Fox seizes on GOP charges that Gore violated witness rules, ignoring chairs' discretion to waive or ignore them

On the March 21 edition of Fox News' America's Newsroom, anchors Megyn Kelly and Bill Hemmer uncritically reported Republican assertions that former Vice President Al Gore committed a "clear violation" the rules of both the House Committee on Energy and Commerce and the Senate Environment and Public Works (EPW) Committee when he did not submit a statement at least 48 hours in advance of his March 21 testimony before those committees on the subject of global warming. In the case of the House, Kelly, in her report, did not note that Rep. Joe Barton's (R-TX) assertion of a "clear violation" of the [committee's] rules" is false, as Energy and Commerce committee chairman Rep. John Dingell (D-MI) pointed out, because the committee's rules give the chair unfettered authority to waive the requirement. In the case of the Senate, Hemmer reported Sen. James Inhofe's (R-OK) similar claim that Gore violated EPW committee rules but did not note that under those rules -- which are the same as those in effect when Republicans controlled the Senate -- the committee chairwoman, Sen. Barbara Boxer (D-CA), is given the discretion to allow or preclude testimony from a witness whose statement is not submitted within the 48-hour time period provided in the rules.

Fox's coverage followed a Drudge Report announcement posted on March 20 between 8:26 and 8:45 p.m. ET, which read "Capitol Hill Boils Over: Senate GOP Accuses Gore of Violating Committee Rules By Demanding Special Treatment... ." Between 10:29 and 10:32 a.m. ET on March 21, the link text was changed to "Senate GOP Accuses Gore of Violating Committee Rules... ." Both items linked to a March 20 press release issued by Inhofe, the committee's ranking member, stating that Gore, "despite being given major preferential treatment, has violated the Senate Environment & Public Works Committee's (EPW) hearing rules." A March 21 update stated that "Gore's testimony was given to Committee members ... mere hours before his scheduled Senate appearance."

Kelly, airing Barton's assertion that Gore's late submission of his testimony was a "clear violation of the rules," described the matter as the "latest in a series of procedural irregularities" surrounding Gore's testimony. She noted that "[n]ormally, witnesses who testify before Congress are required to give their testimony in writing so that the lawmakers have it to respond to 48 hours in advance of the hearing," and, apparently relying on Inhofe's press release, stated that Gore "asked for special dispensation, if you will, and was granted that to submit his testimony 24 hours in advance of the hearing. As of 8 p.m. last night, they [the committee] didn't have it. In the morning," Kelly continued, "they did have it, so at the last minute he forked it over."

But, as Dingell began to point out after Barton asserted that Gore committed a "clear violation" of the committee's rules, under those rules, all requirements regarding advanced delivery of a witness's written statement -- including the requirement that it be given to the committee at least "two working days in advance of [the witness's] appearance" -- may be waived entirely by the committee's chairman. From Rule 4(b) of the House Committee on Energy and Commerce rules for the 109th Congress, when the Republicans were in the majority, which were adopted by the committee in their entirety for the 110th Congress:

(b)(1) Requirements for Testimony. Each witness who is to appear before the Committee or a subcommittee shall file with the clerk of the Committee, at least two working days in advance of his or her appearance, sufficient copies, as determined by the chairman of the Committee or a subcommittee, of a written statement of his or her proposed testimony to provide to members and staff of the Committee or subcommittee, the news media, and the general public. Each witness shall, to the greatest extent practicable, also provide a copy of such written testimony in an electronic format prescribed by the chairman. Each witness shall limit his or her oral presentation to a brief summary of the argument. The chairman of the Committee or of a subcommittee, or the presiding member, may waive the requirements of this paragraph or any part thereof.

Likewise, during an interview with Boxer, Hemmer read Inhofe's press release on air, stating, "[a]s of 8 o'clock Eastern time last night, Al Gore's testimony has not been received ... a clear violation of rules." But Hemmer did not mention that Boxer, the committee chairwoman, has complete discretion regarding whether or not to preclude Gore's testimony as a result. From the Senate EPW Committee's Rule 3(b):

(1) A witness who is scheduled to testify at a hearing of the committee or a subcommittee shall file 100 copies of the written testimony at least 48 hours before the hearing. If a witness fails to comply with this requirement, the presiding officer may preclude the witness' testimony. This rule may be waived for field hearings, except for witnesses from the Federal Government.

The current Senate rules do not differ on this point from the committee rules announced on April 26, 2006, by then-committee chairman Inhofe and published in the Congressional Record. During the interview, Boxer stated that she could name at least four Republican witnesses who also did not submit their testimony within the time set out in the rule but who had not been precluded from testifying.

From the March 21 edition of Fox News' America's Newsroom:

HEMMER: All right, America's Newsroom taking you live now to Capitol Hill, where a lot can change in about seven years' time. Al Gore testifying in this hearing room shortly on the issue of global warming, and later today, he brings that same message to the Senate, and at least one senator is unhappy about the Gore visit so far. James Inhofe saying that the former vice president is demanding special treatment. Is that the case? Senator Barbara Boxer, chair of the Environment and Public Works Committee is with me now. Good morning, Senator, welcome back here.

BOXER: How are you, Bill?

HEMMER: I'm doing just fine. James Inhofe said this -- put it on the screen, our viewers can read along with us -- on his blog online. He says, "As of 8 o'clock Eastern time last night, Al Gore's testimony has not been received ... a clear violation of rules. The question looms on Capitol Hill: Is Gore delaying the submission until the very last moment because he fears it would give members of the committee time to scrutinize it for accuracy? Stay tuned." Do you have his testimony yet, Senator?

BOXER: We do. And Senator Inhofe has it as well. And here's the interesting thing: it's just another diversion from the issue, which is what are we going to do about global warming? Instead my ranking member, who is my friend, makes a fuss over something that the Republican witnesses do all of the time. We have at least four examples of this. The fact is that the vice president isn't going to be reading much of anything. He's going to be speaking to us right from the heart and the head because he knows this issue better than anyone --

HEMMER: I'm hearing differently, Senator. I'm hearing that everybody hands their stuff in on time. Is that not the case?

BOXER: Well, I have the names of four witnesses -- if you want to give me -- I can come back after the break and read it right to you, the four Republican witnesses who never did --

HEMMER: OK, all right, let's get to --

BOXER: -- pay any attention to that rule. But isn't it a silly thing to debate? Because Al Gore in his testimony -- he only submitted about five minutes of testimony because he doesn't need to read a statement as others do on this subject, he knows it so well --

HEMMER: All right, here is the balancing act in all this debate here. There are extremists on both sides, and likely the truth is somewhere in the middle.

[...]

KELLY: And this is a Fox News alert for you right now. This is from our own Major Garrett, who is our congressional correspondent down in Washington. Democratic committee staff are advising that Al Gore is not yet at this hearing. He was supposed to be there at 9:30. He will not be there until 10 a.m., they say. The reason: Gore has refused to listen to the Republican opening statements skeptical of his climate change thesis.

The committee Democrats running this hearing waived their opening statements but the Republicans did not and, according to our own Major Garrett, Al Gore decided not to sit at the witness table and not to listen to the Republican skepticism about the testimony Al Gore intends to offer this morning. Take a listen.

[begin live feed]

BARTON: -- required to have their testimony in writing for 48 hours in advance. Now, Mr. Gore is not only a former vice president, he is a former member of the House, a former member of this committee, and I believe, a former subcommittee chairman of this committee. We on the minority received his written testimony at about 7 a.m. this morning. It apparently got to the majority offices at about 1 a.m. this morning. How are we supposed to prepare questions for our esteemed witness when we're basically given the testimony two hours before he shows up? And that is a clear violation of the rules.

DINGELL: Well, if the gentleman would permit, the chair will respond. First of all, it is not a violation because this is a matter which is addressed, again, in the discretion of the chair, and the chair has made the decision that we would not --

[end live feed]

KELLY: And as you could hear them discussing, this is just the latest in a series of procedural irregularities that have gone down in this House hearing for Al Gore. Normally, witnesses who testify before Congress are required to give their testimony in writing so that the lawmakers have it to respond to 48 hours in advance of the hearing.

He asked for special dispensation, if you will, and was granted that to submit his testimony 24 hours in advance of the hearing. As of 8 p.m. last night, they didn't have it. This morning they said they did have it, so at the last minute he forked it over and now we learn that he has refused to even show up and listen --

HEMMER: It's getting good already, isn't it?

KELLY: -- to the Republican counterpoints to those he means to offer before this very committee, Bill.

HEMMER: I'll tell you, when we were talking about this yesterday in our meeting in the afternoon, we were captivated, frankly, by the appearance of Al Gore, what he had to say, and also what the minority members on this committee would counter with him.

He has been all over the country and all over the world, for that matter, with the movie An Inconvenient Truth and all the hubaloo [sic] surrounding the Oscars, and we expected him to appear here today so that we could get the give-and-take because that will be the most interesting aspect of this testimony.

KELLY: For the first time.

HEMMER: That's right. But he's not even in the room yet, and when he shows up, we'll track the camera down there and let you know when he walks in. We thought it was going to be a good hearing. I think it just got that much better.

KELLY: It certainly got that much curiouser and curiouser.