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Monday, March 25, 2013

Secret Sessions of the House and Senate: Authority, Confidentiality, and Frequency

Christopher M. Davis
Analyst on Congress and the Legislative Process

Secret, or closed, sessions of the House and Senate exclude the press and the public. They may be held for matters deemed to require confidentiality and secrecy—such as national security, sensitive communications received from the President, and Senate deliberations during impeachment trials. Although Members usually seek advance agreement for going into secret session, any Member of Congress may request a secret session without notice. When the House or Senate goes into secret session, its chamber and galleries are cleared of everyone except Members and officers and employees specified in the rules or designated by the presiding officer as essential to the session. After the chamber is cleared, its doors are closed.

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, including the types of business to be considered behind closed doors. In addition, House Rule X, clause 11 authorizes the House Permanent Select Committee on Intelligence to bring before the House material to help it determine whether classified material held by the committee should be made public.

In the Senate, under Senate Rule XXI, the presiding officer exercises no discretion about going into secret session. Any Senator may make a motion that the Senate go into closed session, and, if seconded, the Senate will immediately proceed into a secret session. Once in a secret session, the Senate operates under applicable portions of Senate Rules XXIX and XXXI.

The Senate met in secret until 1794, its first rules reflecting a belief that the body’s various special roles, including providing advice and consent to the executive branch, compelled it to conduct its business behind closed doors. Since 1929, when the Senate began debating nominations and treaties (referred to as executive business) in open session, the Senate has held 56 secret sessions, generally for reasons of national security or for consideration of impeachment proceedings.

The House met frequently in secret session through the end of the War of 1812, mainly to receive confidential communications from the President, but occasionally for routine legislative business. Subsequent secret meetings were held in 1825 and in 1830. Since 1830, the House has met behind closed doors four times: in 1979, 1980, 1983, and 2008.

A chamber’s rules apply during a secret session. 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.

Date of Report: March 15, 2013
Number of Pages: 9
Order Number: R42106
Price: $19.95

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