One beautifully messy process of democracy that may fall victim to COVID 19 is the all night committee hearing. Legislative insiders—not to mention their families, friends, and pets—complain about these marathon events…but the hearings play a critical role in the legislative process.
A committee hearing may go into the wee hours of the morning if that committee has decided to hear a controversial bill, because hundreds of people may have traveled to the Capitol to testify. Attempts to short-change public testimony fare poorly in Texas: with Texans making their way to Austin by planes, trains, and automobiles, legislators feel pressure to let every witness say their piece—at least for 2-3 minutes. These hearings can provide the most significant opportunity for individuals who would be directly impacted by legislation to gain the attention of lawmakers and the media, and turnout at public hearings often serves as a barometer of just how intense public sentiment runs on an issue.
The eventual vote of the committee often amounts to a fait accompli, but historically, the all-night committee hearing is a procedural tool for preventing the most extreme partisan and fringe proposals from advancing through the legislative process. Here’s why: With an average of around 7,200 bills filed each session, more bills get referred to committee than committees could ever contend with in a 140-day session. Even with staff pushing the limits of human endurance, one hearing per week produces about a week’s worth of work, and there are a limited number of weeks — usually around 8 — for any committee to hold public hearings on bills originating in that committee’s chamber.
It follows that for a committee to spend an entire hearing on one legislator’s controversial bill, that bill had better be worth the time. A committee chair could be accommodating dozens of other legislators by hearing their non-controversial bills in about the same amount of time. A committee chair who spends too many precious hearings on controversial bills, will face the ire of other legislators who realize that their bills are stuck in that committee.
All of these committee considerations could become moot, however, if the members of the public don’t show up to testify on controversial bills. Without the looming possibility of hours of public testimony, committee chairs could feel much more free to schedule even highly controversial bills knowing the bills will not take up inordinate time during their hearings. With COVID vaccinations still lagging the virus’ spread throughout the state, Texans should not be gathering in small, crowded, windowless rooms for hours at a time, risking their very lives for the opportunity to testify on an issue that might itself also be a matter of life and death.
The Senate Committee on Redistricting has proven virtual public testimony is possible. That committee is holding all of its hearings online, thereby allowing public testimony from even remote corners of the state. However, the Senate has “decided not to decide” how to handle virtual testimony in all its other committees for the first 60 days. Should a Senate committee decide to meet before the 60th day, then a person will need to come to the Capitol to testify orally; submit written testimony; or register a position.
The House rules provide for virtual testimony—but not for the public. Witnesses must be invited to testify virtually. The chair of the committee controls who is invited. Another legislator on the committee can request the chair to invite a person, but the chair is under no obligation to comply with the request. There is no limit on how many people the chair may invite, but there also is no requirement that the chair invite any witnesses at all. Written testimony must be delivered to the committee clerk during the hearing inside the Capitol. Witnesses can register positions using a kiosk that will be made available outside of the Capitol, or using the Capitol Wi-Fi.
The House rules also create a “public comment” process, but that process is a work in progress. It is clear, however, that public comments generated through that process would not be attached to the committee’s minutes, or to the bill on which they comment, as part of any official record. The official record becomes critical later in the session, when hundreds of bills are calendared for floor action, and legislative staff must rely on written testimony and witness lists in developing recommendations for legislators.
Committee “season” usually runs from early March through April, and there is reason to hope that by March, many more potential witnesses will have been vaccinated and feel some increased level of comfort with in-person testimony. However, in his State of the State address, the Governor named five “emergency” items, raising the prospect that committees might hold hearings on these five topics, most of which are highly controversial, before mid-February.
The Texas Constitution allows the Legislature to pass a bill before the first 60 days if the Governor has named a subject to be an “emergency.” Ultimately, however, the determination of an issue’s “emergency” status rests with legislative leaders, who must choose when—and whether—to set bills for hearings.
Texas legislators have three clear options for ensuring robust public participation in the committee process as is Texas’ proud tradition: they can adopt uniform, expansive use of virtual public testimony; they can delay committee hearings until the state has reached an agreed-upon threshold for vaccinations; or they can reject the “emergency” status of any issue so that no bills can be considered until after the 60th legislative day. Any other approach would shortchange one of the core processes of Texas democracy.