Senate Committee Hearings: The "Minority Witness Rule"

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

hen a Senate committee, other than the Appropriations Committee, holds a hearing, the
minority party members of the panel have the right to call witnesses of their choosing
to testify during at least one day of that hearing. Paragraph 4(d) of Senate Rule W

XXVI—known as the “minority witness rule”—states:
^W^h^en^e^v^{er any}^h^earing^is^con^d^u^c^{ted b}^y^{a co}^m^mⁱ^ttee^(ex^{cept th}^e^C^o^m^mⁱ^t^t^{ee on}
^Ap^p^r^o^p^rⁱ^a^tⁱ^oⁿ^s⁾^u^p^oⁿ^aⁿ^y^m^e^a^s^u^r^e^o^r^m^a^t^t^e^r^,^t^h^e^mⁱⁿ^o^rⁱ^t^y^oⁿ^th^e^co^m^m^ittee^s^h^all^b^e^en^titled^,
^u^pon^requ^e^s^t^m^a^{de b}^y^a^m^a^j^o^ri^t^y^{of t}^h^e^mⁱⁿ^o^ri^t^y^m^e^m^b^er^s^t^o^t^h^{e c}^h^ai^r^m^aⁿ^bef^o^{re t}^h^e
^com^p^letⁱ^on^o^f^s^u^c^h^h^eariⁿ^g^,^{to call w}ⁱ^tⁿ^es^s^e^s^s^e^{lected b}^y^t^h^e^mⁱⁿ^o^rit^y^{to tes}^t^ify^wⁱ^t^h^res^p^ect
^{to th}^e^m^e^a^s^u^r^{e or}^m^a^{tter du}^ri^ng^{at leas}^{t on}^{e da}^y^o^f^h^eariⁿ^g^t^h^ereon^.
If the minority’s request to call witnesses comes after a hearing has begun, it will necessitate the
continuation of the hearing on an additional day to accommodate minority witnesses. For more
information on legislative process, see http://www.crs.gov/products/guides/guidehome.shtml.
The minority witness rule was contained in Section 114(a) of the Legislative Reorganization Act ¹
of 1970 and was subsequently made a part of the standing rules of the Senate. The committee
report accompanying the 1970 act said of the creation of a minority witness rule:
^B^y^cus^t^o^m^,^co^m^mⁱ^t^t^ees^ordin^a^ril^y^h^oⁿ^o^{r requ}^e^s^ts^f^r^o^m^t^h^eir^mⁱⁿ^o^rit^y^part^y^m^e^m^b^ers^{to ca}^ll
^cer^tain^wⁱ^tⁿ^esse^{s. [}^T^hⁱ^{s sectio}ⁿ^]^wⁱ^ll^m^a^k^e^thⁱ^s^a^m^a^tter^o^f^rⁱ^g^h^t^{. I}^t^p^r^o^v^id^{es th}^{at d}^u^rⁱⁿ^g^aⁿ^y
^h^earⁱⁿ^g^o^f^{a co}^m^m^ittee,^th^o^s^e^m^e^m^b^er^s^sh^al^{l b}^e^eⁿ^titled^,^d^u^rⁱⁿ^g^at^leas^{t o}ⁿ^e^d^a^y^o^f^t^h^e
^h^earⁱⁿ^g^,^to^{call as}^wⁱ^tⁿ^es^{ses p}^e^r^s^oⁿ^{s th}^e^y^{select. W}^e^d^oⁿ^’^t^lo^o^k^u^p^oⁿ^th^{is as an}^a^u^th^o^r^izatioⁿ²
^f^o^{r del}^a^yⁱ^ng^t^actⁱ^c^s^bu^t^rat^h^er^as^g^{ood l}^e^gⁱ^s^l^atⁱ^v^{e pract}ⁱ^ce.
Rule XXVI is rarely formally invoked, however. In practice, the rule has largely served as a
“backstop,” which gives the minority party members of Senate committees procedural recourse
should the majority refuse to invite witnesses they request. In the vast majority of hearings, the
majority does invite minority witnesses after consultation and negotiation with minority Senators
and staff.
In comparison to the House of Representatives—which has a similar minority witness rule—the
rules and precedents of the Senate give Senators far more individual influence over the
scheduling and consideration of legislation. That, in conjunction with the tradition of comity that
generally governs the chamber, means that Senators have rarely found it necessary to invoke Rule
XXVI to have their views represented. Occasionally, however, a majority of the minority party ³
members have invoked Rule XXVI to have their witnesses heard from at a hearing.
While paragraph 4(d) of Senate Rule XXVI gives the minority the right to witnesses of their
choosing during one hearing day, the committee majority maintains control over the scheduling
and logistics of that hearing. In addition, ordinary Senate and committee rules governing hearings
apply equally to any hearing in which minority witnesses testify.

¹^P^.^L^.^91-⁵¹^0,⁸⁴^Sta^t^.¹¹⁴⁰^.
²^{U.S. C}^ong^re^{ss, House}^Com^m^itte^e^{on R}^u^le^s,^Le^gis^l^ativ^e^Re^or^ga^niz^a^tio^{n Ac}^t^of¹⁹⁷⁰^,^rep^o^rt^t^o^acco^m^p^an^y^H.^R.¹⁷⁶⁵⁴^,
⁹¹^st^Co^ng^.,²^nd^s^e^s^s^{., H}^.^R^e^{pt. 9}¹^-¹²¹⁵⁽^W^a^s^hing^ton:^G^P^O^,¹⁹⁷⁰⁾^,^p.^6.
³^Se^e^,^f^o^r^e^x^am^ple^:^U^.^{S. C}^ong^r^e^s^s^,^Se^na^te^{, C}^o^m^m^itte^e^{on L}^a^bor^aⁿ^d^H^u^m^a^{n R}^e^s^our^c^e^s^,^AI^D^S^Ed^uc^ati^on^an^{d C}^a^r^e^,
^h^earⁱⁿ^g,¹⁰¹^st^Co^ng^.,¹^st^s^e^s^s^{., Fe}^{b. 7}^,¹⁹⁸⁹⁽^W^a^s^hing^to^{n: G}^P^O^,¹⁹⁸⁷⁾^.

It is up to the chairman of the committee to set the day and location of the requested testimony
under a reasonable schedule. While the committee majority must invite the witnesses chosen by
the minority party, they are not precluded from inviting additional witnesses of their own
choosing.
The committee chairman maintains control over the logistics of how the minority witnesses will
testify (i.e., individually, in panels, etc.) and also determines whether or not to administer the oath
to the witnesses in keeping with its normal practices.
As is the case with other witnesses, a minority witness may decline an invitation to testify before
a Senate committee or subcommittee. The committee can elect to issue a subpoena for their
testimony under the normal procedures of the Senate and the committee, but is not required to do
so.
The scope of testimony under the minority witness rule is generally limited by the subject of the
hearing. A committee is not required to permit testimony by minority witnesses or questioning by
Senators that strays from the announced subject of the hearing. If the committee chooses, of
course, it may broaden the scope of its inquiry or permit non-relevant debate as it sees fit.
Notwithstanding the rights afforded the minority party under the minority witness rule, a
committee majority always retains the right, applying a “reasonableness test,” to determine the
relevance of testimony and the appropriate length of a Rule XXVI minority day of witnesses.
^Chrⁱ^sto^p^h^e^r^M^.^Da^vi^s
^An^al^y^s^{t on}^t^h^e^C^ong^res^s^aⁿ^{d L}^e^gⁱ^s^l^at^iv^{e P}^r^oces^s
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