[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 17. Committees]
[C. Committee Procedure]
[Â§ 21. Executive Sessions]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2730-2735]
 
                               CHAPTER 17
 
                               Committees
 
                         C. COMMITTEE PROCEDURE
 
Sec.  21. Executive Sessions

Generally; Voting to Close a Meeting or Hearing

Sec.  21.1 The House adopted a resolution reported from the

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    Committee on Rules (1) amending the rules to require that business 
    meetings of standing committees and subcommittees (except on 
    internal budget and personnel matters) shall be open to the public 
    except when the committee in open session determines by roll call 
    vote that all or part of the remainder of that meeting be closed, 
    and permitting committee staff and authorized congressional and 
    executive department staff to be present at closed meetings; and 
    (2) further amending the rules to impose similar requirements for 
    open hearings on all committees and subcommittees unless the 
    committee closes the remainder of that hearing because matters to 
    be considered would endanger national security or violate a law or 
    rule of the House.

    On Mar. 7, 1973,(15) the House adopted a resolution (H. 
Res. 272) providing for consideration, under an open rule, of House 
Resolution 259. Accordingly, the House resolved itself into the 
Committee of the Whole for the consideration of the resolution (H. Res. 
259), to amend the rules of the House to strengthen the requirement 
that committee proceedings be held in open session.(16)
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15. 119 Cong. Rec. 6700, 93d Cong. 1st Sess.
16. Id. at pp. 6706-20.
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    The resolution, as originally considered, read as follows:

        Resolved, That clause 26 (f) of rule XI (17~) of the 
    Rules of the House of Representatives is amended to read as 
    follows:
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17. In the previous Congress, Rule XI clause 26(f) had [H. Jour. 1602, 
        92d Cong. 2d Sess. (1972)] read: `` (f) Meetings for the 
        transaction of business of each standing committee shall be 
        open to the public except when the committee, by majority vote, 
        determines otherwise. This paragraph does not apply to open 
        committee hearings which are provided for by paragraphs (f)(2) 
        and (g)(3) of clause 27 of this Rule.''
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        (f) Each meeting for the transaction of business, including the 
    markup of legislation, of each standing committee or subcommittee 
    thereof shall be open to the public except when the committee or 
    subcommittee, in open session and with a quorum present, determines 
    by rollcall vote that all or part of the remainder of the meeting 
    on that day shall be closed to the public: Provided, however, That 
    no person other than members of the committee and such 
    congressional staff as they may authorize shall be present at any 
    business or markup session which has been closed to the public. 
    This paragraph does not apply to open committee hearings which are 
    provided for by paragraphs (f)(2) and (g)(3) of clause 27 of this 
    rule; or to any meeting that

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    relates solely to internal budget or personnel matters.''

        Sec. 2. Clause 27(f)(2) of rule XI (18) of the Rules 
    of the House of Representatives is amended to read as follows:
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18. In the previous Congress, Rule XI clause 27(f)(2) had [H. Jour. 
        1603, 92d Cong. 2d Sess. (1972)] read: ``(2) Each hearing 
        conducted by each committee shall be open to the public except 
        when the committee, by majority vote, determines otherwise.''
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        ``(2) Each hearing conducted by each committee or subcommittee 
    thereof shall be open to the public except when the committee or 
    subcommittee, in open session and with a quorum present, determines 
    by rollcall vote that all or part of the remainder of that hearing 
    on that day shall be closed to the public because disclosure of 
    testimony, evidence, or other matters to be considered would 
    endanger the national security or would violate any law or rule of 
    the House of Representatives.''
        Sec. 3. The first sentence of clause 27(g) (3) of rule XI 
    (19) of the Rules of the House of Representatives is 
    amended to read as follows: ``Hearings pursuant to subparagraph (1) 
    of this paragraph, or any part thereof,(1) shall be held 
    in open session, except when the committee, in open session and 
    with a quorum present, determines by rollcall vote that the 
    testimony to be taken at that hearing may be related to a matter of 
    national security.''
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19. In the previous Congress, the first sentence of Rule XI clause 
        27(g)(3) had [H. Jour. 1603, 92d Cong. 2d Sess.(1972)] read: 
        ``(3) Hearings pursuant to subparagraph (1) of this paragraph 
        shall be held in open session, except when the committee 
        determines that the testimony to be taken at that hearing may 
        relate to a matter of national security.''
 1. The subparagraph referred to, Rule XI clause 27(g)(1) remained 
        unchanged from the previous Congress and read [H. Jour. 1603, 
        92d Cong. 2d Sess. (1972)] as follows: ``(g)(1) The Committee 
        on Appropriations shall, within thirty days after the 
        transmittal of the Budget to the Congress each year, hold 
        hearings on the Budget as a whole with particular reference 
        to--(A) the basic recommendations and budgetary policies of the 
        President in the presentation of the Budget; and (B) the 
        fiscal, financial, and economic assumptions used as bases in 
        arriving at total estimated expenditures and receipts.''
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    Several issues arose in the ensuing debate. Some Members took 
exception to the proviso in proposed Rule XI clause 26(f) which 
precluded all persons ``other than members of the committee and such 
congressional staff as they may authorize'' from being present ``at any 
business or markup session which has been closed to the public.'' 
Others expressed reservations as to the ``workability'' of the 
requirement that a committee's decision to close a public meeting 
[26(f)] or a public hearing [26(f)(2)] be determined daily.
    Although the debate entailed other considerations, the afore

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mentioned issues were the most extensively discussed, and each was 
contained in a proposed amendment. Mr. Samuel S. Stratton, of New York, 
proposed that clause 26(f) be amended to allow ``departmental 
representatives'' to be present at closed meetings with the committee's 
authorization,(2) and Mr. Richard H. Ichord, of Missouri, 
proposed that the words, ``on that day'' be struck from both parts of 
the resolution where they appeared.(3) Both the Stratton 
(4) and Ichord (5) amendments were agreed to by 
the Committee of the Whole and by the House.
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 2. 119 Cong. Rec. 6714, 93d Cong. 1st Sess.
 3. Id. at p. 6715.
 4. Id. at p. 6715.
 5. Id. at p. 6718.
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    The resolution, as amended, was agreed to in the House by a vote of 
371-27.(6)
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 6. Id. at p. 6720.
            See Sec. 21.2, infra, for an instance in which a committee 
        ordered a bill reported in closed session without having voted 
        by roll call in open session to close that meeting.
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    Parliamentarian's Note: This rule (Rule XI clauses 2(g) (1) and (2) 
in the 1979 House Rules and Manual) was amended on Jan. 14, 1975, to 
limit to one day (in the case of a committee meeting) or to one day 
plus one subsequent day (in the case of a hearing) the period during 
which a committee may close its session. These clauses were again 
amended on Jan. 4, 1977, to require that a majority (rather than a 
quorum) be present when a committee or subcommittee votes to close a 
meeting or hearing and to provide that a noncommittee member cannot be 
excluded from a hearing except by a vote of the House. In the 96th 
Congress, paragraph 2 was amended further to permit a majority of those 
present under the rules of the committee for the purpose of taking 
testimony (not less than two members as provided in clause 2(h)(1) of 
Rule XI) to vote to close a hearing either to discuss whether the 
testimony would endanger national security or would violate clause 
2(k)(5) of Rule XI, or to proceed to close the hearing as provided by 
clause 2(k)(5).

Reporting of Bill From Improperly Convened Executive Session

Sec. 21.2 The Committee on Interstate and Foreign Commerce having 
    ordered a bill reported in closed session without having voted by 
    rollcall in open session to close the meeting (in violation of the 
    rules), the chairman of the committee disclosed that

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    fact during consideration of the bill in the Committee of the 
    Whole.

    On May 22, 1973,(7) the House resolved itself into the 
Committee of the Whole for the consideration of a bill (H.R. 7200), to 
amend the Railroad Retirement Act of 1937, the Railroad Retirement Tax 
Act, and the Interstate Commerce Act, among other purposes. The Clerk 
proceeded to read the title of the bill, and, by unanimous consent, the 
first reading was dispensed with.
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 7. 119 Cong. Rec. 16521, 93d Cong. 1st Sess.
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    Shortly thereafter, Chairman William J. Green, of Pennsylvania, 
recognized r. Harley O. Staggers, of West Virginia, and the following 
exchange took place:

        Mr. Chairman, I will not take very long on the bill.
        Mr. [Dante B.] Fascell [of Florida]: Mr. Chairman, will the 
    gentleman yield?
        Mr. Staggers: I yield to the gentleman from Florida.
        Mr. Fascell: Mr. Chairman, thank the gentleman for yielding.
        I take this time to ask if I am not correct in my information 
    that at the time the full committee considered the bill in 
    executive session, it was a closed session, but a recorded vote to 
    close the session was not taken.(8)
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 8. Mr. Fascell was concerned, here, with what appeared to be an 
        inadvertent failure to follow clause 26(f) of Rule XI which 
        read [Rule XI clause 2(g)(1) House Rules and Manual Sec. 708 
        (1979)] in pertinent part: ``(f) Each meeting for the 
        transaction of business, including the markup of legislation, 
        of each standing committee or subcommittee thereof shall be 
        open to the public except when the committee or subcommittee, 
        in open session and with a quorum present, determines by 
        rollcall vote that all or part of the remainder of the meeting 
        shall be closed to the public . . . .''
            See also Rule XI clause 2(g)(2), House Rules and Manual 
        Sec. 708 (1979).
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        Mr. Staggers: That is correct.
        Mr. Fascell: I thank the gentleman for saying that.
        Mr. Chairman, let me say that the present rule which makes this 
    bill in order does not waive points of order, and an issue could 
    have been raised with respect to the consideration of this bill, 
    which I certainly did not want to raise, but it would have put the 
    committee in the awkward position, had the point of order been 
    raised on consideration of the bill, of either going back to the 
    Rules Committee and getting a rule which waived points of order or 
    of going back to the committee and having another vote on the bill 
    which had been marked up.
        I thank the chairman for yielding me this time to raise this 
    issue, because I think it is important that in consideration of our 
    bills we do not inadvertently violate the rules of the House with 
    respect to the recorded vote on closed meetings.

    Parliamentarian's Note: Mr. Fascell was an author of House

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Resolution 259 (9) which incorporated Rule XI clause 26(f) 
into the rules of the House. He had indicated he would raise a point of 
order against consideration of the bill when the motion was male to go 
into the Committee of the Whole,(10) but declined to do so 
after agreeing to make legislative history on the issue during general 
debate.
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 9. 119 Cong. Rec. 6720, 93d Cong. 1st Sess., Mar. 7, 1973.
10. Id. at p. 16521.
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Committee Response to Press Allegation of Unauthorized Attendance at 
    Executive Session

Sec. 21.3 A committee has adopted a resolution refuting a newspaper 
    account to the effect that an unauthorized person had attended an 
    executive session.

    On Aug. 3, 1967,(11) Thaddeus J. Dulski, of New York, 
Chairman of the Committee on Post Office and Civil Service, obtained 
unanimous consent to extend his remarks in the Record. The opportunity 
was utilized to respond to certain statements in the press regarding an 
executive session of the Subcommittee on Postal Rates. Accordingly, Mr. 
Dulski inserted the following resolution which was agreed to, 
unanimously, by the Committee on Post Office and Civil Service: 
(12)
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11. 113 Cong. Rec. 21179, 90th Cong. 1st Sess.
12. Id. at p. 21180.
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        Whereas in the Washington Post on Sunday, July 23, 1967, in the 
    column headed ``The Federal Diary'' by Jerry Klutz, there appeared 
    the statement in connection with an article about a certain 
    legislative consultant that ``he walked out of Wednesday's closed 
    session with subcommittee members.'';
        Whereas this same allegation has appeared in other subsequent 
    newspaper articles;
        Whereas such allegation is false; Now, therefore, be it
        Resolved, That the subcommittee in executive session does 
    hereby declare that to the personal knowledge of the individual 
    Members of the subcommittee, including the chairman of the full 
    committee and ranking minority member, both of whom were in 
    attendance throughout the course of the executive session, and in 
    the personal knowledge of the Staff Director and other staff 
    present, and based upon the official records kept by the 
    subcommittee, neither the legislative consultant in question nor 
    any other person except members and authorized committee staff 
    personnel was in the committee room or participated in the 
    subcommittee executive session on the date specified or on any 
    other date during which the subcommittee met in executive session.

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