Reclaiming the Congressional Hearing
In the 2014 elections, the Republicans won control of Congress for the first time since 2006. Thus far, they have not passed many laws to show for it. Despite great promise and fanfare, the GOP Congress quickly found itself tangled up on questions like whether to fund the Department of Homeland Security, which showed that the Democratic minority would have the ability to block most of the new majority's legislative initiatives. When Keystone XL Pipeline legislation did make it past the Senate Democrats, it was quickly squelched by a presidential veto, highlighting the apparent impotence of the GOP majority.
The reason for this impotence is that our system is designed to limit what each branch can do on its own. Congress can't pass laws without the president's signature. Executive orders and presidential directives cannot attain permanence without legislative cooperation. Courts rule on laws already passed by Congress and on the constitutionality of administration actions. That said, there are some things that each branch can do independently. With respect to Congress, perhaps its most powerful stand-alone tool is the Congressional hearing: No presidential signature is required for action, and one needs only a majority to run a hearing.
The Congressional hearing offers tools Congress will need if it is to begin to reclaim its rightful, Constitutional place as the most powerful branch of government. In the mid-20th century, hearings rapidly became a common means by which both parties advanced their agendas. With the rise of television, these experiments in political theater captured the nation's attention, making and breaking political careers and bringing important issues to the public's attention. But the drop in the number of hearings in recent years suggests that the heyday of the hearing may be behind us.
As one of the only avenues for independent Congressional action, hearings offer a valuable political resource for the majority party in Congress. If Republicans are to take full advantage of this resource during the 114th Congress — or during any future Congresses they control — they need to understand the history, import, potential, and pitfalls of the Congressional hearing.
A 20TH-CENTURY PHENOMENON
As with many aspects of our democratic republic, the character and purpose of congressional hearings have changed a good bit over time. Hearings in our earliest Congresses were actually quite rare. According to congressional analyst Andrea Sevetson, the 22nd Congress — from 1831 to 1833 — held a grand total of only three hearings. The 37th Congress, from 1861 to 1863, which oversaw the first half of the Civil War, held 37 hearings. This increase in hearings during wartime is not coincidental; the more power and funding that accrue to Washington, the greater the need for oversight. And as the federal government has become larger and more powerful over the last two centuries, the number of hearings has generally increased, to the point where a hearing is no longer a rare event but something that takes place on a regular basis — nearly every day when Congress is in session.
Still, until almost the end of the 19th century, Congress would hold fewer than 100 hearings in each two-year cycle. That number was only exceeded during the 44th Congress, from 1875 to 1877. The 53rd Congress, from 1893 to 1895, was the last to hold fewer than 100. The number continued to grow during the 20th century, to the point where the 92nd Congress, from 1971 to 1972, held over 2,000 hearings. With the onset of so many hearings, no one could possibly follow all of their developments. Furthermore, hearings became larger, longer, and increasingly complex, with committees having more panels and calling more witnesses. In recent years, the seemingly never-ending parade of hearings has abated somewhat, but the stark fact is this: The Congressional hearing, a relatively minor aspect of 19th-century governance, emerged in the last century as a key element of life in Washington, and it is in many cases the face that Washington offers the nation.
In order to understand the potential and possibilities of hearings, it is important to look at the variety of reasons why hearings take place. Earlier hearings were more likely to be of an investigative nature, and while these are probably the best known kind of hearing, they are far from the only kind. Political scientist Holly Brasher has attempted to characterize the various types of hearings and found that one of the most remarkable things about them is how little consensus there has been about the role they play. According to Brasher, hearings have been variously described as opportunities for fact-finding; for social catharsis; to develop, consolidate, and reinforce existing support; to increase support among new constituencies; for window dressing; for political theater; to manage the legislative process; and for a member to demonstrate specialized knowledge to other members or the outside world. Current legislators should take note: Each of these different purposes requires different strategies, approaches, and skills on the part of those running the show.
Obviously, with all of these kinds of hearings, no one member can master all of the different approaches. Members can, and indeed must, learn to use hearings to suit their larger goals. But while there may be no consensus on the purpose of congressional hearings in the academic world, and all of the above categories will sound familiar to those with even a basic understanding of Congress, it is clear that hearings aim to serve one overarching purpose: to advance the political and policy goals of the party in the majority. Naïfs may argue that the goal should be to provide Congress with the best possible information and ensure the best possible legislative result. But the fact of the matter is that Congress does not and has not acted in that way, and an analysis along those lines would fail to account for the real role that hearings play in our system.
Three crucial developments have led to the expanded role that hearings have played over time. The first was the requirement that, beginning in 1938, records be kept of all hearings. This not only ensured that hearings were accessible to those outside the hearing room, but it also made them part of the historical record. Of the 37 hearings in the 37th Congress mentioned above, 35 were unpublished, which may have diminished their impact some at the time but has certainly limited their historical significance.
The second development was the immense growth of government in the 20th century, particularly during the Franklin Roosevelt administration. Before the turn of the century, federal government spending as a share of gross domestic product was less than 5%. It remained around the 4% range throughout the 1920s. But during the Roosevelt administration, that figure jumped to about 10% of GDP in the 1930s as government expanded to cope with the Great Depression (while, of course, GDP fell), and then spending increased to over 40% during World War II. After the war, it dropped down again into the 15% range, but it has climbed since then to a little over 20%, peaking at over 24% in 2009.
All of this spending in Washington led to greater interest in how that money was being spent, and congressional hearings offered one of the best ways to find out. From 1941 to 1944, for example, as spending on World War II was reaching its peak, little-known Missouri senator Harry Truman headed the Senate Special Committee to Investigate the National Defense Program, a bipartisan effort tasked with looking at inefficiencies and waste related to the war effort. In part as a result of his work on the committee, Truman was put on the ballot to run with Roosevelt in 1944, replacing the sitting vice president, Henry Wallace.
Though Congressional hearings successfully propelled several politicians to prominence in the first half of the 20th century, hearings would not attain their current status in the public mind until the third development took place — namely, television. Most of us know about Congressional hearings from indelible moments on television, be they from the Army-McCarthy hearings of 1954, the Watergate hearings of 1973-74, or the 1987 Iran-Contra hearings. These hearings all captured the attention of America and became part of our cultural lexicon. This is not to say that hearings before television had no impact; certainly the Truman hearings and others had long-term effects. But it has been the televised hearings that have provided the iconic moments, both transforming our politics and establishing our understanding and conceptions of hearings as such.
THE MIRACLE OF TELEVISION
The first hearing to capture the attention of the American people through television was the Army-McCarthy hearing, which lasted from April to June of 1954. Wisconsin senator Joseph McCarthy often used hearings to advance his accusations regarding communism in government. In typical McCarthy-chaired hearings, other senators from both parties tended not to show up, allowing McCarthy and his aides to run the events as they saw fit, badgering witnesses and silencing any dissenting voices. These particular hearings, however, were an investigation of McCarthy himself.
The background of the hearing is often forgotten today. The charge was that McCarthy had pressured the Army to give preferential treatment to his former aide G. David Schine. McCarthy, the chairman of the Permanent Subcommittee on Investigations, recused himself, leaving his friend and ally, South Dakota's Karl Mundt, to take charge of the hearing. The hearing ultimately acquitted McCarthy of the charge of aiding Schine, although it was pretty clear that the committee's chief counsel, Roy Cohn, had at a minimum badgered the Army on behalf of Schine.
The Army-McCarthy hearings are remembered for their drama, but the reason they garnered so much attention in 1954 was that they were televised. And the fact that they were on television was not accidental. McCarthy had powerful enemies in both parties. At the same time, however, both parties were afraid of his popularity and afraid of being tarred by his accusations of communism. For this reason, then-Senate majority leader Lyndon Johnson and President Dwight Eisenhower, both McCarthy opponents, were careful to remain publicly neutral on the subject of McCarthy. Eisenhower, in particular, was concerned that devoting presidential attention to the senator might redound to McCarthy's advantage, saying, "I just won't get into a pissing contest with that skunk."
Both the Republican Eisenhower and the Democratic Johnson recognized that going after McCarthy directly was dangerous. They also saw that TV could allow McCarthy to damage himself. Both felt that McCarthy would not play well on live TV, tarnishing his image, especially after prolonged exposure before the American people. Consequently, as Eisenhower aide Jim Hagerty wrote in his diary, "Ike wants hearings open and televised." Johnson felt similarly: According to Johnson's brother Sam Houston Johnson, Johnson felt that "two minutes a night on television during the Army hearings wasn't enough. McCarthy had to be seen day after day during the entire hearings on the Army. He thought that would make people see what the bastard was up to."
Eisenhower and Johnson were right. The hearings permanently damaged McCarthy, who came off as a cruel and unkempt bully. The most dramatic moment of the hearing, and the one that still sticks to McCarthy's cultural memory to this day, was Army lawyer Joseph Welch's charge to McCarthy: "Have you no sense of decency, sir? At long last, have you left no sense of decency?" Welch's words came in response to a McCarthy effort to bring in the name of a young lawyer, Fred Fisher, whom Welch had intentionally not put on his staff because he knew Fisher had connections to the National Lawyer's Guild, which had itself been tarred with communist associations. Welch's outrage at McCarthy's attempt to smear a man uninvolved with the hearing was genuine, and the entire incident became a defining moment for both the hearing and McCarthy's career.
The damage the incident inflicted on McCarthy was compounded because of television. According to McCarthy biographer James Giblin, TV viewership actually increased during the course of the hearings, suggesting that the American people were getting more interested in the hearings as time went on. (The famous Welch incident took place on June 9, in the third month of the inquiry.) As Giblin wrote, the "telecasts proved to be a new kind of phenomenon, and a preview of TV news spectaculars to come. Viewers might not grasp all the details of what was discussed, but they became involved with the central figures in the hearings as if they were characters in a soap opera." Each character developed identifiable traits for the TV-watching audience: Cohn was "the fast-talking, shifty-looking wise guy whom you'd have doubts about"; Welch "was the good neighbor with a crinkly smile and a sharp wit"; and, as for McCarthy, "well, Joe just wasn't appealing on television, especially when you saw him every day."
Using the power of television to tell a story is the first lesson of running a successful congressional hearing in the modern era. Even at that early date, it was no accident that both Eisenhower and Johnson saw television as the path to McCarthy's downfall. Eisenhower was especially savvy and groundbreaking when it came to the use of television as a political tool. He was the first president to have his news conferences televised, to have an ad agency produce a TV commercial, and to have a Hollywood adviser — the actor Robert Montgomery — give him communications advice. Johnson, for his part, was aware of TV's power and would be frustrated by what he recognized as his own deficiencies as a communicator on television. Both men understood that television made McCarthy vulnerable, and they did their best to help bring about his downfall, with the American people watching. In the words of TV historians Gary Edgerton and Peter Rollins, the Army-McCarthy hearings were "America's first nationally televised political spectacle." They would be far from the last.
The TV penetration rate at the time of the Army-McCarthy hearings was 56%. That proved enough to destroy a popular senator. TV would get only more powerful, of course; in 1964, TV had bypassed newspapers as the primary news source for the American public, and by the time a U.S. president was in the crosshairs of a Congressional hearing, TV ownership was nearly universal, and the media landscape was dominated by television. No one could or would be surprised by the ability of television to shape a political narrative.
CONTROLLING THE NARRATIVE
The fact that the American public had seen dramatic, televised hearings before did not mean that the Watergate hearings in 1973-74 lacked for surprise or dramatic moments. That the hearings took place at all was somewhat unexpected. In November of 1972, Nixon won an overwhelming re-election victory despite the fact that the Watergate burglary itself had taken place, and was reported in the press, in June of that year. Yet within a year of the burglary, and less than six months after Nixon's second inaugural, a Congressional committee was holding hearings on the Watergate burglary and subsequent cover-up.
In preparing for the hearings, the committee staff was acutely aware of the power of television and the importance of narrative. As Jim Hamilton, who served as a lawyer on the Senate Watergate Committee, recalled, "We built the hearings like a story." At the height of the hearings, they were on national television for three months. According to one estimate, 85% of Americans saw at least some part of the hearings on television. Sixty million Americans watched the testimony of White House counsel John Dean. Given these numbers, the Committee had to create a product worth watching, and they delivered. As Hamilton put it, with "some of the highest people in the Nixon administration (with the exception of the president) pulled in to testify...it was the best soap opera on TV."
The soap opera went on for a long time, over a year, and had its share of memorable moments. The famous question — "What did the president know, and when did he know it?" — which Senator Howard Baker asked Dean on June 25, 1973, remains a key and well-remembered moment. A little-known part of that episode is that one of Baker's staff, future senator and actor Fred Thompson, is believed to have come up with the question for his boss.
Baker's famous question would take on additional relevance a few weeks later. On July 16, under questioning from Thompson, White House aide Alexander Butterfield shocked the nation with the surprise revelation that Nixon had a secret taping system that recorded his meetings in the White House. This revelation was the biggest showstopper of the hearings, and it too had a fascinating backstory. Thompson's question, "Mr. Butterfield, are you aware of the installation of any listening devices in the Oval Office of the president?" was not a shot in the dark. Thompson knew the answer to his question before he asked it. On July 13, without Thompson present, committee investigators found out about the taping system in a private meeting with Butterfield. When Thompson heard that the Committee knew about the tapes, he notified Nixon's Special Counsel for Watergate, J. Fred Buzhardt, and then prepared the question that would make him famous. Furthermore, the Republican Thompson had the opportunity to ask the listening-devices question only because Committee chairman Sam Ervin thought it only fair that the Republicans, who had discovered the crucial piece of information, got to bring it out — a moment of bipartisanship unimaginable in modern hearings.
It was only after Butterfield's revelation that the Baker question became a query with a knowable answer. Suddenly, the Watergate scandal was about the tapes themselves and whether the president would have to turn them over to Congress. Watergate became a constitutional struggle, rather than an investigation of what happened. Once the Supreme Court ruled on July 24, 1974, over a year later, that Nixon would have to turn over the tapes, the Nixon presidency was effectively over. He resigned from office within a month.
The Watergate hearings teach another crucial lesson about holding an effective hearing: the importance of preparation and hard work. Baker's famous question to Dean came from a text prepared for him in advance: The committee devoted well over a year to the hearings, something that our attention-challenged electorate may have trouble comprehending. The Butterfield revelation — the most iconic moment of the hearings, and the one that doomed the Nixon presidency — came as a result of pre-hearing investigations and an off-camera interview with a key witness. In short, the TV moments may be what people remember, but those moments happen only after hours of preparation and investigation that take place long before the camera goes on.
PARTISANSHIP AND POLITICAL THEATER
A third hearing, one that also did not lack for TV time or hours of investigative work, was the Iran-Contra hearings. The hearings, which lasted from May to August of 1987, investigated the question of whether the Reagan administration had approved the selling of arms to Iran in exchange for hostages and the diversion of the proceeds to the Nicaraguan Contras — something that Congress had banned the government from doing. That the sale and transfer took place was not in doubt going into the hearings; the only questions were who had approved it and at what level. The famous Watergate question had become so ingrained in the American psyche that Vice President George H.W. Bush wrote in his diary, "The administration is in disarray — foreign policy in disarray — cover up — who knew what when?"
The focal point of the hearings became the testimony of National Security Council aide and Marine lieutenant colonel Oliver North. A Naval Academy graduate, Vietnam veteran, and winner of the Silver Star, Bronze Star, and two Purple Hearts, North seemed to have undertaken far more than any mid-level White House aide should have been able to do on his own. But he was so accomplished, and so apparently fearless, that it was just plausible that he had done so. His performance at the hearings enhanced the sense that he was some kind of super warrior and patriot. North may not have studied earlier hearings, but he knew how to take advantage of his moment in the spotlight.
The hearings were broadcast live on TV, pre-empting regular daytime programming. Despite some initial grumbles from soap-opera addicts, daytime TV viewing went up by 10% as the hearings captivated the nation. The highly decorated hero won over the American people on the first day of the hearings, saying things like "I came here to tell you the truth — the good, the bad, and the ugly." And unlike McCarthy, whose villainy was revealed on TV, or Nixon administration officials, who had their boss's secrets exposed on TV, North won over the TV-viewing public — and in the process, became a national phenomenon. Ollie-mania took America by storm. People wanted North's haircut (the "Ollie cut"), and there were Ollie shirts, Ollie dolls, and even Ollie sandwiches. He made the covers of both Time and Newsweek. As NBC News' Tom Brokaw told his viewers, "The most popular soap opera on television this week is the Iran-Contra inquiry starring Lt. Col. Oliver North....He is a star, a new national folk hero."
Despite North's personal magnetism, the Iran-Contra hearings were in some ways more of a last hurrah for Congressional hearings rather than proof of their efficacy. The Iran-Contra hearings involved far more of a partisan divide than had previous iconic hearings. In the Army-McCarthy hearings, Eisenhower and Johnson maneuvered behind the scenes, united against McCarthy. During Watergate, Democratic committee chairman Ervin gave the GOP staffer Thompson the chance to elicit the big revelation about the tapes. In the Iran-Contra hearings, however, things were more divided along party lines, with the Democrats mostly united on the attack and Republicans largely defending the administration. In fact, Bill McCollum, one of the minority members of the House Select Committee investigating Iran-Contra, later wrote: "Partisan bickering was the most distressing thing about the hearings. It got in the way of our purpose, which was to bring out the facts, to determine the President's credibility, and, finally, to recommend law and policy changes that reach far beyond these hearings."
It is, of course, a modern cliché to decry partisanship and to pine for a mythical era when partisan concerns did not play a role in governing. That said, it remains clear that modern hearings are more partisan, for a host of largely familiar reasons. The sorting out of parties according to ideology as opposed to region has created more cohesion within our two major parties and clearer divisions between them. The liberal Republican from the Northeast and the conservative Democrat from the South are now endangered species in the national legislature. Furthermore, the nationalization of media through cable and the internet means that politicians must be just as partisan for the C-SPAN cameras as they are in contesting local intra-party primaries.
Hearings also became more partisan as Congress began to use them to conduct political witch-hunts. The Watergate hearings elevated the profile of congressional investigations in much the same way that it highlighted the Woodward-and-Bernstein style of investigative journalism. Legislators and reporters alike learned to search for "gotcha" moments that could capture headlines, TV time, or both. A series of hearings in the 1980s and 1990s used the power of the congressional hearing to place a black hat on the heads of corporate executives or government officials from the opposing party.
Perhaps the best-known practitioner of this dark art was former California congressman Henry Waxman. Waxman was a sharp questioner, and he was eager to use his subpoena power. Along with his aggressive staff, he worked effectively with the media to highlight his investigations, and he knew how to stage hearings to make his witnesses fit into the categories he established, making his villains look evil and the do-gooders appear saintly.
In a now-legendary 1994 hearing, Waxman summoned tobacco executives from seven companies to grill them on whether they thought tobacco was addictive. As the New York Times described one highlight of the hearings that was clearly designed for the cameras, Congressman (now Senator) Ron Wyden "presented a stack of data from medical groups and a 1989 Surgeon General's report on the perils of smoking, asking each executive in turn if he believed that cigarettes were addictive. Each answered no." The volume of evidence arrayed against them was designed to make them look ridiculous. Waxman then entered the fray and grilled James Johnston, the head of R.J. Reynolds: "How many smokers die each year from cancer?" When Johnston replied, "I do not know how many," Waxman continued by asking whether smoking caused a host of conditions: "Does smoking cause heart disease? Does it cause lung cancer? Emphysema?" To each query, Johnston could offer only a weak "It may." A picture of the executives standing with their right hands in the air was on the front page of the New York Times under the damning headline, "Tobacco Chiefs Say Cigarettes Aren't Addictive."
The tobacco hearing was a high point for the Democrats in the use of manufactured hearings for political theater. In some ways, it also marked the beginning of the end for that kind of hearing. Seven months after the hearing, Republicans took over the House and Senate, the first time they had controlled both houses of Congress since the 1950s. Since then, even with the well-publicized impeachment hearings of President Bill Clinton in 1998, most hearings have not been as well received as the Waxman tobacco hearings were, let alone the compelling Watergate hearings. To the extent they have been covered, hearings began to be seen, and presented, through a partisan lens.
There are a number of reasons, beyond the rise in partisanship, that hearings have become less effective as drivers of policy and political agendas. According to former Republican senator Tom Coburn, who has lamented the falling number of hearings, this trend reflects a loss of interest in oversight. As Coburn put it, "Long-term trends show a sharp decline in congressional oversight....The problem, however, has not been a lack of funds to get it done. Over the last decade, the House and Senate budgets have nearly doubled in size and increased to a level that is more than $1 billion higher."
Another reason why hearings have lost their effectiveness is structural: Committee chairs now have less power than they once did. Chairmanships were once conferred strictly by seniority, but now the party leadership can and does weigh in. In addition, the GOP has term limits on committee chairmanships, further diminishing the power that chairmen have over individual members. The leadership can exert influence on individual members because it helps maintain member ties to the fundraising spigot, but leadership does not generally work to micro-manage hearings the way a heavy-handed committee chair once could. The days in which a powerful chairman such as Dan Rostenkowski or John Dingell could tailor the questions and statements of each committee member in a particular hearing are long gone, making it much harder to script an entire hearing to produce an intended message.
Beyond the weakened role of the chairs, it appears that the very fact of the GOP's control of Congress has contributed to the decline in interest in hearings. One reason may be that the media give Democrats better coverage than Republicans, whose efforts tend to be viewed more skeptically. The New York Times coverage of Waxman's tobacco hearings, for instance, seemed to admire Waxman for taking on Big Tobacco, whereas Republican hearings tend to be treated as partisan fishing expeditions. Republican congressmen in general have trouble building good relationships with the press, as they understandably view the overwhelmingly liberal Washington press corps as out to get them.
The left-leaning members of the media are not the only ones at fault, however; Republicans must shoulder their share of the blame, too. GOP congressmen are more apt to see corporate executives as allies and are loath to cast them as the villains the press want to see in hearings. This hesitance, combined with an uncooperative press, has led to a GOP that seems less interested in running hearings. A House Republican aide told me in 2011 that the leadership announced to the incoming GOP conference that they would be taking steps to promote member attendance at hearings. Veteran GOP members bristled at the thought of being forced to go to hearings; incoming freshman, however, were surprised they had to be asked, since they assumed it was part of their job.
The new members were right, of course, and Republicans' absence at hearings, even when the GOP has a majority, has real consequences. If members attend, the majority party has tremendous advantages in hearings: control of the gavel, the right to call more witnesses, and, since they have more committee members, the chance to ask more questions. If the majority party's members do not attend, however, they lose some of those advantages. In particular, the minority party's members get to ambush witnesses for the majority with hostile questions. As anyone who has seen a congressional hearing can attest, the questioners have all of the power in these interactions and can harangue witnesses without giving them an opportunity to respond. Even when witnesses do get the chance to respond, members always have the right to the last word. Having informed, engaged GOP members sit through hearings can "protect" Republican witnesses from uncomfortable situations. They cannot, of course, control the questions of others, but they can give their own witnesses — who are, after all, invited guests — the opportunity to respond to questions or allegations that may have been issued from the other side.
Beyond the neglect of basic blocking and tackling in hearings, GOP congressman often fall victim to self-inflicted wounds. The most famous example of this may be Indiana congressman Dan Burton, who headed the Republican effort to investigate the death of Bill Clinton aide Vince Foster. As part of his investigation, he claimed to have fired a gun at a "head-like object" — reportedly a melon or a pumpkin — to show that Foster could not have committed suicide. The stunt failed to prove any such thing, and Burton was widely ridiculed.
More recently, Republican congressman Darrell Issa ceded the high ground in a hearing on possible abuses of power by the Internal Revenue Service. This topic is made to order for Republicans, as it gives them a chance to score points against a universally disliked agency. In addition, the reported activities of the IRS's Cincinnati office appeared to demonstrate a political bias, compounding the perception that the IRS did its unpleasant duty in a prejudiced and unfair way. It seemed like a perfect messaging opportunity, nearly impossible for Republicans to bungle, and yet somehow they managed. When Elijah Cummings, the Committee's ranking member, tried to ask a question that was in reality more of a statement, Committee chairman Darrell Issa got frustrated with Cummings and cut off his microphone. Making matters worse, he made a hand-to-throat gesture to indicate his desire to prevent Cummings from speaking. In an instant, the hearing went from just another under-reported GOP committee hearing to front page news. Democrats used the opportunity to inveigh against Republican partisanship and heavy-handedness, and Cummings got a moment in the spotlight. Even Cummings's mother recognized the favor Issa had done for her son. According to Cummings, "My 88-year-old former-sharecropper mother said, 'don't be mad at that man. That man done made you famous.'"
Another frequent problem involves personalizing interactions with a witness. Congressman Louie Gohmert, vice-chairman of the House Judiciary Committee's subcommittee on investigations, fell into this trap with Attorney General Eric Holder. In one notable exchange, things became rather heated between Gohmert and Holder, and Gohmert accused Holder of having "cast aspersions on my asperagus." Gohmert's explanation for the bizarre comment was that it was a trick he used to employ as a prosecutor to cool things down when they got too heated. Regardless of his reasoning, the press, not to mention comics like Stephen Colbert, had a field day.
On another occasion, Gohmert made the mistake of suggesting that Holder took lightly the fact that the House had held him in contempt. "I realize that contempt is not a big deal to our attorney general," Gohmert said. Holder pounced on this, saying, "You don't want to go there, buddy." When Gohmert asked for clarification, Holder theatrically pointed at Gohmert and said, "You should not assume that that is not a big deal to me. I think it was inappropriate. I think it was unjust. But never think that that was not a big deal to me. Don't ever think that." Once again, Holder won the exchange on the nightly news.
There is at least some indication that Holder recognized that he was an actor playing a role in these exchanges. MSNBC's Melissa Harris-Perry told Holder that she called him "the Duck" for his ability to appear placid on the surface during contentious exchanges with Congress. Holder was flattered by the compliment, and added that "I may have been cool in congressional hearings on the outside, but I was pissed off a lot of the time too, you know. It was a question of trying to rein in those feelings and make sure that, on the outside, I was cool."
This insight into Holder's approach demonstrates the importance of remembering that, in a congressional hearing, the actors on both sides of the gavel have roles to play. And those who play the roles more effectively will often emerge victorious.
TAKE BACK THE HEARING
There is not much that can be done about media bias, or the fact that networks no longer run coverage of hearings, or that some once-fresh theatrical tricks now seem tired. But there are things Republicans can do in the short term that would help them put congressional hearings to better, more constructive uses.
The first is to show up. Members may not like it, but using one's majority status to maintain the edge in hearings is an important component of being in the majority. Leadership cannot require that members attend their hearings, but they can strongly encourage it, with all of the inducements that the leadership can offer.
Republicans could also benefit from being more strategic in their use of hearings. True, most oversight work takes place in reaction to malfeasance or incompetence by executive-branch officials, but there are many other kinds of hearings. Republicans can and should use series of hearings to build cases over a prolonged period. Hearings can highlight solid Republican issues, such as the economic costs of our overly complex tax code or the dangers of our long-term debt. In addition, useful hearings do not have to be partisan in nature. A bipartisan review of the state of our military's preparedness, for example, could bring both Democrats and Republicans together on an issue of grave importance to the nation. Such a conversation could show that Republicans are using hearings to be serious about governing and not merely to score political points.
As for the media, little can be done to change the fact that reporters lean left. But that fact does not mean that Republicans can't use the media more effectively than they do. Social media has given politicians many more avenues for reaching voters directly. The rise of conservative media outlets enables politicians to get their messages out to more receptive reporters. And even with the traditional media, there are ways for Republicans to improve their coverage. One is outreach. Members who work harder on building relationships with the press get better coverage than those who do not. In addition, Republicans, not without reason, often treat the press as the enemy. But one can be wary of the press without treating individual journalists as villains.
There are, of course, limitations to how far a smile will take you. Many members are perfectly pleasant to the press and still get eviscerated in their media coverage. Journalists, for the most part, do not see themselves as ideological. They see themselves as trying to provide good copy. Recognizing this, Republicans can do a better job of sharing scoops from hearings with reporters in advance. All reporters like to have first crack at surprising or new information. Republicans should manage their hearings to provide such information and be strategic about sharing any scoops with the right reporters at the right times.
Hearings are a powerful weapon for Congressional majorities. They give the party in power enormous communications opportunities and can help a party shape a compelling governing agenda. The party without the gavel, in contrast, will nearly always be on defense in hearings run by the other side. At the same time, hearings are also a difficult challenge in today's media environment. Congressional leaders cannot allow chairmen have free rein but instead must demand a strategic purpose — as well as competent hearing management — in the hearings that do take place.
It's still too soon to tell if Republicans will use hearings effectively now that they control both houses of Congress. But it is not too soon to see that there is a compelling need for them to do so.