[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 17. Committees]
[C. Committee Procedure]
[Â§ 20. Disclosure of Unreported Committee Proceedings]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2723-2730]
 
                               CHAPTER 17
 
                               Committees
 
                         C. COMMITTEE PROCEDURE
 
Sec. 20. Disclosure of Unreported Committee Proceedings

Disclosure in Debate

Sec. 20.1 It has been held not in order in debate to refer to the 
    proceedings of a committee [or of its subcommittee(s)] unless the 
    committee has formally reported its proceedings to the House.

    On June 24, 1958,(5) under previous order of the House, 
Speaker Sam Rayburn, of Texas, recognized Mr. Thomas B. Curtis, of 
Missouri, for 60 minutes. Mr. Curtis discussed his reservations about 
certain hearings of the Subcommittee on Legislative Oversight of the 
Committee on Interstate and Foreign Commerce. The gravamen of his 
complaint was that the Subcommittee on Legislative Oversight, in public 
session, had raised the issues of (1) alleged preferential treatment to 
a named individual by two government agencies, and (2) alleged improper 
intervention by a named assistant to the President only to then take 
public testimony about the hospitality that was extended and accepted 
between the two individ

[[Page 2724]]

uals without first establishing any evidence to prove the truthfulness 
of the allegations. Mr. Curtis believed that the action of the 
subcommittee was in violation of House rules.(6)
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 5. 104 Cong. Rec. 12119-21, 85th Cong. 2d Sess.
 6. Mr. Curtis was concerned with what were then clauses 25(m) and (o) 
        of Rule XI which he had earlier quoted, in part [104 Cong. Rec. 
        12120, 85th Cong. 2d Sess.], as follows: ``If the committee 
        determines that evidence or testimony at an investigative 
        hearing may tend to defame, degrade, or incriminate any person, 
        it shall--
            ``(m)(1) Receive such evidence or testimony in executive 
        session; . . .
            ``(o) No evidence or testimony taken in executive session 
        may be released or used in public sessions without the consent 
        of the committee.''
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    As the following exchange (7) indicates, Mr. Oren 
Harris, of Arkansas, Chairman of the parent committee, was of a 
contrary opinion and successfully challenged Mr. Curtis' right to 
discuss the as yet unreported subcommittee proceedings:
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 7. 104 Cong. Rec. 12121, 12122, 85th Cong. 2d Sess.
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        Mr. Curtis of Missouri: . . . In these times of 
    scandalmongering . . . I believe it is very important that persons 
    in public life have a regard not only for the substance of things, 
    but for appearances. . . .
        However, the issue I took the floor to discuss was the actions 
    of this House subcommittee, which seems to me to be inexcusable. . 
    . .
        . . . Not only is this subcommittee . . . not doing the job 
    that needs to be done, it has brought the institution again . . . 
    into disrepute by disregarding the rules of the House and 
    permitting a committee of the House to be used as a forum in this 
    fashion.
        Mr. Harris: Mr. Speaker, I must object again and ask that those 
    words be deleted.
        Mr. Curtis of Missouri: I would like to ask the gentleman 
    before he does, just what language is he objecting to?
        Mr. Harris: To the charge that this committee is violating the 
    rules of the House.
        Mr. Curtis of Missouri: Well, I certainly do charge that and I 
    think it is proper to charge such a thing if I have presented the 
    evidence. How else are we going to present the case to the House?
        The Speaker: There is a long line of decisions holding that 
    attention cannot be called on the floor of the House to proceedings 
    in committees without action by the committee. The Chair has just 
    been reading a decision by Mr. Speaker Gillett and the decision is 
    very positive on that point.(8)
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 8. See 8 Cannon's Precedents Sec. 2491.
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        Mr. Curtis of Missouri: Mr. Speaker, in addressing myself to 
    that, may I say I am unaware of such a rule and I would argue, if I 
    may, in all propriety, that that rule, if it does exist, should be 
    changed because how else will the House ever go into the 
    functioning and actions of its committees?
        The Speaker: That is not a question for the Chair to determine. 
    That is a

[[Page 2725]]

    question for the House to change the rule.
        Mr. Curtis of Missouri: Mr. Speaker, is it a rule or is it a 
    ruling? If it is a ruling of the Chair, then it is appropriate for 
    the Chair to consider it.
        The Speaker: The precedents of the House are what the Chair 
    goes by in most instances. There are many precedents and this Chair 
    finds that the precedents of the House usually make mighty good 
    sense.
        Mr. Curtis of Missouri: But the Chair can change a precedent. 
    That is why I am trying to present this matter.
        The Speaker: If the Chair did not believe in the precedents of 
    the House, then the Chair might be ready to do that, but this Chair 
    is not disposed to overturn the precedents of the House which the 
    Chair thinks are very clear.
        Mr. Curtis of Missouri: Mr. Speaker, if the Speaker will allow 
    me just one brief moment to point out the reason why I think this 
    is a precedent which should be overruled in the light of a specific 
    case that is before us, which I think very appropriately should be 
    discussed on the floor of the House, and it is certainly better to 
    discuss it on the floor of the House than in the newspapers.
        The Speaker: The Chair will ask the Clerk to read a part of the 
    ruling by Mr. Speaker Gillett.(9)
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 9. Cannon's Precedents Sec. 2491.
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        The Clerk read as follows:

            The Speaker ruled: ``The Chair has always supported that 
        the main purpose of the rule forbidding the disclosure of what 
        transpired in committees was to protect the membership of the 
        committee so that discussions in the committee, where members 
        were forming their opinions upon legislation, might be 
        absolutely free and unembarrassed. Whereas, in this House men 
        are making records, in a committee men ought to act with a 
        consciousness that their attitude would not be published, so 
        that they could consult and discuss with perfect freedom and 
        the committee would have the first as well as the final 
        judgment of all the members of the committee without fear of 
        seeming inconsistent. The Chair has always supposed that was 
        the real purpose, and it is extremely important that the 
        members of the committee should in its proceedings be mutually 
        confidential. But the Chair in inspecting the decision finds 
        that they go much further than that, and they hold not that 
        simply what was said in the committee was confidential but that 
        the records of the committee could not be quoted without the 
        previous authorization of the committee.''

        Mr. Curtis of Missouri: Mr. Speaker, I have been directing my 
    attention only to what has transpired in public hearings of this 
    committee. As a matter of fact, the gravamen of the charge that I 
    am making lies in the other House rule, the one that I cited on 
    this particular subject, and not what should have been considered 
    in executive session. This was disclosed and it is common knowledge 
    that this has been published throughout the country in the 
    newspapers.
        The Speaker: Those hearings have not been published by the 
    House.
        Mr. Curtis of Missouri: They are public hearings.
        The Speaker: They have not been reported to the House.
        Mr. Curtis of Missouri: They have been made available to the 
    public, Mr.

[[Page 2726]]

    Speaker, and the press has quoted them. Surely a Member of the 
    House should have an equal privilege of discussing these matters 
    which are so important to the House.
        The Speaker: Anywhere except on the floor of the House.
        Mr. Curtis of Missouri: I would think, with all due respect to 
    the Speaker, that the floor of the House is the fairest place to 
    discuss them, because then those who take exception have an 
    opportunity of answering, whereas if it is through a press release 
    they have no opportunity of answering. I will abide by the ruling, 
    of course.
        The Speaker: The Chair has made his ruling, and the Chair 
    thinks it is correct.

    Parliamentarian's Note: While it has consistently been held that it 
is not in order in debate to refer to the proceedings of a committee 
except as have been formally reported to the House (5 Hinds' Precedents 
Sec. Sec. 5080-83, 8 Cannon's Precedents Sec. Sec. 2269, 2485-93), 
those precedents do not all distinguish between committee meetings or 
hearings that were open to the public and those that were executive 
sessions. Clearly, transactions in executive sessions of committees 
cannot be revealed to the House in debate (8 Cannon's Precedents 
Sec. 2493; Feb. 1, 1940, 86 Cong. Rec. 954, 76th Cong. 3d Sess.); and 
there are some decisions (as indicated by Sec. 20.1, infra) which 
purport to extend this principle to open meetings and hearings, 
although the Speaker has declined to enforce this principle on his own 
initiative absent a point of order on the floor (see Sec. 20.2, infra). 
On Apr. 18, 1924 (8 Cannon's precedents Sec. 2491) where the chairman 
of a committee attempted to quote from a committee's executive session 
minutes merely to show that the heavy legislative agenda of his 
committee should convince Members to vote against a pending motion to 
discharge his committee from further consideration of a bill, Speaker 
Gillette sustained a point of order against such a reference but 
indicated misgivings about the trend of the decisions. He indicated 
that it is ``important for the House to know what transpired in the 
committee in order that the House could Judge better whether or not 
action should be taken. . . . If it was a new question the Chair would 
be strongly inclined to hold that it is in order. But the decisions are 
very conclusive, from 1884, to the reflect that the records of the 
committee are not available to comment in the House, and therefore the 
Chair under the precedents feels constrained to sustain the point of 
order.''
    The rationale for these earlier decisions was to protect the 
integrity and independence of com

[[Page 2727]]

mittee proceedings to permit flexibility and the opportunity to 
compromise in committee deliberations. However, current rules governing 
committee procedure have a different emphasis. Clause 2(e)(1) of Rule 
XI as added by the Legislative Reorganization Act of 1970 (84 Stat. 
1140) now requires each committee to make available for public 
inspection all rollcall votes taken in any committee session and a 
description of the amendment, motion, order, or other proposition and 
Members' votes thereon. That rule, coupled with the presumption in the 
1970 Act that all committee meetings and hearings are to be open to the 
public and press unless they are closed by rollcall vote and the fact 
that open committee meeting and hearing transcripts are made, as a 
matter of course, available to Members, the press, and the public, even 
prior to the reporting of that matter to the House, mitigates against a 
strict adherence to some of the earlier decisions insofar as they apply 
to open meetings and hearings. See also Chapter 29, ``Consideration and 
Debate'' section 55, infra, for further precedents on this subject.
    Another consistent line of precedent prevents reference in debate 
to committee actions which impugn the motives of committee members, 
whether or not by name (Feb. 11, 1941, 87 Cong. Rec. 894, 77th Cong. 
1st Sess.).

Sec.  20.2 Prior to the adoption of the Legislative Reorganization Act 
    of 1970, it has been held that a Member may not use transcripts of 
    open committee meetings in debate where the matter has not been 
    reported to the House.

    On July 28, 1939,(10) shortly after the House met, 
Speaker William B. Bankhead, of Alabama, recognized Mr. Chester H. 
Gross, of Pennsylvania, who proceeded to obtain unanimous consent to 
address the House for one minute. Mr. Gross then made the following 
statement:
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10. 84 Cong. Rec. 10352, 76th Cong. 1st Sess.
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        Mr. Speaker, as a member of the Committee on Labor of this 
    House, I want the House to know that when the chairman of the 
    committee, the gentlewoman from New Jersey [Mrs. Norton], yesterday 
    thanked John L. Lewis for his fine contribution to the committee 
    after he had made his vicious and uncalled for assault on that 
    courageous American, Jack Garner, she was not speaking the 
    sentiment of the committee. And I as one of the committee resent 
    the statement of Mr. Lewis.

    Immediately thereafter, Mr. Matthew A. Dunn, of Pennsylvania, 
similarly obtained unani

[[Page 2728]]

mous consent to address the House whereupon the following sequence of 
events took place:

        Mr. Dunn: Mr. Speaker, before the Labor Committee went into 
    session yesterday a motion was made and carried that none of the 
    Members should have the right or the privilege to interrogate any 
    person who appeared before the committee. Three of the members of 
    the committee voted against that motion, and I was one of the 
    three. The gentleman from Pennsylvania [Mr. Gross] was one of those 
    who voted for that motion.
        Mr. [Joseph W. Martin [Jr.] of Massachusetts: Mr. Speaker, a 
    point of order.
        The Speaker: The gentleman will state it.
        Mr. Martin of Massachusetts: The gentleman from Pennsylvania 
    cannot divulge what happened in the committee.
        The Speaker: The gentleman from Pennsylvania will suspend. The 
    gentleman from Massachusetts [Mr. Martin] makes the point of order 
    that the gentleman from Pennsylvania is undertaking to disclose the 
    proceedings before a committee of the House on a matter which has 
    not been reported by the committee to the House. The rules and 
    precedents sustain the point of order made by the gentleman from 
    Massachusetts, and the gentleman from Pennsylvania, under the 
    rules, is not privileged to discuss matters which occurred before 
    the committee.
        Mr. Dunn: Very well, Mr. Speaker. May I proceed?
        The Speaker: The gentleman may proceed in order, but he cannot 
    disclose or interpret matters that occurred before the committee on 
    measures that have not been reported to the House.
        Mr. Dunn: Did not the gentleman from Pennsylvania [Mr. Gross] 
    do the same thing?

        The Speaker: The gentleman from Pennsylvania [Mr. Gross] did 
    divulge matters which occurred before the committee, but no point 
    of order was made, and, therefore, the Chair could not act on his 
    own motion.

Disclosure of Proceedings to Support Point of Order

Sec.  20.3 A Member may refer to the printed proceedings of a public 
    subcommittee meeting to justify his point of order that a 
    resolution providing for a select committee to inquire into 
    subcommittee actions was not privileged.

    On June 30, 1958,(11) Speaker Sam Rayburn, of Texas, 
recognized Mr. Thomas B. Curtis, of Missouri, who stated that he rose 
to a question of the privilege of the House and immediately offered a 
resolution (H. Res. 610), which provided for the appointment of a 
special committee to investigate the possible violation of House rules 
(12) by the Sub
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11. 104 Cong. Rec. 12690, 85th Cong. 2d Sess.
12. The gravamen of the complaint was that the subcommittee had failed 
        to comport with the dictates of what was then Rule XI clause 
        25(m) [see Rule XI clause 27(m), House Rules and Manual 
        Sec. 735(m) (1973)]. This rule provided, in part, that if a 
        committee determined that evidence or testimony at an 
        investigative hearing would tend to defame, degrade, or 
        incriminate any person, it should receive such evidence or 
        testimony in executive session.
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[[Page 2729]]

committee on Legislative Oversight of the Committee on Interstate and 
Foreign Commerce. The Clerk read the resolution as follows:

        Whereas on February 5, 1957, the House passed House Resolution 
    99 empowering its Committee on Interstate and Foreign Commerce to 
    make investigations and studies into matters within its 
    jurisdiction; and
        Whereas the Committee on Interstate and Foreign Commerce 
    created a subcommittee entitled Subcommittee on Legislative 
    Oversight to carry out this mandate; and
        Whereas House Rule XI 25(m) adopted March 23, 1955, reads as 
    follows:
        ``If the committee determines that evidence or testimony at an 
    investigative hearing may tend to defame, degrade, or incriminate 
    any person, it shall--
        ``(1) receive such evidence or testimony in executive session;
        ``(2) afford such person an opportunity voluntarily to appear 
    as a witness; and
        ``(3) receive and dispose of requests from such person to 
    subpoena additional witnesses''; and
        Whereas on June 10, 25, 26, and 27, 1958, the aforesaid 
    subcommittee having been created and embarked upon its work, held 
    public hearings wherein it received testimony which may have tended 
    to defame, degrade, and incriminate a person and which tendency to 
    defame, degrade, and incriminate might have been obvious to the 
    subcommittee.
        Whereas it is common knowledge that the newspapers, radio, 
    television, and other media of public communication would, and did, 
    widely disseminate the testimony adduced at these public hearings; 
    and
        Whereas many responsible citizens publicly have directed 
    criticism against the actions of the subcommittee alleging that 
    these actions violated the letter and the spirit of the rules of 
    the House XI 25(m). That some of these criticisms state that on the 
    face of the published record of the hearings of the subcommittee 
    the alleged violations are willful and intentional; and
        Whereas these alleged actions of the subcommittee and the 
    public criticism of it affects the rights of the House 
    collectively, its safety, dignity, and integrity of its 
    proceedings: Now, be it
        Resolved, That a special committee of three members be 
    appointed by the Speaker of the House to inquire into this matter 
    and determine, if indeed the premises of this resolution and the 
    public criticisms as set out herein are true in fact, particularly 
    whether this subcommittee did violate the rules of the House and 
    whether in any instance the violation if so found was willful, and 
    whether any other actions of the subcommittee which pertain to the 
    carrying out of the words and intent of

[[Page 2730]]

    House Rule XI 25(m) and the purposes of House Resolution 99 were in 
    violation of the rules and purposes of the House. That the special 
    committee report back these findings to the House within 10 days 
    along with any recommendations it may make for correction and other 
    actions, which might include recommendations of approval or censure 
    of the subcommittee, its members or employees, recommendations for 
    changing the rules of the House of Representatives, recommendations 
    for instructions to the Committee on Interstate and Foreign 
    Commerce as to future procedure, recommendations for enlarging the 
    life and scope of investigation and subject matter of this special 
    committee.

    Immediately after the Clerk read the resolution, Mr. Oren Harris, 
of Arkansas, raised a point of order against the resolution on the 
ground that it was not a privileged resolution. In the course of so 
doing, he began to discuss the record of the subcommittee:

        A member of the committee, the gentleman from California [Mr. 
    Moss] made a motion in executive session at that time to the effect 
    that it did not come within the rule [requiring an executive 
    session] and that the testimony of the witness, as he had presented 
    it to us in a written statement, be taken in public session as 
    paragraph (g) of the rule provides. That motion was voted on. Nine 
    of the 11 members of the subcommittee were present, and there was 
    not a dissenting vote. The motion was agreed to, and thereupon the 
    subcommittee ended its executive session and proceeded to hear the 
    witness in public.

    At this juncture, the following (13) exchange and 
resultant ruling occurred:
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13. 104 Cong. Rec. 12690, 12691, 85th Cong. 2d Sess.
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        Mr. [Timothy P.] Sheehan [of Illinois]: A point of order, Mr. 
    Speaker.
        The Speaker: Well, there is one point of order pending.
        Mr. Sheehan: I am making a point of order on what he is talking 
    about now. According to the ruling the Speaker gave to the 
    gentleman from Missouri [Mr. Curtis] last week a Member could not 
    speak in the House about anything that happened during a committee 
    session until such time as the committee report was tendered to the 
    House. And, as a result, he is out of order.
        The Speaker: Well, here is a question of privilege of the House 
    being raised by the gentleman from Missouri [Mr. Curtis], and in 
    order for the gentleman from Arkansas [Mr. Harris] to justify his 
    point of order, he has got to discuss these matters. And, they are 
    in the printed record.(14)
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14. For a comparable situation involving the same issue but with 
        respect to subcommittee reports that had not yet been printed 
        see Sec. 20.1, supra.
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