Don't Forget the One-Fifth Clause

A column at Politico claims that the Senate can, by simple majority vote, decide on a secret ballot for impeachment -- but I don't think so.

|The Volokh Conspiracy |

This column at Politico (by Republican political consultant Juleanna Glover) argues:

By most everyone's judgment, the Senate will not vote to remove President Donald Trump from office if the House impeaches him. But what if senators could vote on impeachment by secret ballot? If they didn't have to face backlash from constituents or the media or the president himself, who knows how many Republican senators would vote to remove?

A secret impeachment ballot might sound crazy, but it's actually quite possible. In fact, it would take only three senators [Republicans who would cross over to form a majority with the Democrats] to allow for that possibility.

But I don't think that's right; article I, section 5 of the Constitution provides (emphasis added),

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

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….

That seems to provide a clear rule governing the matter: If 1/5 of the Senators oppose a secret ballot, the yea and nay votes "shall … be" made public, e.g.,

You'd need 81 senators for secrecy, not 51. Whatever one might say as a policy matter about the advantages and disadvantages of secret ballots, the Constitution's text has taken a very specific stand on this subject. (Prof. Josh Chafetz (Cornell) has argued the same, and I'm sure others have as well.)

The column has an UPDATE, reading,

Some constitutional scholars have pointed out that Article 1, Section 5, of the Constitution designates that 20 senators can oppose a secret ballot on "any questions," but "questions" are defined as "Any matter on which the Senate is to vote, such as passage of a bill, adoption of an amendment, agreement to a motion, or an appeal." No mention of impeachment proceedings is made. And, as others have pointed out, preceding this one-fifth requirement is crucial language: "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." Precedents are so thin here, but it is clear the Senate has the power to make its own rules over the trial proceedings. Those rules have historically required a simple majority of support.

That, though, seems wrong to me. First, the Constitution doesn't limit "any questions" to bills, amendments, motions, or appeals (which would mean appeals from procedural rulings). That quote comes from the Senate's web site, which doesn't seem particularly authoritative on this score—and in any event, gives bills, amendments, and the like as such examples ("such as") of "questions." Whether to remove a President from office strikes me as well within the term "any question," and for that matter within the Senate site's phrase "Any matter on which the Senate is to vote."

Second, that "excepting such Parts as may in their Judgment require Secrecy" precedes the one-fifth requirement simply makes clear that (1) secrecy is sometimes allowed, but (2) can be overcome by a one-fifth vote, not by a half-plus-1 vote or any other mechanism.

Third, while article I, section 5 does leave each house with the power to "determine the Rules of its Proceedings," that general power is limited by the specific constraints in the same section:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

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….

I take it that we wouldn't think that the Senate could expel a Senator by a 51-49 vote, simply by creating a "Rule[] of its Proceedings" that authorizes that; the "Concurrence of two thirds" needed to "expel a Member" is an express limitation on the Senate's powers, including its powers to make rules for expulsion. Likewise, the One-Fifth Clause is an express limitation on the Senate's powers, including its powers to make rules for operating in secret.

UPDATE: I added the Senate Journal image from the First Congress, just as a vivid illustration of the procedure.

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  1. Professor Volokh,

    I think that the phrase.

    “excepting such Parts as may in their Judgment require Secrecy….”

    applies to each house as a whole, not just to the members who want the matter recorded. So a fifth of the senators can require recording the votes on the journal. But a simple majority can then vote to make the portion of the journal in which the votes are recorded secret. If they did, I suspect courts would not overturn it.

    1. “But a simple majority can then vote to make the portion of the journal in which the votes are recorded secret.”

      Can you walk me through your reasoning? Idk how you got here

      1. “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”

        Whose Judgement?

        I think the grammarian’s answer is each house, in this case the Senate. The house keeps and publishes, so the house excepts. Which means it’s the house’s judgment what to except. And each house normally acts by majority vote. So that’s how the house exercises judgment.

        The only thing a fifth of the members can do is require entry on the journal. But clearly publishing the journal and making exceptions from publication are separate acts from entering things on it. That’s what the text says. When the Constitution uses two separate words, it means two separate things.

        1. That is, a house can have a secret journal. The enter-on-the journal requirement can be satisfied by entry on the secret journal. Only things entered on the published journal get published. Keeping a written record and publishing that record are separate acts.

        2. ’cause in a roll call vote, for required entry into the journal, no one no the senate floor is making their own list of yeas and neighs…

          1. They can do the vote in secret session. And the majority can discipline senators who reveal what occurs in secret session, as is the case for violating secrecy in any other secret session. If they have a 2/3 majority, they could expel them.

    2. Right. That does seem to be the most technically accurate reading of the section.

      Mr. Derelictionofbooty, the section allows for parts of the journal to go unpublished. Yes, it says votes must be recorded in the journal upon request, but that doesn’t mean the part of the journal has to be published. Two different things.

    3. That was my immediate reaction when I read the section. It clearly allows for parts of the journal remain secret. The yeas and nays will be in the journal upon the insistence of 1/5, but that part of the journal may be kept secret by majority vote. The one-fifth requires recording in the journal, not disclosure.

  2. “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”

    OK, as I see it, 1/5 can demand the yeas and nays on an impeachment vote to be entered on the Journal.

    Then a majority can vote that that particular part of the Journal “require[s] Secrecy” and thus that part of the Journal won’t be published.

    Then cross their fingers and hope there aren’t any leaks.

    1. …and in case they’re worried about the wrath of the voters, then from greater caution they can vote to keep secret the vote on keeping the vote secret, and so on ad infinitum, so the public doesn’t have to know who was so eager to suppress the results of the voting.

      Sounds like a plan!

      1. “Sounds like a plan!”

        Yes, if it worked, Trump supporters would be forced to blame every GOP senator since they would know which 20 defected. That couldn’t possibly be bad for GOP senators!

        1. would not know

          1. Come on, Bob, you know we’d both be all for secret ballots if a Democrat were to be impeached! It’s only blind partisanship which induces us (and all those Senates who held open votes in past impeachment trials) to oppose this common-sense procedure.

          2. A secret ballot for the impeachment trial vote would be a mess.

            You just know Trump would claim he won save for all those illegal immigrants voting. In other news, Trump gave a speech today at the Economic Club of New York in which he declared daughter Ivanka personally created 14 million new jobs. I bet she never broke a sweat…..

      2. The key there is that a simple majority could vote to keep the impeachment vote secret.

        It wouldn’t be nearly as hard to round up a couple of defectors.

        1. Yes, all you’d need is a few Republican Senators open to offers to join the Democratic party as the Republican party died. It probably wouldn’t do them any good, they’d lose the next Democratic primary anyway.

        2. “It wouldn’t be nearly as hard to round up a couple of defectors.”

          It would taint every GOP senator running for re-election. Messy primary challenges, Trump campaigning against them, potential independant challenges.

          None of them are suicidal in this manner.

    2. Maybe the media can declare all the Senators to be whistleblowers and therefore any leaking of their votes to remove the duly elected President to be unconscionable retaliation.

      1. If the whistleblower had gone to the media, you might have a point.

        As it is, you either don’t know the facts or don’t know what leaking means.

  3. This is the bio of the Politico writer:

    “Juleanna Glover has worked as an adviser for several Republican politicians, including George W. Bush, Dick Cheney, John Ashcroft and Rudy Giuliani, and advised the presidential campaigns of John McCain and Jeb Bush.”

    1. She is probably way out of touch with the current party.

      Does anyone really imagine there are the votes in the GOP Senate majority to depose McConnell and allow this whole pipe dream to get thru the new Majority leader?

  4. This is one of the reasons I love coming to The Volokh Conspiracy. Seriously, this is a pretty arcane topic you’d never find discussed much anywhere else.

    My big takeaway: If 20 Senators want a vote recorded in the Proceedings, it will be. And politicians being what they are, will leak like a sieve.

    The Founders were incredibly insightful men.

  5. Would you need 81 votes in order to force secrecy though? Couldnt politically imperiled Senators just abstain from the vote for secrecy?

  6. The reason why secret ballots are being discussed is the belief that the only reason Republicans will vote against impeachment is they are afraid of the consequences of opposing Donald Trump. This is in turn predicated on the belief that the only reason any Republicans ally with Trump is they’re afraid of him.

    So whatever the legality behind a secret vote, the desire for one is
    largely predicated on the idea that no sane person would ever support something Donald Trump has done and if only we can remove the pressure to conform Republicans will come to their senses and impeach.

    1. “The reason why secret ballots are being discussed is the belief that the only reason Republicans will vote against impeachment is they are afraid of the consequences of opposing Donald Trump.”

      No, you’ve got that subtly wrong: They’re not afraid of Trump. They’re afraid of their own voters, who happen to like Trump.

    2. The reason why secret ballots are being discussed is the belief that the only reason Republicans will vote against impeachment is they are afraid of the consequences of opposing Donald Trump.

      Gotta love it. Some on the left are all “impeachment can be over anything we want. It’s political!” Which means you stand tall before your voters for what you are doing.

      Then try to take the politics out of it so they can’t be held accountable politically, which is to say, by the voters.

    3. It is telling that the argument is not “it should be secret so the Dems can vote their consciences to exonerate the president because he clearly did nothing wrong and the effort is purely partisan.” What is fueling the opposition to a secret vote is the likelihood that the commission of a serious, impeachable offense will be proven at trial, and only pure partisanship can save the president.

      1. I don’t think so; I think it’s pretty much a given that most Republican Senators, being members of the GOPe, really don’t like Trump. He affronts their sensibilities in multiple ways, his getting the nomination and then winning the election challenges the establishment’s role as gatekeeper to office, he’s committing the ultimate sin of actually trying to fulfill campaign promises. (Which makes voters question why THEY don’t.)

        All things being equal they’d love to be rid of him, for reasons that have nothing whatsoever to do with the presumptive impeachment charges. The problem they face is that the voters they rely on to retain office LIKE Trump, rendering removing him without a damned good excuse politically suicidal.

        The attraction of the secret ballot is that they could vote to remove him and then lie to the voters about it. And count on the voters’ doubt to protect them.

  7. I read it as:

    (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….)

    As in, the names must be entered in the journal at the demand of 1/5th, but the publication thereof is subject to the secrecy exception controlled by majority vote.

    I expect that if there were any precedent on the favored reading it would have been cited, so the only thing we can be sure of is this all dragging on past next November.

  8. Now that the left is getting over its collectivist hissy fit over the latest Trump “Orange Man Bad” outrage, it is waking up to a bad hangover of Impeachment Regret. They realize that Hunter Biden is most likely a criminal and his daddy was using his influence to cover up for his kiddie behaving badly. And they have already blown their load to also realize that impeachment didn’t move the outrage needle any further then the already existing background anti-Trump static.

    Wouldn’t be surprised if at this point the House converts articles of impeachment into some censure resolution in an attempt to save face.

    1. If we wanted really stupid talk radio talking points from awful human beings, we could listen to really stupid talk radio hosts, Jimmy.

      1. Nice deflection from the real issue. There is nothing here over which a President of the United States can be impeached. Absolutely nothing. (Other than the banal argument that the House and Senate define the rules and therefore can in theory impeach the President on anything they like).

        I hope though the Dems keep pushing their treason. It is just the next logical step in all their seditious activities since the election. History is going to judge them very poorly.

      2. Sad to see you go down the TDS rabbit hole 🙁

        1. Noting JtD’s pure ipse dixit isn’t TDS.

  9. If they truly believe they are justified in their vote, then it their duty to vote so publicly, regardless of how it affects their prospects for reelection.

    Secret votes by legislatures are as repugnant as secret courts.

    1. Every secret court should have its own brass band:

      https://www.youtube.com/watch?v=b_Is5tGGPuA

    2. “Secret votes by legislatures are as repugnant as secret courts.”

      Indeed. What next? Secret votes for declarations of war? Budgets? Everything?

      I suppose you could make a case for secret votes – perhaps to approve a secret treaty to co-develop the A-bomb with the British in 1943 or something. But doing so merely to avoid the displeasure of the voters is about as far from democratic principles as you can get. Conducting the public business in public, precisely so the voters can base future votes on that conduct is the very core of democracy.

      1. Most of them only believe in Democracy when Democracy agrees with them.
        If Democracy disagrees then Democracy is wrong.

    3. Yes. It’s a truly insane idea — a secret vote to shield senators from the wrath of their own voters!!!??? WTF?

  10. “Rule IV, Paragraph l(d)

    “[Journal of Proceedings of Impeachment Trial]

    “The legislative, the executive, the confidential legislative proceedings, and the proceedings when sitting as a Court of Impeachment, shall each be recorded in a separate book.”

    https://www.govinfo.gov/content/pkg/GPO-RIDDICK-1992/pdf/GPO-RIDDICK-1992-69.pdf

    (p. 866)

  11. Another problem, maybe.

    Article 1, Section 5 is pretty clear, except that some folks here have blurred it a bit.

    Also clear? Article 1, Section 3: “The Senate shall have the sole Power to try all Impeachments.” So what authority other than the Senate can make that decision? If the Senate decides secrecy is the way to go, does the Supreme Court (or anyone), have Constitutional power to set an impeachment aside for doing it wrong?

    Plus, of course, a little farther down in Article 1, Section 3: “And no Person shall be convicted without the Concurrence of two-thirds of the Members present.” Seems like that adds at least a bit of weight on behalf of a non-secret vote. There would be considerable confusion and hell to pay if, after a secret vote, senators started lying about how they had voted, and no one could discern from what they said that the two-thirds requirement had actually been met.

    1. “If the Senate decides secrecy is the way to go, does the Supreme Court (or anyone), have Constitutional power to set an impeachment aside for doing it wrong?”

      I’d say no, because judicial review doesn’t apply to situations where the Senate is itself acting as a court. In such situations, challenges to the Senate’s power would be considered by the Senate itself, just as the Supreme Court decides questions of the Supreme Court’s power.

      The only questions, IMHO, to ask on judicial review are: (a) Did the House vote articles of impeachment, (b) did the Senate convict on at least one of the articles, and (c) was the punishment constitutionally authorized (i. e., limited to restrictions on officeholding rights)?

      1. Are you forgetting the Chief Justice presides over the trial and it’s probably up to him to make such a ruling, perhaps subject to reversal by the entire Senate.

        1. The question I addressed was:

          “If the Senate decides secrecy is the way to go, does the Supreme Court (or anyone), have Constitutional power to set an impeachment aside for doing it wrong?”

      2. If this interpretation is correct the Supreme Court wouldn’t overturn the impeachment, they’d merely require publishing the vote, which shouldn’t be difficult for them to accomplish in the face of refusal since the Chief Justice presides over the trial.

        1. Presumably the Supreme Court could indeed set aside an impeachment/removal from office for ‘doing it wrong’, but doing it wrong would have to be something like not getting 2/3 of the votes and declaring the president removed from office. Perhaps some other forms of skulduggery would also qualify to overturn the trial, I’m not sure, but not merely voting in secret.

  12. While this is enlightening about the public articles of the Constitution, how do we know what the secret Trump rules codicil of the Constitution says?

    I’m pretty sure it says a secret vote is mandatory.

    To sum it up, we have secret witnesses that can’t be heard, we have secret hearings that can’t be disclosed, we have secret testimony that can’t be heard, and now we need a secret vote to decide on all the secret evidence.

  13. If you really want to get into the weeds, and McConnell is on board with removing Trump dirty, and doesn’t care if it means his retirement, there are ways.

    First, conviction is by 2/3 vote of those PRESENT. Convene the Senate with few enough Republicans present, and Trump can be convicted by only Democratic Senators.

    Second, with few enough Republicans present, there wouldn’t be enough to force a recorded vote.

    At this point we’re still nominally within the rules, so Roberts probably wouldn’t object.

    Third, once you’re not bothering with a recorded vote, you can even skip the bare majority, and just operate by voice votes to avoid any roll call exposing the absence of a quorum. Yes, the Senate has a history of doing this sort of thing, taking actions with as few as three members present. Bob Dole was notorious for cooperating with the Democrats in doing this.

    Now, Roberts would probably draw the line at something like that, as well as complain about being rousted out of bed at 2AM.

    So, they do it without him present, and count on him declaring it a political matter, non judiciable. They’d have the enrolled bill rule on their side. I think there’s a good chance he’d vote to let them get away with it, in return for being invited to all the good parties.

    1. First, conviction is by 2/3 vote of those PRESENT. Convene the Senate with few enough Republicans present, and Trump can be convicted by only Democratic Senators.

      Let’s not give Antifa and the peaceful Left any ideas.

      1. Rep. Scalise will tell you it’s a bit late for them to not be getting that idea.

  14. Would the Chief Justice, presiding over the trial, allow a secret vote?
    Isnt that the only reason the CJ is involved? Rule on housekeeping items like this?

    President Trump would refuse to leave office, as there exists no demonstrable proof, 2/3 voted for impeachment.

    Now what? Federal Marshall’s, in a gun fight with Secret Service? What law enforcement is under the Article I powers of Congress? What law enforcement is under Article II powers of the Executive?
    Which branch of govt has more guns?

    The peaceful transfer of power used to be the Hallmark of the United States. Transparency is why. Even entertaining talk of secret impeachment votes is seditious.

    We haven’t even gotten to the peoples response.

    1. Because each house controls the rules of its own proceedings. Jury votes are secret. It’s not as if there is no precedent for secret votes in trials. If the Senate wants to conduct deliberations like a jury, that’s its business.

      1. Jury votes are secret.

        Juries are also populated by unelected private citizens.

        1. The fact you think the Senate should do something doesn’t mean it has to.

    2. The whole argument the past few weeks has been about doing this in the open so you can gain the peoples’ confidence no funny business is going on, and they can trust the results of such a serious process to overturn their vote. That’s also the point of a supermajority in the senate, to get buy in from the many of the president’s supporters, and not just opposition, to show it’s a real problem and not just politics.

      The reason for secret ballots in normal elections is precisely so voters can’t be held accountable or intimidated. That’s the opposite of what you want in this process.

      I’ve got hundreds of examples around the world and in recent history for those who like government operating in secret and telling you the results later, to go live in.

      1. “The whole argument the past few weeks has been about doing this in the open so you can gain the peoples’ confidence no funny business is going on, and they can trust the results of such a serious process to overturn their vote.”

        Yeah, you didn’t actually think they meant any of that, did you? They just want to get rid of Trump, literally no matter what it takes.

      2. But that’s a policy argument that it would be best if Congress act a certain way, not a legal argument that it must act that way even if it doesn’t want to.

    3. “Would the Chief Justice, presiding over the trial, allow a secret vote?”

      He is going to defer to the Senate majority.

      1. That’s my take on it: So long as they don’t do anything obviously unconstitutional, like try to hold votes without a quorum present, or convict Trump on a majority vote, he’s just going to let them do what they want.

        And he’s going to be pretty lenient about what constitutes that quorum “being present”, too.

  15. Professor Volokh,

    Congress has maintained a secret journal from its inception. It has passed secret laws before, and secret laws get entered on the secret journal. They have to be because you need a written record of laws.

    What you’re suggesting here seems to go against established practice as well as what the text says. If laws can be entered on the secret journal, why in the world can’t impeachment votes be?

    https://www.baumanrarebooks.com/rare-books/constitution-madison-james/secret-journals-of-the-acts-and-proceedings-of-congress-with-journal-acts–/77570.aspx

    1. Seems irrelevant to me unless you have some information that 1/5 of the senators voted to to have the votes recorded.

      1. The issue here is Professor Volokh is arguing that 1/5 of senators can force the yeahs and nays to be publicized. But the text says only that 1/5 of votes forces recording the yeahs and nays on the journal.

        And the longstanding practice of secret journals means that recording on the journal and making public are two separate acts. Doing one does not mean doing the other. If 1/5 of the senators can force recording The yeahs and maya on the journal, the senate can then vote to exercise its judgment to keep the portion of the journal containing the vote secret. And this vote is a separate vote. It can be done with a simple majority of the Senators.

  16. I think even if it’s legal to have a secret ballot, it’s a horrible idea. This process has already been shielded in entirely too much secrecy. If we’re going to remove a sitting President from office, the entire proceedings AND vote should be public. The Senators and Representatives aren’t exercising their personal vendetta against Trump, they’re acting as OUR representatives and we have a right to know what’s going on.

  17. How do we know a secret vote would work against Trump? Republican Senators could expect a backlash against Republicans in general and general damage to Relublican election prospects if Trump is removed even if there votes aren’t specifically known – assuming the voting record doesn’t leak anyway.

    If it’s secret someone like Susan Collins could vote against removal and then go on TV saying, ‘I voted to remove Trump, but obviously the evidence wasn’t enough to convince all my colleagues and he’s still in office. So let’s move on to the current election.’ Without having to face Democrats accusing her of siding with a criminal or Republicans holding her responsible for removing their President.

    1. We know it would work against Trump, because Republican Senators (Who are the majority of the chamber.) need the votes of Republicans, not Democrats, to get reelected. And Trump is very popular with Republicans.

  18. Though all it takes is one Senator out of a hundred who sees political advantage in leaking the vote and/or feels the public has a right to know the vote to leak it, so it seems likely it would be leaked and the voters would expect it to be leaked.

    1. It’s not like this is some mostly* non-partisan secret project or espionage bill or something where there’s little advantage to leaking and there’s pretty clear and solid reason for keeping it secret. (And that kind of thing can still get leaked, but at least you wouldn’t assume it would be immediately leaked as a matter of course)

      *nothing is completely non-partisan, but some things are way on the other side of the spectrum from removing the President from office.

    2. If you actually got 81 Senators behind it, you could just give Senators two colored balls and have them vote by dropping a ball in a sealed urn and the other ball in a sealed discard urn. IIRC, that’s how juries in classical Athens voted. Then: no leaks, because no one would know how any other individual Senator voted.

      1. Although there might be some questions about why there were 103 black balls in the convict urn…

  19. Even under your reading, the threshold isn’t 81 Senators, the threshold is 4/5 of those present.

    Quorum for the Senate is a simple majority – 51 members.

    If 51 members are present only 41 need to support making the vote secret.

  20. Whatever the law may be, I suspect the real world answer is that the Senate will do whatever a majority of the Senate wishes to do, and the chances for judicial review are between slim and none.

  21. Very cool that the dangers of secrecy was covered — and that it only takes 20% to keep proceedings open.

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