The answer from Rick Smith to this question is incorrect in multiple material respects.
Short Answer
Each house of Congress has an absolute, non-justiciable legal right to keep the votes of its members secret for any reason it deems fit, and procedural rules to do that.
But, the House, in particular, has only done this six times since 1825 (it did so frequently through the War of 1812). None of those times (since 1825) was out of concern for the personal safety of the members. Most often it is done with regard to national security and foreign affairs matters.
The Senate also can and does have secret proceedings and votes, which are about ten times more common there since the 1920s, and were very common before then. But, again, this has never been for the personal safety of the Senators in modern times.
A request to hold a secret ballot for personal safety reasons (or to withhold the tally of a recorded vote from the public) would almost surely be rejected as a practical matter, even though such a request would be legal and would be up to a vote of a majority of members present at the time.
Long Answer
The Relevant Laws and Rules
Under what circumstances, if any, does the House of Representatives
have the authority or mechanisms to conduct votes in secrecy?
What procedures or rules would need to be invoked or followed to
ensure a vote is conducted in secrecy?
Article I, Section 5 of the U.S. Constitution states in the pertinent parts:
Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members, and a Majority of each shall
constitute a Quorum to do Business; but a smaller Number may adjourn
from day to day, and may be authorized to compel the Attendance of
absent Members, in such Manner, and under such Penalties as each House
may provide.
Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two
thirds, expel a Member.
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.
So, the members voting on a particular measure don't have to be recorded unless a 20% minority demands it and even then, this can be kept secret.
One commentary on this provision notes that:
The secrecy provision applies to whether the House or the Senate will
have its daily proceedings accessible to the public. Both history and
judicial opinion have determined that each house possesses complete
discretion over what proceedings shall be secret. Field v. Clark
(1892). For the first twenty years of the country, secret sessions
were frequent. Beginning with the War of 1812, however, both houses
have kept most of their proceedings open to the public. The Senate is
most likely to hold secret sessions, but over the last seventy-five
years, it has done so only during debates over impeachment, classified
information, and national defense. The Senate did keep its committee
sessions closed, however, until the 1970s.
The U.S. Supreme Court in Field v. Clark held (as explained in the Official Syllabus of the case) that:
The signing by the Speaker of the House of Representatives and by the
President of the Senate, in open session, of an enrolled bill is an
official attestation by the two Houses of such bill as one that has
passed Congress, and when the bill thus attested receives the approval
of the President and is deposited in the Department of State according
to law, its authentication as a bill that has passed Congress is
complete and unimpeachable.
It is not competent to show from the journals of either House of
Congress that an act so authenticated, approved and deposited, did not
pass in the precise form in which it was signed by the presiding
officers of the two Houses and approved by the President.
As long as the presiding officer of a House says that a particular bill document was passed by that House, this is conclusively true. Neither house is under any obligation to report to the public how particular members voted on it.
Article I, Section 7 of the U.S. Constitution also contains the following language related to this issue (requiring certain kinds of voting to overturn a Presidential veto):
Every Bill which shall have passed the House of Representatives and
the Senate, shall, before it become a Law, be presented to the
President of the United States: If he approve he shall sign it, but if
not he shall return it, with his Objections to that House in which it
shall have originated, who shall enter the Objections at large on
their Journal, and proceed to reconsider it. If after such
Reconsideration two thirds of that House shall agree to pass the Bill,
it shall be sent, together with the Objections, to the other House, by
which it shall likewise be reconsidered, and if approved by two thirds
of that House, it shall become a Law. But in all such Cases the Votes
of both Houses shall be determined by yeas and Nays, and the Names of
the Persons voting for and against the Bill shall be entered on the
Journal of each House respectively. If any Bill shall not be returned
by the President within ten Days (Sundays excepted) after it shall
have been presented to him, the Same shall be a Law, in like Manner as
if he had signed it, unless the Congress by their Adjournment prevent
its Return, in which Case it shall not be a Law.
A Congressional Research Service Report last updated December 30, 2014 discusses the matter and the historical practice in greater detail. It notes that (footnotes omitted):
Authority for the House and Senate to hold secret sessions appears in
Article I, Section 5, of the Constitution: “Each House may determine
the Rules of its Proceedings.... 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.... ”
Both chambers have implemented these constitutional provisions through
rules and precedents.
In the House, Rule XVII, clause 9 governs secret sessions. A secret
session may be held when the House has received confidential
communications from the President or when a Member informs the House
that the Member has communications that should be kept secret. A
secret session may occur pursuant to a special rule or by a motion to
resolve into a secret session made in the House. The House has also
agreed on one occasion to a unanimous consent request authorizing the
chair to resolve the House into secret session pursuant to this rule.
A motion to resolve into secret session is in order in the House; it
is not in order in the Committee of the Whole. A Member who offers
such a motion announces the possession of confidential information and
moves that the House go into a secret session. The motion is not
debatable, and no point of order is available to require the
communication at issue to be disclosed before the vote. If the motion
is agreed to by a simple majority (a quorum being present), the
chamber and galleries are cleared. When the only persons present are
Members, officials allowed under Rule XVII, clause 9, and staff
designated by the Speaker as essential to the proceedings, the chamber
doors are closed, and the House begins the secret session. The Member
making the motion is then recognized under the hour rule for debate.
In addition, under Rule X, clause 11, paragraphs (g)(2)(D) through
(g)(2)(G), the House Select Committee on Intelligence may move that
the House hold a secret session to determine whether classified
information held by the committee should be made public. This
procedure is invoked only if the committee desires such a disclosure
and the President personally objects to it.
In the Senate, any Senator may make a motion that the Senate go into
closed session, and, if seconded by another Senator, the Senate will
immediately proceed into a secret session. Under Senate Rule XXI, the
presiding officer exercises no discretion about going into secret
session if the motion is made and seconded. The motion is not
debatable. A Senator may interrupt another Senator to make the motion
and may cause the other Senator to lose the floor. Once in a secret
session, the Senate operates under applicable portions of Senate Rules
XXIX and XXXI. Rule XXIX specifies which of the Senate’s officers and
staff may stay during the closed session and authorizes the presiding
officer to include other staff at his discretion. Rule XXXI requires
Senate business to be transacted in open session, but states that the
Senate by majority vote may determine that a specific treaty,
nomination, or other matter may be considered in secret session. A
motion to return to open session is in order at any time, is not
debatable, and requires a simple majority vote, a quorum being
present. When the Senate is conducting an impeachment trial, it may
hold deliberations behind closed doors. During this time, Senate
standing rules are supplemented by additional rules, called “Rules of
Procedure and Practice in the Senate when Sitting on Impeachment
Trials.”
Confidentiality and Publication Requirements
Members and staff of both houses are prohibited from divulging
information from secret sessions. In the Senate, staff are sworn to
secrecy, whereas in the House, staff must sign an oath not to reveal
what happens in the secret session, unless the House decides to make
its actions public. Violations of secrecy are punishable by the
disciplinary rules of a chamber. A Member may be subject to a variety
of punishments, including loss of seniority, fine, reprimand, censure,
or expulsion. An officer or employee may be fired or subject to other
internal disciplinary actions. The proceedings of a secret session are
not published unless the relevant chamber votes, during the meeting or
at a later time, to release them. Then, those portions released are
printed in the Congressional Record. Under Rule XVII, if the House
decides not to release the transcript of a secret session, the Speaker
refers the proceedings to the appropriate committee(s) for evaluation.
The committees are required to report to the House on their ultimate
disposition of the transcript. If a committee decides not to release
the transcript, it becomes part of the committee’s noncurrent records
(pursuant to House Rule VII, clause 3) and is transferred to the Clerk
of the House for transmittal to the Archivist of the United States at
the National Archives and Records Administration. Transcripts may be
made available to the public after 30 years unless the Clerk of the
House determines that such availability “would be detrimental to the
public interest or inconsistent with the rights and privileges of the
House” (Rule VII, clauses 3 and 4). If the Senate does not approve
release of a secret session transcript, it is stored in the Office of
Senate Security and ultimately sent to the National Archives and
Records Administration. The proceedings remain sealed until the Senate
votes to remove the injunction of secrecy.
Actual Practice
Can members express concerns about their safety as a valid reason for requesting a secret vote, and how is such a request typically
evaluated or approved?
Are there historical precedents or instances where secret votes have been conducted in the House of Representatives due to concerns
about members' safety, and if so, what were the outcomes?
This portion of this answer relies heavily on the Congressional Research Service report from 2014 linked above.
Members can express concerns about anything they want as a reason for requesting a secret vote, but if 20% of the members present request it, their vote will be recorded in the journal of the house in question which may or may not be kept secret in a separate decision.
As a practical matter, such a request would be rejected summarily and has never been approved for that reason, at least since the War of 1812 ended, when the safety concern was that invading British soldiers (who burned down the White House in that war) would use the information against members of Congress.
There is no time after the War of 1812, of which I am aware, where either house of Congress has made its proceedings secret out of concern for the safety of its members. But each house of Congress has essentially plenary discretion to do so if it wishes to do so.
A request for a secret vote due to safety concerns would be contrary to the ethos of the House, and would probably be viewed with contempt and derision by fellow members of Congress, particularly in the House.
Normally, secrecy is only invoked for national security and foreign policy matters, and for impeachment proceedings in the U.S. Senate.
There have been six secret sessions of the House since 1825, and votes were taken in some of them. There were also many secret sessions of the House until the end of the War of 1812.
There have been far more secret sessions of the Senate:
The Senate met in secret until 1794, its first rules reflecting a
belief that the body’s various roles, including providing advice and
consent to the executive branch, compelled it to act behind closed
doors. Although legislative sessions were generally open after 1795,
the Senate’s executive sessions (to consider nominations and treaties)
were usually closed until 1929. Since 1929, the Senate has held 57
secret sessions, generally for reasons of national security or for
consideration of impeachment questions.
A full list of modern instances where secrecy has been invoked can be found in the Congressional Research Service report.
Furthermore, many votes in both the House and the Senate are taken by voice vote (and not with unanimous consent), which does not identify who voted for and against a measure before it. But this is never, or almost never, done out of a concern for the safety of the members of Congress who are voting on a measure.
