[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 17. Committees]
[C. Committee Procedure]
[§ 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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