Their House, Their Rules: New Republican Majority Adopts New Framework For Hearings, Committees, Depositions, And More

• Jurisdiction: United States,Federal
• Law Firm: Jenner & Block
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law
• Author: Emily Loeb, Marcus A.R. Childress and Sam Ungar
• Published date: 12 January 2023

On January 6, 2023, Rep. Kevin McCarthy (R-CA) was elected Speaker of the U.S. House of Representatives on the fifteenth ballot after a week of dramatic negotiations with the right flank of his party, finally inaugurating a new era of Republican control of the chamber. The new majority followed the speakership election by enacting a rules package which will govern how the House does business in 2023 and 2024.

While much of the news coverage of these rules has centered on procedural changes negotiated between Speaker McCarthy and the House Freedom Caucus, many of which transfer substantial power to the conservative bloc, several other important parts of the package provide insight into both the Republican majority's priorities in the 118th Congress and how it will implement those goals. These rules will impact how private companies and individuals will interact with the House for the next two years.

Hearing and Deposition Rules

In keeping with the new majority's desire to phase out pandemic-era procedures, the rules no longer permit witnesses appearing before House committees to participate remotely at their discretion.¹ Instead, the rules prohibit remote witness appearances unless they have been specifically authorized by the committee chair'and even then, they can be permitted only for private, nongovernmental witnesses. Individuals testifying in their capacity as officers of the United States will be required to appear in person in all cases.² Witnesses who have become accustomed to testifying remotely over the last several years will have to prepare to return to Capitol Hill beginning in 2023.

The rules also limit who can attend House committee depositions of nongovernmental witnesses.³ Any witness testifying in a deposition may now be accompanied by no more than two personal, nongovernmental attorneys. While prior House leadership imposed some of these restrictions in the chamber's standing deposition regulations (albeit not in the House rules themselves), the two-attorney limit is new.⁴ Witnesses attempting to bring three or more attorneys to a deposition should be prepared to have excess counsel turned away. These rules do not apply in the more informal, voluntary, interview setting.

The rules also prohibit counsel for federal agencies from attending any House depositions. However, the executive branch has deemed previous House attempts to bar agency counsel from the deposition room to be unconstitutional (including in an opinion from the Office of Legal Counsel at the Department of...