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.
The requirement to publish a journal of each house’s proceedings occasioned little debate either in the Constitutional Convention or at the ratifying conventions. The British provenance of the practice was well established. The official House of Lords Journal and House of Commons Journal had begun in the early sixteenth century, but the “Parliament Rolls of Medieval England” stretched back much further into the thirteenth century. Parliament’s journals, however, merely summarized the activities of each house: the recording of bills proposed, votes counted, and bills passed. Only beginning in 1771 was there a concerted effort to have the actual debates set down, which Parliament finally acceded to in 1803.
Although Justice Joseph Story stated in his Commentaries on the Constitution of the United States (1833), “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 Framers in fact did not require the recording of debates but only the basic proceedings as had been the previous British practice. In fact, the official journals of each house contain a list of the bills and resolutions that are introduced, but they do not normally include the text. Instead, in the early decades of the republic, newspaper reporters, either from the galleries or more frequently from the floor, attempted to record or summarize debates for their publications.
Moreover, there was a provision for secrecy in the clause, which stirred much controversy. At the Constitutional 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 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.
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.
In 1834, Joseph Gales and William Seaton began the commercially published Annals of Congress. Its formal title is The Debates and Proceedings in the Congress of the United States. Part of The Annals consisted of reports of the First Congress from Thomas Lloyd, a shorthand writer, who published his record of debates in The Congressional Register, but whose product has been termed “incomplete and unreliable.” Unfortunately, Lloyd was often intoxicated when he took notes, and a later comparison of his notes to what he published in The Congressional Register show “only slight resemblance” between the two. The Annals also compiled selected paraphrased remarks of the Members of Congress in their speeches and debates gathered from newspaper accounts. The project took twenty-two years to complete, and when finished, covered the years from 1789 to 1824. Congress began underwriting the project in 1849. Meanwhile, in 1824, Gales and Seaton attempted to record contemporaneous debates and publish them in the Register of the Debates in Congress, which continued until 1837. Both publications reported Members’ remarks in the third person.
A competitive private publication, The Congressional Globe, began in 1833. Published by Francis Blair and John C. Rives, it did not at first attempt to include debates verbatim, but only summaries. Reportedly, as Gales and Seaton were Whigs, and Blair and Rives Democrats, partisanship marred the objectivity of The Globe’s editing. Later, The Globe attempted to record Members’ statements verbatim and in the first person. The publication continued until 1873, at which time Congress initiated The Congressional Record. The now official Record reports the debates on the floor of each House nearly verbatim, and it can also 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).
Media access continues to be a major method for the political accountability of the House and Senate. In the very early years, as noted, newspaper reporters normally had free access to the floor to report on or record the statements of the Members. In recent years, radio and television have increased the public’s access to Congress’s proceedings.
N. David Bleisch, The Congressional Record and the First Amendment: Accuracy Is the Best Policy, 12 B.C. Envtl. Aff. L. Rev. (1985)
James H. Huston, The Creation of the Constitution: The Integrity of the Documentary Record, 65 TEX. L. REV. 1 (1986)
Richard J. McKinney, An Overview of the Congressional Record and Its Predecessor Publications, in 46 LAW LIBR. LIGHTS 16 (Winter 2002)
Elizabeth Gregory McPherson, Reporting the Debates of Congress, 28 Q. J. OF SPEECH 141 (1942)
Seth Barrett Tillman, The Annals of Congress, the Original Public Meaning of the Succession Clause, and the Problem of Constitutional Memory (2011), at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1524008
Field v. Clark, 143 U.S. 649 (1892)
Gregg v. Barrett, 248 U.S. App. D.C. 347 (1985)