it adopt any legal provisions that have the same authority as House rules.

In addition to House Rule XI, House committee procedures are most affected by

• House Rule X, which establishes the standing committees, defines committee jurisdictions and oversight responsibilities, and provides the process for assigning House Members to committees;
• House Rule XII, governing the referral of measures¹¹;
• House Rule XIII, detailing the required contents of committee reports¹²; and
• House Rule XVI, which defines the precedence of motions and establishes limitations on amending.¹³

Several House committees restate clause 1(a)(1)(A) of Rule XI in their committee rules. However, this rule applies to all committees regardless of whether or not it is restated in their written rules. Should the House adopt a new rule, committees would be subject to that rule, if applicable, without any intervening committee action.¹⁴

Each Subcommittee Is a Part of Its Committee, Clause 1(a)(1)(B)

Each subcommittee is a part of its parent committee and operates under the authority, direction, and rules of that committee "so far as applicable."

Several committees, in their rules, explicitly state that the committee's subcommittees are to follow the same committee requirements as the full committee unless otherwise stated in the committee's rules. Others are silent on this matter. Some committee rules note that certain Rule XI requirements apply to task forces and other panels.¹⁵

Privileged Motions to Recess and to Dispense with the First Reading of a Bill or Resolution, Clause 1(a)(2)(A) and (B)

In a committee or subcommittee, a motion to recess from day to day (with committee proceedings resuming at a specified time) or to recess subject to the call of the chair (proceedings are to resume within 24 hours at a time chosen by the chair) is privileged. In addition, a motion to dispense with the first reading (in full) of a bill or resolution is privileged if printed copies are available. Such privileged motions are to be decided without any debate.¹⁶

Most committees restate these provisions or are silent on them. The Natural Resources Committee specifies that the privileged status of a motion to dispense with the full reading of a bill or resolution is dependent on the printed copies being "properly circulated by the Director of Legislative Operations or their designee."¹⁷

Clause 2 of House Rule XI (Select Provisions)

Adoption of Written Committee Rules, Clause 2(a)

"Each standing committee shall establish written rules governing its procedure."

These rules are to

• be adopted during a meeting open to the public (unless the committee, with a quorum present, determines by record vote to close part of the meeting to the public);
• not be "inconsistent" with House rules or legal provisions that have the same authority as House rules;
• incorporate all subsequent provisions of clause 2 of House Rule XI, as applicable; and
• include provisions for implementing clause 4 of Rule XI, providing a means for audio and video coverage of committee proceedings, as regulated by paragraph (f) of that clause.

Each committee is required to make its rules available in electronic form and submit them for publication in the Congressional Record within 60 days after the committee chair is elected during the first session of a Congress.

Some committees establish additional requirements in their rules regarding the adoption of these rules, such as providing that

• committee rules may be modified, amended, or repealed only during a meeting called specifically for this purpose¹⁸;
• a proposed change in committee rules is not to be considered unless the text of such change has been provided to all members a certain number of hours in advance (e.g., two legislative days¹⁹ or 48 or 72 hours)²⁰; and
• any amendments to the rules are to be published in the Congressional Record within 30 calendar days after approval and be made available to the public in electronic form.²¹

Regular Meeting Days, Clause 2(b)

Each committee shall set a regular meeting day, which is to occur no less frequently than once a month, to consider any bills or resolutions pending before the committee and conduct other committee business, provided that required notice for the meeting has been given.

Most committees set their regular meeting days on Tuesdays or Wednesdays and, less frequently, Thursdays. Several committees have adopted variations of the following rule: "The committee shall meet on the [first, second, third, or fourth Tuesday, Wednesday, or Thursday] of each month at ____ a.m. if the House is in session unless the chair determines [in consultation with the ranking minority leader] that there is no need for the regular meeting."²² The Budget and Natural Resources Committees state that a meeting will be canceled or rescheduled if there is a conflict with either party's caucus or conference meeting.²³

Additional and Special Meetings, Clause 2(c)

Additional Meetings Called by the Chair, Clause 2(c)(1)

The chair of each standing committee may call and convene additional meetings to consider a bill or resolution or to conduct other committee business, "subject to such rules as the committee may adopt."

Some committee rules:

• require the chair to call or convene an additional meeting with the concurrence of, or after consultation with, the ranking minority member²⁴;
• require the chair to provide the same materials (agenda and otherwise) that would have been made available prior to a regular meeting²⁵; or
• provide a specified period of notice to members for an additional meeting.²⁶

Special Meetings by Committee Vote, Clause 2(c)(2)

Three or more committee members may file a written request in the committee office that the chair call a special meeting to consider a specified measure or matter. Upon the filing of the request, the clerk of the committee is required to notify the chair. Within three calendar days after the filing, the chair schedules the meeting, which is to take place within seven calendar days after the filing. If the chair does not schedule the meeting, a majority of the committee members may file a written notice that the meeting will be held at a certain date and hour to consider the specified measure or matter, and at such meeting, only the specified measure or matter may be considered.

As soon as the written notice is filed, the committee clerk is to inform all committee members of the meeting, including the date, time, and subject matter. This notice is to be made publicly available in electronic format.

Committee rules do not add additional specificity to this rules provision beyond stating that the clerk's notification role may be fulfilled by the majority staff director.²⁷

Temporary Absence of the Chair, Clause 2(d)

The chair of each standing committee shall appoint a member from the majority party to serve as vice chair of the full committee and each subcommittee. If the chair is absent from any meeting, the vice chair presides. If neither the chair nor the vice chair is present, the highest-ranking majority member who is present presides.

Some committee rules specify that the vice chair serves at the chair's discretion or that the chair reserves the right to assign another member to serve as chair of a hearing or business meeting during the chair's temporary absence.²⁸

Prohibition Against Proxy Voting, Clause 2(f)

No vote on any measure or matter in a committee or subcommittee may be cast by proxy.²⁹

Open Meetings and Hearings, Clause 2(g)

Open Business Meetings (Markups), Clause 2(g)(1)

Committee and subcommittee business meetings are to be open to the public, including to radio and television broadcasting and still photography.³⁰ However, a committee may conduct a record vote in open session, a majority of members being present, to close all or the remainder of a meeting if the members, through this vote, determine that "disclosure of matters to be considered would endanger national security, would compromise sensitive law enforcement information, would tend to defame, degrade, or incriminate any person, or otherwise would violate a law or rule of the House."

Individuals other than committee members and non-committee House Members, delegates, the resident commissioner, congressional staff, or departmental representatives who are authorized by the committee to be in attendance may not be present at a business meeting held in executive session.

Some committees provide guidelines concerning the broadcasting of committee meetings, which is governed by clause 4 of House Rule XI and is not addressed by this report.³¹

Open Hearings, Clause 2(g)(2)(A), (B), and (D)

Committee and subcommittee business hearings must be open to the public, including to radio and television broadcasting and still photography.³² However, a committee may conduct a record vote in open session, a majority of members being present, to close all or the remainder of a hearing to the public if "disclosure of testimony, evidence, or other matters to be considered would endanger national security, would compromise sensitive law enforcement information, or would violate a law or rule of the House."³³ Using the same procedure, the committee or subcommittee may vote to close one additional day of hearings. The Committee on Appropriations,³⁴ the Committee on Armed Services, the Committee on Homeland Security, the Permanent Select Committee on Intelligence,³⁵ and their subcommittees may vote to close up to five additional consecutive days of hearings.

Notwithstanding this provision, the committee, in the presence of the quorum that the committee has established for hearings, may vote to close the hearing for the sole purpose of discussing whether testimony or evidence would "would endanger national security, would compromise sensitive law enforcement information, or would violate clause 2(k)(5)."³⁶ The committee may also vote, in the presence of a hearing quorum, to close the hearing pursuant to clause 2(k)(5).

The Armed Services Committee enables each committee member, with the chair's approval, to designate personal staff holding top secret security clearances to attend hearings of the full committee or the member's subcommittees, panels, or task forces that have been closed for national security purposes.³⁷

Prohibition Against Excluding a Member, Delegate, or Resident Commissioner, Clause 2(g)(2)(C)

A Member, delegate, or resident commissioner may not be barred from attending a committee or subcommittee hearing (excluding the Committee on Ethics or its subcommittees) unless the House, by majority vote, authorizes a specific committee or subcommittee to close its hearings to these individuals for a defined series of hearings on a specific legislative measure or subject of investigation, following the same procedures used to close hearings to the public.

The Budget Committee applies this rule to task forces, as well as the full committee and its subcommittees.³⁸

Notice Required for Hearings, Clause 2(g)(3)

The chair is required to announce the date, place, and subject matter of each hearing, which may not commence prior to one week after such notice.³⁹ Hearing announcements are to be published "promptly" in the Daily Digest section of the Congressional Record and in publicly available electronic form.

The hearing notice requirement, which does not apply to the Committee on Rules, may be waived by committee vote, a quorum for the transaction of business being present, or if the chair, with the concurrence of the ranking member, determines that there is a "good cause" reason to do so, in which case the chair is to provide notice of the new date "at the earliest possible time."⁴⁰

The Education and Workforce Committee requires 14 days' notice for subcommittee hearings held outside of Washington, DC.⁴¹

Some committee rules require:

• the chair of the full committee to consult with the ranking member, and the chair of a subcommittee to consult with the chair of the full committee, the ranking member of the subcommittee, and the chairs of the other subcommittees before announcing a hearing⁴²;
• the chair or subcommittee chair to announce to committee members the list of witnesses a specified number of hours or days prior to the hearing⁴³; or
• the notice announcement (or a separate memorandum) to include a brief summary of the subject matter of the hearing and any associated legislative reports, reports from agencies and departments, and other relevant materials.⁴⁴

Notice Required for Business Meetings, Clause 2(g)(3)

The chair is required to announce the date, place, and subject matter (agenda) of each business meeting, commonly called to markup legislation, which may not commence earlier than the "third calendar day"⁴⁵ (excluding Saturdays, Sundays, and legal holidays except when the House is in session on such a day) after notice is provided to committee members.

Meeting announcements are to be published "promptly" in the Daily Digest section of the Congressional Record and in publicly available electronic form.

The meeting notice requirements may be waived by committee vote, a quorum for the transaction of business being present, or if the chair, with the concurrence of the ranking member, determines that there is a "good cause" reason to do so. In which case, the chair shall provide notice of the new date "at the earliest possible time."

The notice requirement does not apply to the Committee on Rules.

Some committee rules require:

• a longer period of notice to committee members (e.g., 36, 48, or one week) for regular legislative markups⁴⁶;
• a longer period of notice for markups of proposed changes to committee rules⁴⁷;
• additional notice (e.g., 14 days) for subcommittee meetings held outside of Washington, DC⁴⁸; or
• a particular staff member to provide notice (e.g., the committee clerk or the majority staff director) of a meeting.⁴⁹

Availability of Legislative Text, Clause 2(g)(4)

At least 24 hours in advance of a markup, or at the time of the markup's announcement if the business meeting notice requirement is waived pursuant to Rule XI, clause 2(g)(3)(B),⁵⁰ the chair of the committee shall make the text of the legislation to be marked up publicly available in electronic form.⁵¹

The Committee on Rules is excluded from this requirement.⁵²

Some committee rules:

• require availability periods of more than 24 hours for committee members to review the text of legislative measures or changes to committee rules,⁵³
• require or give priority to amendments filed a specified time in advance of the markup or explicitly require or give priority to amendments to be offered in written form,⁵⁴
• set availability periods for the text of subcommittee recommendations to the full committee,⁵⁵
• require a measure recommended by a subcommittee to be accompanied by a section-by-section analysis,⁵⁶
• require an agenda or memorandum to be provided to members a specified time before the markup explaining the need for the legislation and summarizing the major provisions,⁵⁷
• require measures to have associated cost estimates from the Congressional Budget Office at the time of the measures' markups,⁵⁸ and
• require any printed subcommittee hearings on legislation to be made available to members.⁵⁹

Written Statements of Proposed Testimony, Clause 2(g)(5), (6), and (7)

"To the greatest extent practicable," each committee shall require witnesses to submit written statements of proposed testimony in advance of a hearing and limit their presentations in the hearing to "brief summaries" of those statements.

Such a witness statement, with necessary redactions to safeguard witness privacy and security, is to be made publicly available in electronic form at least 24 hours before the witness's appearance, "to the extent practicable," but no later than one day after the appearance.

A point of order cannot be made against a reported measure on the grounds that hearings for the measure did not follow the procedures outlined in this clause unless the point of order is made by a member of the committee that reported the measure and a point of order was timely made and improperly disposed of in the committee.

This requirement does not apply to overall budget hearings conducted by the Committee on Appropriations pursuant to clause 4(a)(1) of House Rule X.

Some committee rules provide that

• witnesses are to submit written statements a specified number of hours or days in advance of their appearances,⁶⁰
• a witness may be excluded from a hearing if a statement is not submitted,⁶¹ and
• statements containing classified or sensitive information be made available only in committee rooms and not to the public.⁶²

Nongovernmental Witness Disclosures (Truth-in-Testimony Rule), Clause 2(g)(5), (6), and (7)

If a witness is appearing in a nongovernmental capacity, the witness's written statement of proposed testimony is to include

• a curriculum vitae;
• a disclosure of any federal grants or contracts—as well as any contracts, grants, or payments from foreign governments—received within the past 36 months by the witness or by any entity the witness represents if these are related to the subject matter of the hearing; and
• a disclosure of whether the witness serves as a fiduciary (such as a director, officer, advisor, or resident agent) for any organization or entity that has an interest in the subject matter of the hearing.

The disclosure must specify:

• the amount and source of each federal grant (or subgrant) or contract (or subcontract) related to the hearing's subject matter, and
• the amount and country of origin for any payment or contract from a foreign government related to the subject matter of the hearing.

These statements, with any necessary redactions to protect the privacy or security of the witness, are to be made publicly available in electronic form at least 24 hours before the witness testifies "to the extent practicable" but no later than one day after the witness's appearance.

A point of order cannot be made against a reported measure on the grounds that hearings for the measure did not follow the procedures outlined in this clause unless the point of order is made by a member of the committee that reported the measure and was timely made and improperly disposed of in the committee.

These requirements do not apply to overall budget hearings of the Committee on Appropriations, which are governed by clause 4(a)(1) of House Rule X.

In addition to the clause 2(g) requirements, the Natural Resources Committee requires nongovernmental witnesses to disclose any current or pending litigation involving the federal government,⁶³ and the Foreign Affairs Committee requires nongovernmental witnesses to disclose if they are "negotiating or awaiting approval" to receive contracts, grants, or payments with or from foreign governments.⁶⁴

Quorum Requirements, Clause 2(h)

Reporting Quorum, Clause 2(h)(1)

A committee may not report a measure or recommendation unless a majority of the committee is actually present.⁶⁵

Hearing Quorum, Clause 2(h)(2)

A quorum to take testimony or receive evidence (at hearings) is no fewer than two members.

Several committees state that the chairs and ranking minority members of the full committees are "ex officio" members of the subcommittees. As such, these members are explicitly enabled to participate in subcommittee hearings.⁶⁶ In addition, some committee rules specify that ex officio members count in the establishment of a hearing quorum.⁶⁷

Some committees:

• require or encourage the chair of the committee or subcommittee to ensure that the relevant ranking minority member is present when a hearing is convened,⁶⁸
• require or encourage the two-member quorum to be one majority party member and one minority party member or that at least one member of the majority party is present,⁶⁹ or
• establish different quorums for different types of hearings.⁷⁰

Business Meeting (Markup) Quorum, Clause 2(h)(3)

For taking actions (i.e., markups) that do not require the attendance of the majority of the committee, the quorum for each committee (except Appropriations, Budget, and Ways and Means) is no less than one-third of its membership. For Appropriations, Budget, and Ways and Means, the business quorum is a majority of committee members.

Some committee rules:

• state that the quorum for a regular business meeting is a majority of members or that a specified type of business meeting is a majority of members,⁷¹
• state that the quorum for a specified type of business meeting is a majority of members,⁷²
• enable a subcommittee's ex officio members (the chair and ranking member of the full committee) to count for determining a quorum,⁷³ or
• require the chair's staff to consult with the ranking minority member's staff when scheduling meetings to ensure that the quorum includes at least one minority member.⁷⁴

Postponing and Resuming Committee Proceedings, Clause 2(h)(4)

Each committee may permit the chair of the committee or subcommittee to postpone further proceedings when a record (roll call) vote is ordered on the approval of a measure or matter or on the adoption of an amendment. The chair may resume action on the postponed question at any time after "reasonable notice."

Any committee rule adopted under this provision is to provide that when proceedings resume on a postponed question, the underlying proposition (i.e., the bill, amendment, or motion) remains subject to further debate or amendment to the same extent as it was before the postponement regardless of any intervening order for the previous question.

Several committees have explicitly permitted their chairs to postpone further proceedings pursuant to clause 2(h)(4), while Armed Services requires the chair to do so with the concurrence of the ranking minority member, and Natural Resources and Energy and Commerce require the chairs to do so after consultation with the minority ranking member.⁷⁵

Some committee rules provide that the chair resume proceedings:

• with the concurrence of or in consultation with the ranking minority member⁷⁶ or
• no later than a specified time after the postponement.⁷⁷

Limitation on Committee Sittings, Clause 2(i)

A committee may not meet during a joint session of the House and Senate or during a recess when a joint meeting is taking place.

Most committees' rules include provisions meant to avoid the scheduling of a subcommittee meeting during a full committee meeting or another subcommittee's meeting.

Additional committee rules restrict or discourage chairs from scheduling:

• a committee or subcommittee meeting at the same time as a party caucus or conference meetings⁷⁸ or
• a hearing before the first or last vote of a legislative week, or outside Washington, DC, without prior consultation with the relevant ranking minority member.⁷⁹

Calling and Questioning Witnesses, Clause 2(j)

Selection of Witnesses (Minority Witness Rule), Clause 2(j)(1)

During a hearing on any measure or matter, the minority shall be allowed to select witnesses to testify on at least one day of the hearing when the chair receives such a request from a majority of the minority party before the completion of the hearing.⁸⁰

Several committees' rules explicitly note adherence to the minority witness rule.

Some committee rules state that

• the minority party may waive its rights or consider the rights fulfilled under the minority witness rule if the chair permits the minority to call at least one witness during a committee hearing or subcommittee hearing⁸¹; or
• if the minority witness rule is invoked, the chair, with the concurrence of the ranking minority member, will determine the date, time, and place of such hearing.⁸²

Five-Minute Rule for Questioning, Clause 2(j)(2)(A)

During a hearing, each committee operates under the five-minute rule for questioning witnesses, proceeding until each member "who so desires" has had the opportunity to question each witness.

Some committees have allowed House Members who are not members of the full committee—or members of the full committee who are not members of the subcommittee—to question witnesses. The committees' rules specify how such House Members may participate in hearings without allowing these individuals to vote on matters before the committee or subcommittee.⁸³

Committee rules have also provided guidance for the order of recognition beyond the common practice of recognizing first a majority party member, followed by a minority party member, and alternating thereafter in the order of seniority.

Some committee rules:

• specify that the chair recognizes members who arrive to the hearing before it begins based on seniority, and the chair recognizes members who arrive after the hearing begins in the order in which they arrive (the "early bird" rule)⁸⁴;
• specify that chairs recognize members in consideration of the ratio of majority and minority members present as to not disadvantage the majority party or to not disadvantage either party (e.g., the chair may recognize two majority party members before recognizing one minority party member)⁸⁵;
• specify that, after all members wishing to ask questions have had the opportunity to do so, the chair may allow additional rounds of questioning and impose time limits on such rounds⁸⁶;
• explicitly state that the five-minute limitation shall not apply to the chair or the ranking minority member of the full committee or a subcommittee⁸⁷;
• explicitly state that members' five-minute periods may be exceeded by the chair's authorization or by motion offered by the chair⁸⁸;
• state that the chair may deviate from regular questioning procedures with the concurrence of the ranking member provided that the process is announced before the hearing begins and that it applies equally to both parties⁸⁹; or
• require that the questions asked during hearings be pertinent or germane to the measure or matter being considered.⁹⁰

Extended Questioning by Committee Members and Staff, Clause 2(j)(2)(B); Clause 2(j)(2)(C)

A committee may adopt a motion or rule that allows for an extended period of questioning, up to one hour, for a specified number of members, provided that the majority and minority are allotted equal time.⁹¹ A committee may also adopt a motion or rule that allows majority and minority committee staff to question a witness for equal, specified periods not exceeding "one hour in the aggregate."⁹²

Some committees note in their rules that they may extend questioning by motion, an action that would be allowed pursuant to the House rules provision even if not explicitly stated in the committees' rules. Committees that have established committee rules to allow extended questioning are not required to conduct votes on motions to allow this action to occur.

Some committee rules provide that

• the chair consults with the minority leader before conducting a period of extended questioning by members or staff⁹³;
• the chair receives the concurrence of the minority leader to extend questioning⁹⁴; or
• for investigative hearings or hearings conducted in executive sessions, any questioning by committee staff must be conducted by majority or minority counsel.⁹⁵

Hearing Procedures, Clause 2(k)

Opening Statement, Clause 2(k)(1)

The chair shall announce the subject of the hearing in an opening statement.

Some committee rules:

• explicitly state that other members' written opening statements will be included in the official hearing record⁹⁶;
• explicitly state that the ranking minority member, or the ranking minority member's designee, may make an opening statement in addition to the chair or the chair's designee⁹⁷;
• explicitly allow the chair or ranking minority member of the full committee, or their designees, to make opening statements in a subcommittee hearing⁹⁸;
• allow other members to give opening statements⁹⁹; or
• limit opening statements to a certain number of minutes.¹⁰⁰

Availability of Written Rules, Clause 2(k)(2)

A copy of the committee's rules and clause 2(k) of House Rule XI, "Hearing Procedures," are required to be provided to each witness upon request.

Witness Counsel, Clause 2(k)(3)

Witnesses at hearings may be accompanied by their own counsel to advise them of their constitutional rights.

Most committee rules either restate clause 2(k)(3) or are silent on this provision. However, due to the specialized nature of their hearings, the Committee on Homeland Security and the Permanent Select Committee on Intelligence provide additional requirements regarding the role of counsel, especially during closed hearings in which classified information might be discussed,¹⁰¹ while Oversight and Government Reform requires witness counsel to "promptly" submit a notice of appearance to the committee.¹⁰²

Order and Decorum, Clause 2(k)(4)

The chair may impose penalties for violations of order and decorum or of professional ethics by counsel. Penalties may include censure and/or exclusion from the hearing. Additionally, the committee may cite the offender to the House for contempt.

Veterans' Affairs specifies that breaches of decorum include actions that affect the health and safety of members, staff, and others present or impedes the business of the committee.¹⁰³ The rules of the Intelligence Committee provide that a chair may temporarily remove counsel from any committee proceeding for failing to act in an ethical or professional manner, but a majority of the committee members may vote on a motion to reverse the chair's decision.¹⁰⁴

Assertion of Defaming, Degrading, or Incriminating Evidence or Testimony, Clause 2(k)(5)-(6)

Notwithstanding clause 2(g)(2) of House Rule XI, when a committee member asserts that evidence or testimony presented at a hearing may tend to defame, degrade, or incriminate any person—or a witness makes the same assertion about the evidence or testimony the witness would give—the committee is to receive the testimony in closed executive session if the committee, with a hearing quorum present (as few as two members, depending on the committee), determines by majority vote to close a hearing to the public.¹⁰⁵ The committee is to proceed to hear such testimony in an open session only if, with a majority of members present, it determines that the evidence or testimony will not defame, degrade, or incriminate any person.

In either case, the rule directs the committee to allow the subject of the testimony to voluntarily appear as a witness. The committee may also receive and dispose of requests from the subject of the testimony to subpoena additional witnesses.

Members may make additional motions to subpoena witnesses, which are then disposed of by the committee.

The rules for the Homeland Security Committee require a majority present, rather than a hearing quorum present, for votes to close a hearing because the testimony, evidence, or other matters would tend to defame, degrade, or incriminate a witness.¹⁰⁶ The Permanent Select Committee on Intelligence allows any person who believes that testimony presented at a public hearing could negatively impact the person's reputation to submit a sworn statement outlining the relevant facts concerning the testimony, evidence, or comments, as well as proposed questions for cross-examining other witnesses.¹⁰⁷

Release of Evidence Taken in Executive Session, Clause 2(k)(7)

Evidence or testimony taken in executive session and proceedings conducted in executive session may not be released or used in public sessions except by committee authorization. A majority of the committee must be present at the time a vote is taken to authorize the release of testimony taken in executive session.¹⁰⁸

The Homeland Security Committee enables committee members and staff to provide executive session testimony to appropriate government personnel for purposes of obtaining an official classification.¹⁰⁹ The Armed Services and Intelligence Committees' rules state that any classified national security information received by the committee or any subcommittee shall be deemed as having been received in executive session.¹¹⁰

Sworn Written Statements for the Record, Clause 2(k)(8)

At the committee's discretion, witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record. The committee is the sole judge of the pertinence of testimony and evidence presented at its hearing.

Transcript Copies of Witness Testimony, Clause 2(k)(9)

Witnesses may obtain transcripts of their public testimony. They may also receive transcripts of their testimony given in executive session when authorized by the committee.

Several committees have rules regarding the ability of witnesses to correct hearing transcripts. They may also provide a time window in which any public witness, or someone authorized by the witness, may request a transcript of the witness's testimony.¹¹¹ The Permanent Select Committee on Intelligence specifies that a witness's counsel may review a transcript containing classified content only if the counsel holds the necessary security clearances. The committee also allows any portion of the witness's testimony given in executive session to be made available to the witness if it is subsequently quoted or intended to be part of a public record.¹¹²

Supplemental, Minority, Additional, or Dissenting Views, Clause 2(l)

At the time a committee approves a measure or matter, a committee member (other than from the Committee on Rules) may give notice of intention to submit supplemental, minority, additional, or dissenting views for the committee's report to the House, which is filed in accordance with clause 2 of House Rule XIII.¹¹³ If such notification occurs, all committee members have no less than two additional calendar days (excluding Saturdays, Sundays, and legal holidays unless the House is in session on those days) to file their written and signed views (including in electronic form) with the clerk of the committee.

The Foreign Affairs Committee specifies in its rules that no later than 24 hours before a measure's report is filed with the Clerk of the House, the chair is to make a draft copy of the report available to committee members to allow them to prepare and submit any supplemental, minority, or additional views that they may deem appropriate.¹¹⁴

Power to Sit and Act, Clause 2(m)¹¹⁵

A committee may sit and act at any time and at any place within the United States regardless of whether the House is in session, has recessed, or has adjourned. A committee may hold such hearings as the committee considers necessary. The chair, or a member designated by the chair, may administer oaths to witnesses.

Voting by Electronic Device, Clause 2(n)

A committee may establish a rule or motion allowing votes to be conducted by electronic device in accordance with regulations provided for publication in the Congressional Record by the chair of the Committee on Rules and the chair of the Committee on House Administration.

Clause 2(n) was established by H.Res. 5, the House rules package for the 119^th Congress.¹¹⁶ Early in that Congress, several committees adopted a rule stating: "The chair may conduct any record vote by electronic device in accordance with clause 2(n) of House Rule XI."¹¹⁷

Footnotes