March 10, 2011 – Article I, Section 05, Clause 3-4 of the United States Constitution – Guest Essayist: Scot Faulkner, Executive Director, The Dreyfuss Initiative on Civics
Article 1, Section 5, Clause 3
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.
Documenting public processes have been part of governing since the rise of early civilizations. From the Sumerians in 2500 BC, to ancient Egypt and Babylon, governments have kept journals of their actions and public meetings.
The Founding Fathers knew the importance of maintaining a Journal of Proceedings from the English House of Commons. James Wilson, a member of the Committee on Detail which compiled the provisions of the draft Constitution, was a follower of the great British parliamentary scholar Sir William Blackstone. He quoted Blackstone’s Oxford 1756 lectures, which underscored the importance of a public record for holding officials accountable, “In the House of Commons, the conduct of every member is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection.”
The Constitution’s “Journal of Proceedings” wording flows from the Articles of Confederation. In March 1781 the Continental Congress approved the following provision: “…and shall publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legislatures of the several states.”
But what is the Journal? Every day the Congress approves the “Journal” of the previous session. This is the official outline of actions taken during the previous meeting of each Chamber, like a set of minutes. It is codified in Section 49 of Thomas Jefferson’s 1812 Parliamentary Manual that governs Congressional operations. Members of Congress do not approve the Congressional Record. That transcript of House and Senate proceedings has a colorful history.
The transcribing of Congressional debate was begun by private publishers. House and Senate proceedings, roll calls, debates, and other records were recorded and published in The Debates and Proceedings in the Congress of the United States (1789–1824), the Register of Debates in Congress (1824–1837), and the Congressional Globe (1833–1873).
During the 36th Congress [December 5, 1859 to March 3, 1861] it was decided that federal funds should be used for transcribing Congressional proceedings and that the Government Printing Office should publish the verbatim record. The Congressional Globe was contracted to provide stenographers in the House and Senate Chambers. In 1873, the Globe’s contract was not renewed, and the Congressional Record was born. The Clerk of the House and the Secretary of the Senate now oversee documenting and transcribing the verbatim proceedings of their respective chambers.
The Congressional Record is still not an accurate verbatim transcript of the proceedings and debate for each Chamber. Members routinely insert remarks and documents after the fact. While these “revised and extended remarks” help Members explain their actions, they are considered “secondary authorities” when it comes to determining legislative intent. Secondary authorities are generally afforded less weight than the actual texts of primary authority during Judicial review.
The chronicling of Congress has come almost full circle. While the Congressional Record remains the official transcript of proceedings, CSPAN, a nonprofit private entity, provides live coverage of each Chamber. The cameras are owned and maintained by the Architect of the Capitol, while their operations and broadcasts are operated by staffs of the Chief Administrative Officer in the House and the Secretary of the Senate. CSPAN receives the signal and airs it on its various cable television channels. Live House broadcasting began on March 19, 1979 while Senate coverage commenced on June 2, 1986.
Article 1, Section 5, Clause 4
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
The Constitutional Convention of 1787 made sure the two Congressional chambers had equity when it came of the operations of the Legislative Branch. Neither the House nor the Senate may adjourn for more than three days (excluding Saturdays, Sundays, and holidays) without the concurrence of the other Chamber. The formal end of a Congress is when the Legislative Branch adjourns “Sine Die” (from the Latin “without day”) meaning “without assigning a day for a further meeting or hearing”. The Constitution [Article 2, Section 3] also grants the President the authority to summon the Congress for a special session if circumstances require. The Twentieth Amendment to the Constitution also sets a formal start and end time for each Congress.
These various provisions have led to numerous unintended consequences.
One of the first instances was when the Southern states seceded from the Union. They deprived the sitting Congress of a quorum. In order to continue governing, President Abraham Lincoln issued the very first Presidential Order on April 15, 1861, Executive Order 1.
The most complex consequence of Clause 4 relates to when Congress takes a recess and when it adjourns. A recess is a temporary halt to activity on the floor. Everything stops, and when the recess ends, the chamber resumes from where it left off. A recess might last 10 minutes or it might last weeks. The length of time does not matter. An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off. Just like a recess an adjournment can be for one minute or for three weeks. However, unlike a recess, an adjournment creates a new legislative day (this is more relevant to Senate proceedings).
Certain things happen, under the standing rules of the House and Senate, precisely because it is a new legislative day. Much of it is routine business: the reading of the previous day’s journal, filing of reports, delivery of messages from the House, etc., but there are also consequential things. In the Senate, during the first two hours of each new legislative day, motions to proceed are not debatable, and therefore cannot be filibustered.
Any formal break in Legislative Branch activity also opens the door for a President to take certain actions. This includes making appointments which require Senate confirmation, and “pocket vetoing” legislation. A pocket veto means that the Congress cannot override the veto because it is not in session. An adjournment of the Legislative Branch also allows the President to reconvene Congress for a specific action [Article 2, Section 3]. Congressional leaders have devised ways to avoid inadvertently unleashing Presidential activism.
The Congress can take a break from legislative activity, and still avoid a formal recess or adjournment, by meeting in a “pro forma” session. Pro forma means “for the sake of formality”. In recent years pro forma sessions have prevented Presidents from making recess appointments, and in the case of President George W. Bush in 2008, deprived him calling a special session to reauthorize the Protect America Act and the Foreign Intelligence Surveillance Act.
As long as a Member convenes either the House or Senate to formally open and close a session there is no recess or adjournment. Members sometimes compete to see how fast they can conduct a pro forma session. The record is currently held by Senate Jack Reed of Rhode Island who completed the task in 12 seconds.
Scot Faulkner served as the Chief Administrative Officer of the U.S. House of Representatives. He earned a Masters in Public Administration from American University, and B.A. in Government from Lawrence University. He is the Executive Director of The Dreyfuss Initiative on civics www.TheDreyfussInitiative.org