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.