secrecy in Congress

Congress has always been the most open branch of the federal government. Yet Congress has also done much of its work in secret and has expended much energy trying to plug “leaks” of secrets to the media.

The Continental Congress and the Congress under the Articles of Confederation debated entirely in closed session, and the Constitution was also written in secret session. The Constitution did not require Congress to conduct its business in public. It specified only that each house keep a journal of its proceedings “and from time to time publish the same, excepting such parts as may in their judgment require secrecy” (Article 1, Section 5). This was the only mention of secrecy in the Constitution. Because House members would stand for direct election by the people in just two years, however, they wanted their constituents to know what they were doing. The House immediately opened its doors and debated and voted in public session. By contrast, the Senate, elected by state legislatures, met entirely in secret session from 1789 until 1794. Even after the Senate constructed a gallery, it opened its doors only for legislative sessions. Executive sessions, which dealt with treaties and nominations, remained secret until 1929. Similarly, many committees of both the House and Senate met in closed-door executive sessions, especially when “marking up” a bill (making final changes before reporting it from the committee).

Legislative bodies are not designed to keep secrets. For every person or group with a reason to keep a secret, there is usually someone else with a reason to publish it. Members of Congress, staff, and the executive branch have all leaked secret information to provoke some legislative action or public response. Leaking is a mutual act between the person releasing the information and the journalist who receives it and publishes it. Each one benefits by getting the story out. Sometimes, however, no single individual leaks a story, but an enterprising journalist pieces it together by gathering observations from a large number of sources.

Angry reaction to leaks

Having done more of its business in secret, the Senate has often reacted angrily to leaks. In 1811 and 1841 the Senate censured senators accused of releasing secret information. In 1848 and 1871 the Senate held newspaper correspondents prisoner in Capitol committee rooms, in unsuccessful attempts to force them to reveal their sources. In 1892 the Senate fired its executive clerk when he was suspected of being the source of frequent leaks from executive sessions. But the next time that the Senate met in secret, reporters went out of their way to print even more details, thereby proving the fired clerk's innocence.

Events climaxed in 1929 when a United Press reporter published a nomination vote from a secret session. Until then the Senate had believed secrecy necessary to protect the privacy of nominees and the sensitivity of foreign nations with whom the United States had signed treaties. But in 1929 the Senate concluded that it could not suppress such important information. Senators voted to open all executive sessions except for the very few dealing with highly classified national security issues.

Although Congress now does much less business in secret, in 1992 it once again investigated a leak. During the Senate Judiciary Committee's hearings on the nomination of Clarence Thomas to the Supreme Court, two reporters learned that the committee had received charges that the nominee had sexually harassed a former member of his staff, Anita Hill. Hill had not wished to appear in public, but she agreed to testify after the story broke. The Senate appointed a special counsel to investigate the source of the leak, but he concluded that so many members of the committee and staff had the information that it was impossible to determine who had leaked it. The special counsel condemned the practice of leaking because it ran contrary to the atmosphere of mutual cooperation and respect needed to conduct legislative business.

See also Censure; Media coverage of Congress

Sources

• Donald A. Ritchie, Press Gallery: Congress and the Washington Correspondent (Cambridge: Harvard University Press, 1991)