I’ll confess that I did not watch the entire Judiciary Committee hearing with Bill Barr; I’m grateful that Andy and Rich did the work for me. But I have seen enough of it to fully agree with their sentiments. It was a circus, full of gross process fouls, and everyone who is familiar at all with Congress knows it.
I was chairman of a House committee for four years. The best chairman I ever served under before or since was Ron Dellums of California, who chaired the House Armed Services Committee during my first term. Ron was pretty much an open socialist, and I didn’t agree with him about anything. But he was a gentleman and smart as a whip, and watching him chair a committee was a great lesson for anybody who had the sense to realize it.
The chairman of a committee is and should be a partisan for his own policy agenda. He expresses that by the subjects he chooses to investigate or legislate, the witnesses he chooses to testify, the timing of hearings, and the activities of the staff he directs.
It’s the privilege of the majority to set and pursue its agenda. But when the hearings begin, the chairman has to act in a more balanced way, like a judge in a courtroom.
Of course styles vary; I was always very informal, for example, and I bent the rules to encourage lively discussion and a debate-like atmosphere. That was partly selfish on my part. Chairmen have to sit through the entire hearing; hearings are, generally, long and dull affairs; and I am easily bored. I liked to stir things up.
But whatever a chairman’s stylistic preference, he has to be even-handed in executing it. Everyone deserves a chance to participate and to advance and defend their views, and the chairman is the guardian of that equity. That’s not just basic fairness; it’s a matter of respect for the constitutional processes, and of the verdict of the people, by which both elected and appointed officers hold their positions.
The five-minute rule was much in display in the Barr hearing. It’s a necessary rule, because otherwise the more junior members would never get the chance to ask questions. But it’s not a straitjacket. The chairman has discretion to give colleagues or witnesses a little more time when it advances the purposes of the hearings.
If the witness is filibustering rather than responding — and that tactic is quite commonly used by seasoned cabinet secretaries and sub-cabinet officials — the chairman should simply remind them that if they don’t respond to the question within the five-minute limit, he’ll allow the member more time to pin the witness down.
Another possibility is for the chairman to take a few minutes himself to follow up on an intriguing question before recognizing the next member. I always reserved to myself and the ranking member the right to ask as many questions as either of us wanted. Usually we would both wait until the end of the hearing out of courtesy to our colleagues, but if a more timely intervention was helpful to establish an important point, I didn’t hesitate to make it, and I never denied the ranking member that opportunity either.
Here is what a chairman should not do.
He should not allow repeated interruptions of witnesses, whether in the name of “reclaiming my time” or not. Members don’t have to ask questions with their time — they can use their entire five minutes to make a statement if they want — but if they ask a question, the witness has to be allowed to answer it.
He should never allow either members or witnesses to be attacked without giving them a chance to respond. It’s fine for members to get rough with witnesses who are professionals, such as government officials, representatives of special-interest groups, or big-shot public figures — as long as the member is willing to take it as well as dish it out. Any member of either party who is afraid of a devastating response should not initiate the attack.
One other ironclad rule for chairing a committee hearing: If, after hours of testifying, a witness needs a bathroom break, you have to give it to him.
Nobody is perfect of course, and occasionally hearings get out of hand, especially in highly partisan committees such as Judiciary. The Democrats on the committee were probably upset by the fact that Barr had dodged testifying for a year. I understand that, but the way they handled the hearing just vindicated Barr’s reluctance.
An able witness is an able witness, and the current attorney general is very accomplished in what he does. He may beat you if you treat him fairly, but he’ll certainly make you look foolish if you don’t.
As I said, this is all a matter of basic fairness and respect for the Constitution. But it’s also important to the effectiveness and reputation of the chairman and the party he represents. There is a reason stories about the Barr hearing received such play on conservative media. Nobody who watched the hearing, and who was not a convinced Democrat, came away from it with a good opinion of the House majority. And I suspect even Democratic partisans realized it was an unforced error and an epic fail.