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.Article I, Section 5, Clause 3
The requirement to publish a journal of each House's proceedings occasioned little debate either in the Constitutional Convention or at the ratifying conventions. As Justice Joseph Story commented in his Commentaries on the Constitution of the United States, "The object of the whole clause is to ensure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents."
The provision for secrecy, however, raised more problems. At the Convention, Oliver Ellsworth unsuccessfully moved to have the secrecy option deleted, while at the Virginia ratifying convention, Patrick Henry railed, "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them." Others feared that, even aside from the secrecy provision, the permission to publish a journal "from time to time" would allow either branch of the Congress to conceal its doings. James Madison assured his fellow Virginians that the discretion was only to allow flexibility for the purposes of accuracy and convenience.
For all the concern about secrecy, the official journals of each House, even when published, turn out not to have some of the most valuable information for constituents, namely, debates on the floor of Congress and testimony before congressional committees. For example, the journals contain a list of the bills and resolutions that are introduced, but they do not normally include the text. Rather, the secrecy provision applies to whether a House 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 kept its committee sessions closed, however, until the 1970s.
Although not mandated to do so by the Constitution, Congress initiated the Congressional Record in 1873. It records the debates on the floor of each House nearly verbatim, and can include undelivered remarks and documents. A federal judge has held that the rules allowing a Member of Congress to edit his remarks before publication are unreviewable by the courts. Gregg v. Barrett (1985).
Prior to the Congressional Record, mostly paraphrased remarks were carried in the Annals of Congress (1789–1824), the Abridgement of the Debates of Congress (1789–1850), the Register of the Debates in Congress (1824–1837), and the Congressional Globe (1833–1873). In the very early years, newspaper reporters had free access to the floor to record the statements of the Members. In recent years, radio and television have increased the public's access to Congress's proceedings.
- David F. Forte
- Professor of Law
- Cleveland-Marshall College of Law