Question: What does it take exactly to determine a judgement of proceedings and votes by either house to require secrecy?

Why, context, etc.

Supporting Resources

Article I

Section 5

Clause 3

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

  • Since there is legitimate fear of politician lives and their families lives, it would seem this is a common sense thing to use regardless of who is the commander in chief at the time of impeachment so as per recent events, I'm interested in knowing about the technicalities of this clause I suppose. Seems like a no brainer to me but perhaps I'm misinterpreting the clause. Experts that can help clarify is what I'm seeking. Jan 18 '21 at 20:53
  • Currently the answers gotten are good and clarifying but seems to be a lot of could/would/should/normally/typically, etc. type of language too in some of the clarification. To keep a matter for the proceeding and the vote to remain secret, is that possible and what does that take if that is the case is what I'm after I guess. Sounds like less than 20% of the correlated House of Congress to disagree is all it takes. Jan 18 '21 at 22:52
  • If you have members of your party say you feel your life is in danger if you vote, then your fellow party politicians are not likely to help their co-politician feel safe regarding a matter to vote on. You'd think those of their same party would help their follow members like brothers and sisters. If it's a matter of feeling safe for you and your families lives is not important then nothing will ever be. I'd be telling Mitch and other bosses in the eye and in their face to get everyone to help me feel safe to do my job, you are my boss, protect your employees. Seems like a no-brainer to me. Jan 18 '21 at 22:55

The reference to one fifth does not refer to secrecy, as there is a semi-colon between those two parts.

Rather, the one fifth refers to the yeas and nays. This means that, if one fifth of members want to have recorded who voted yes and who voted no for a particular question, then it shall be recorded onto the Journal.

The reason it's not done automatically is because it simply takes a lot of time, and if there is near-unanimous consensus across members, then that time could be better spent doing something else.

  • Okay, thanks for clarifying that. What determines the secrecy though is the main thing I'm after. It seems they can still publish for historical and public records later on once the legitimate fear fades away. It'd be like declassifying classified documents years down the road. The journal is still there. Then there is that example of the voice votes as mentioned too that is interesting to me? Jan 18 '21 at 20:59
  • Also, I don't get the automatic word because I never mentioned about it being that way always or by default, just what it take to make be judged and determined be done in secrecy. Also, what does "then that time could be better spent doing something else" refer to exactly? The answer below suggests if the 1/5 or 20% agree then it can be but that is not unanimous consensus though. Jan 18 '21 at 22:48

The House can determine which matters require secrecy. If necessary by a vote by simple majority (same as other procedural votes).

The "one fifth" rule is for whether the details of the vote are recorded. For many procedural matters a voice vote is held. The results of many of these votes are either unanimity or a very small dissenting minority. The details of who voted in these motions isn't recorded. These aren't usually matters of great importance. And just because the yeas and nays aren't listed doesn't mean the vote was done in secret. However if there isn't nearly unanimity (in particular if 1/5 of those present object) then a recorded vote takes place.

What can happen is described by Rule XVII of the House Rules:

Secret sessions When confidential communications are received from the President, or when the Speaker or a Member, Delegate, or Resident Commissioner informs the House that such individual has communications that such individual believes ought to be kept secret for the present, the House shall be cleared of all persons except the Members, Delegates, Resident Commissioner, and officers of the House for the reading of such communications, and debates and proceedings thereon, unless otherwise ordered by the House.

A member states that he or she has communications that should be secret, the C-span cameras are turned off, the galleries cleared and the House hears the communication in secret, and may debate discuss the matter in secret. It is very rarely used. It is called a "Closed Session" The most recent closed session was held on 13 March 2008 (for under an hour) to discuss classified details of the Foreign Intelligence Surveillance Program during debate on the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008.(see https://en.wikipedia.org/wiki/Closed_sessions_of_the_United_States_House_of_Representatives)

It is perhaps worth noting that in a Senate trial, when the senators wish to deliberate as a jury, is done in closed session.

  • I appreciate this... So for "These aren't usually matters of great importance" doesn't mean it cannot be though? Also "doesn't mean the vote was done in secret" doesn't mean it cannot be though? Lastly, seriously it merely takes "A member stating that he or she has communications that should be secret" and that member could then go on to talk about keeping everything including a vote on the matter the member states in secret as well, and that could happen? Jan 18 '21 at 22:15
  • 1. It's hard to describe a "matter of great importance" that can't find 20% of members who hold differing views. 2. If the House is meeting in closed session, there would be procedural votes that would be just voice votes. Eg. the vote to end the closed session could be an example of something that is a secret voice vote. Finally the house can vote on a point of order that the matter is not secret. So an individual member can't just decide to do everything in closed session. It is a rare procedure. See the wiki: "6 times since 1790" Like many things, it assumes rationality.
    – James K
    Jan 18 '21 at 22:32

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