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Images from congressional hearings, such as last fall’s televised view of John Roberts Jr.’s bid to become chief justice, are fading — and not just from memory. The technological capability, or lack thereof, that created those images is also fast disappearing. You may recall seeing Sen. Arlen Specter (R-Pa.) awkwardly holding up a large green display board as he questioned Roberts about the listed cases. Then there was the sight of Sen. Tom Coburn (R-Okla.) working a crossword puzzle as he waited his turn to question Roberts. You won’t see such pictures in the future because the House and Senate are in the process of adopting new technologies that will modernize and sanitize congressional hearings. Since this is considered an “administrative” matter, Congress hasn’t held hearings on its high-tech future. It hasn’t asked your opinion even though you have a stake in the outcome. In part, congressional tampering with hearing technology borrows courtroom techniques that aren’t terribly controversial. Yet, Congress is also adopting Internet capabilities that raise questions about congressional openness, about the power of the new technologies, about the accuracy of the coverage, and about whether Congress is straying too far into what was once considered journalism. A LITTLE COURTROOM TECH In the courtroom newer technologies are being used for the comparatively narrow purposes of speeding up trials and clarifying the issues for judge and jury. Witnesses now can testify remotely and through prerecorded video statements. Documentary evidence can be projected on screens for jurors to see while counsel highlights the important parts. Complex technical matters are simplified with computer simulations. Information from a flight data recorder, for example, can be turned into an animation that lets the jury “see” the aircraft accident. Summations can become multimedia presentations. These kinds of technological advances should transfer well to congressional hearings. Electronic displays could replace poster boards. Hearing rooms could be wired — many already are — with large plasma screens, placed to the sides for the attendees and at the rear for committee members to see. Multimedia presentations could replace merely verbal testimony. Witnesses unable to come to Capitol Hill could be brought in remotely.
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Carried to the extreme, these technologies could significantly change the way Congress gathers information. Imagine a future in which floor-to-ceiling video screens cover the walls of a hearing room. People in the room will feel as if they too are huddling in a war zone with the troops, viewing the Alaska wilderness from atop Mount McKinley with environmentalists, paddling the flooded streets of New Orleans with rescuers, or standing on the moon with astronauts. Instead of woodenly reading their speeches, witnesses will present Hollywood-quality videos. But technology probably won’t be taken to this extreme in Congress, at least not in the foreseeable future. There are human limits. At the moment most witnesses can’t afford to prepare multimedia testimony. And what if wealthy interest groups begin showing up with dazzling videos, thereby increasing their edge over poorer opponents who struggle along with text only? Economic warfare may be (somewhat) acceptable in civil trials, but it isn’t a very democratic way to write laws. Multimedia presentations could also threaten to overwhelm an already harried legislature. Listening to five witnesses drone on might be boring, but five PowerPoint presentations in a row could be considered cruel and unusual punishment, even for politicians. Remote-witness testimony at hearings has already been tried with mixed success. The failures were attributed to inadequate technology. Connections were poor, and transmission delays prevented any real dialogue. But, glitches aside, remote witnesses simply make it more difficult for chairmen to manage their hearings, and the problem worsens geometrically if the hearings are anything but friendly. Thus, as far as the pretested courtroom technologies go, there is nothing to fear in letting Congress experiment. GOING ONLINE The same can’t be said about the Internet technologies being considered. They don’t have well-used counterparts in the courts. More important, because these technologies affect how the American public will see and therefore understand Congress, this business of putting hearings online in a major way should be exposed to public comment — through hearings. How would congressional hearings go online? The basic idea is to place remote-controlled cameras around the hearing room and to feed selected images not only to monitors in the room but also to the press and public via the Internet. Several committees do this already. The idea seems innocuous at first blush. Why shouldn’t voters see their representatives at work? Online hearings appear the democratic thing to do, one more way in which the Internet helps more people get involved. But deeper questions are implicated: Do online hearings put Congress in the journalism business? Is Congress really acting in a spirit of openness in its planning for such hearings? And will the technologies give Congress too much power to shape public opinion? PREENING POLITICIANS The first problem is that, as the idea is currently conceived, politicians, not journalists, will determine what the public sees and does not see from these online feeds. Employees of the House and Senate will man the cameras. Congress wants this coverage to make it look somber and dignified and wise and thoughtful, but what if this objective clashes with reality? The issue has arisen before. In the 1970s, C-SPAN asked to carry proceedings from the House floor. The House agreed but insisted that its employees man the cameras and that the cameras stay focused on the speaker. In 1984 the policy was changed to allow the cameras to pan around the chamber. Then, as a June 15, 1988, New York Times article on then-Rep. Newt Gingrich (R-Ga.) explained: “Mr. Gingrich made . . . the most of a House rule that allows House members to address the chamber after the close of a day’s session. He routinely used this forum to criticize Democrats for their positions on everything from school prayer to Central America. Although the House chamber is virtually deserted during such presentations, the speeches are broadcast on the C-Span cable television network, which carries House proceedings. During the spring of 1984, he assailed a group of Democrats who had written a letter to the Nicaraguan President, Daniel Ortega Saavedra, and threatened at one point to file charges against them for breaching the Neutrality Act. The episode so infuriated the former House Speaker, Thomas P. O’Neill Jr., that he ordered the television cameras to show the empty chamber every few moments.” After the Gingrich flap the House reverted to the policy that its cameras should remain on the person speaking. House and Senate coverage of those hearings now shown on the Internet follows the same policy. Cameras remain focused on the person speaking, whether it is a congressman or a witness. Some argue that this is the only fair way to do it, but the point made by an April 16, 1995, New York Times editorial about coverage of floor debates seems equally applicable to hearings: “Decisions about what Americans can see of Congress in action should not be in the hands of preening politicians.” WHO’S WATCHING? The second problem is that televising all hearings via the Internet will surely influence both the subject matter and the conduct of those hearings. At the moment, few people watch the available feeds. Congressional staffers tune in to see what their bosses are doing, and lobbyists, relieved of the burden of actual attendance, watch online from the comfort of their offices. But the public isn’t watching. Alexa.com, a subsidiary of Amazon, finds that Yahoo is the most popular Web site with an estimated 300,000 visitors per million Internet users. This compares with 89,000 visitors for C-SPAN, 5,410 for all the sites connected with the Senate, 1,005 for the White House sites, and 340 for the House sites. If congressional hearings were television shows, they would be canceled. The danger is that as politicians think about how to make “better” use of the Internet, they will start to react to those low ratings by choosing more enticing subjects for hearings and by taking other steps to attract and keep voters riveted to the screen. One can imagine a rivalry between House and Senate committees, with every panel trying to win more viewers than its counterpart. Even now, Web site operators can know how many people are visiting at any given moment and where they (or, to be precise, their computers) are located. And software can display those locations on a map. Thus, lawmakers with laptops can sit at the dais and watch constituents come and go from the hearing in real time. Elected officials will surely pay at least as much attention to such information as they do to constituent mail. BEWARE THE PICTURE The third problem is that while Internet technology theoretically lets people learn a lot more about Congress and public policy, legislators seem rather more interested in using the technology to control public opinion. For example, although Congress knows how many people are watching the hearings that currently appear online, it doesn’t make such data public. If the committees were serious about openness, they would post the data on their sites in real time, and the voters would know as much as the politicians. But an even better example of how Congress views the Internet is the fact that it continues to limit audio and video coverage of hearings under the Rules and Precedents of the House and the Rules of the Senate. Mere members of the general public can’t walk into a hearing with a video camera, even a miniature one, and begin to send images to the Internet over a wireless connection. The public — e.g., bloggers — might use that technology to offer more useful, interesting, and creative coverage of the hearings than Congress does. And that’s exactly the problem from the politicians’ point of view; they want to produce the video of record. There may be dozens of hearings each day, and C-SPAN can’t monitor and show them all. As Congress grows more adept in its use of this technology, what’s to stop it from aiming the cameras and focusing the shots in ways that make politicians (or certain politicians) look good and certain witnesses look foolish or worse? If someone bothers to attend the hearing in person, she may recognize that the video record is misleading, but how persuasive can she be? Moving pictures present a very powerful version of reality. The established press, of course, continues to cover hearings. And one hopes that even as more hearings are easily available online, reporters won’t just sit in their offices and watch them, but rather will still serve as a check on any attempt at dishonest coverage. But it might be a good idea to build in other safeguards. Before all hearings are shown online, Congress should take the following steps. First, the appropriate committees in the House and Senate should hold hearings on the subject. Not only would this give Congress useful input from the press and public, but it would also let the people know what’s afoot. Second, if Congress is going to actively compete with the press, then it should change its rules to allow anyone to record hearings. The latest video and audio devices are no more disruptive than pencil and paper, and the images are far more powerful. If journalists, lobbyists, lawyers, entrepreneurs, or voters want to come with cameras and wireless transmitters to create their own record, they should be permitted to do so. Images shape public opinion, as politicians well know. If the adoption of new technologies to show the workings of Congress is, as claimed, an effort to be more democratic and open, then lawmakers should give the public a say.

D.C. lawyer James H. Johnston is a frequent contributor to Legal Times .

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