Should SCOTUSblog Get a Credential? (Or Everything You Always Wanted to Know About the Congressional Press Galleries But Were Afraid to Ask)

SCOTUSblog has filed this letter with the Standing Committee of Correspondents regarding the Standing Committee’s decision not to renew Lyle Denniston’s membership in the congressional Press Galleries. Although the Standing Committee only determines whether an applicant may be admitted to the House and Senate Press Galleries, such admission is apparently required before Denniston can obtain a Supreme Court credential, which is his main objective. For a thorough and interesting discussion of the background of this matter, see this article, which asks “Why Can’t SCOTUSblog Get a Credential?,” by Jonathan Peters in the Columbia Journalism Review.

To answer this question, we need to take a closer look at the rules governing the press galleries, such as they are. As Peters notes, there are actually four types of press galleries: (1) the Press Galleries (which we will refer to as the “Daily Press Galleries” for clarity’s sake); (2) the Periodical Press Galleries; (3) the Radio and Television Correspondents’ Galleries; and (4) the Press Photographers’ Gallery. The photographers’ gallery is different than the others because it is a single gallery, authorized only by the Senate Committee on Rules and Administration (hereinafter “the Senate Rules Committee”), with no counterpart in the House.

Denniston is applying for admission to the Daily Press Galleries, which are set aside for newspapers and other news organizations that publish daily. The Daily Press Galleries consist of a House Gallery and a Senate Gallery. Each is separately authorized under House and Senate Rules and each has a separate staff. However, they are jointly administered by the Standing Committee, and there is a single set of rules and a single admissions process for both galleries. The Standing Committee’s authority comes from the House and Senate Rules, and it is ultimately subject to the direction and control of the Speaker, with regard to the House Gallery, and the Senate Rules Committee, with regard to the Senate Gallery.

The Periodical Press Galleries and the Radio and Television Correspondents’ Galleries also consist of separate House and Senate Galleries, but, like the Daily Press Galleries, each has a single administrative body, a single set of rules and a single admissions process. The Periodical Press Galleries, for example, admit journalists employed by “periodicals that regularly publish a substantial volume of news material of either general, economic, industrial, technical, cultural, or trade character.” They are governed by the Periodical Press Gallery Rules and overseen by the Executive Committee of the Periodical Correspondents’ Association.

Why is it necessary to have four different types of press galleries, including a separate administrative body and rules for daily versus periodical reporters? Maybe there is a good reason, but I suspect the answer is the same one that explains why there is still a National Information Technology Service.

In any event, that is the overview of the congressional press galleries: seven galleries, seven sets of staff, four administrative bodies, four sets of rules, and two political overseers. All to govern a population the size of a large public high school. Welcome to Washington.

Now let’s examine the rules that govern Denniston’s application.

Press Gallery Rules 

The Press Gallery Rules may be found on the website of the Senate Daily Press Gallery, but it might not be obvious why these rules are binding on anyone. The apparent basis for their authority is that they have been issued jointly by Speaker John Boehner and Senator Charles Schumer, Chair of the Senate Rules and Administration Committee. At least that is what is implied by the fact that their names appear at the bottom of the rules as published in the latest version of  Congressional Directory for the 113^th Congress (see page 976). In Consumers Union v. Periodical Correspondents’ Association, 515 F.2d 1341 (D.C. Cir. 1975), the D.C. Circuit treated publication in the Congressional Directory as evidence the press gallery rules had been jointly adopted by the House and Senate. It also declared immaterial the fact that there were slight differences between the version of the rules published in the Congressional Directory and the version adopted by the Senate Rules Committee and published in the Senate Manual. We will come back to that in a minute.

Paragraph 2 of the Gallery Rules declares: “Persons desiring admission to the press galleries of Congress shall make application in accordance with Rule VI of the House of Representatives, subject to the direction and control of the Speaker and Rule 33 of the Senate, which rules shall interpreted and administered by the Standing Committee of Correspondents, subject to the review and an approval [sic] by the Senate Committee on Rules and Administration.”

Aside from typographical errors, this paragraph is confusing in that it suggests that the Senate Rules Committee plays some role in overseeing the Standing Committee’s interpretation of House Rule VI. I doubt, however, that this was the intent of the drafters. Instead, it appears that Paragraph 2 represents a garbled attempt to take the language of the press gallery rules codified in the Senate Manual, which refers solely to Senate Rule XXXIII, and broaden it to include both the House and Senate Rules. The same thing was done, albeit more successfully, in Paragraph 5 of the Periodical Press Gallery Rules.

Although the Gallery Rules do not explicitly provide a right of appeal from the decision of the Standing Committee, Paragraph 2 provides a basis for a disappointed applicant to seek review by the Speaker and Senate Rules Committee. As a practical matter, either the Speaker or the Senate Rules Committee could reverse the decision of the Standing Committee and direct that a particular applicant be admitted. There is, however, nothing requiring either to take any action on an appeal.

Paragraph 3 of the Gallery Rules provides: “The Standing Committee of Correspondents shall limit membership in the press galleries to bone fide [sic] correspondents of repute in their profession, under such rules as the Standing Committee of Correspondents shall prescribe.”

This provision is also puzzling (again, typos aside) for two reasons. First, the House and Senate rules pretty clearly provide that the rules for admission to the press gallery are to be set by the Speaker and the Senate Rules Committee respectively. See House Rule VI (2)(“Reputable reporters and correspondents shall be admitted . . . under such regulations as the Speaker may prescribe from time to time.”); Senate Rule XXXIII(2) (“The Committee shall make such regulations respecting the reporters’ galleries of the Senate . . . as will confine their occupancy and use to bona fide reporters of newspapers and periodicals, and of news or press associations for daily news dissemination through radio, television, wires, and cables, and similar media of transmission.”). Thus, it is questionable whether the Standing Committee can be delegated the authority to make, as opposed to enforce, these regulations.

Second, the Gallery Rules themselves provide the criteria for admission. It therefore seems odd that they would simultaneously purport to delegate to the Standing Committee the authority to determine such criteria.

This second mystery can be explained. As originally drafted (and as still written in the Senate Manual), the provision delegating authority to the Standing Committee was immediately followed by the words “Provided, however,” and a list of requirements that all applicants must satisfy. It is thus clear that the Gallery Rules, at least as originally drafted, set forth the minimum requirements for membership in the Daily Press Galleries, while empowering the Standing Committee to prescribe further qualifications.

Paragraph 4 of the Gallery Rules sets forth the criteria for applications. There are requirements for both the applicant and for the applicant’s employer. The applicant must establish that he or she (1) is a full-time, paid correspondent; (2) requires on-site access to congressional members and staff; (3) resides in the Washington, D.C. area; and (4) does not engage in lobbying or similar activities.

In addition, the applicant’s employer must (1) be a “news organization;” (2) either (a) have certain mailing privileges under the U.S. postal service rules and publish daily or (b) have as its “principal business” the “daily dissemination of original news and opinion of interest to a broad segment of the public”, and have published continuously for 18 months; and (3) be “editorially independent of any institution, foundation or interest group that lobbies the federal government, or that is not principally a general news organization.”

As we will see, applying these criteria to Denniston’s application is not all that easy, but before we get to that there is another problem. Unlike the situation in Consumers Union, the version of the Gallery Rules published in the Congressional Directory is not essentially the same as the version published in the Senate Manual. The two versions were very similar until July 2005, when there were substantial changes made to the Congressional Directory version. But no changes were made in the Senate Manual version, which was last published in 2012 (a new edition of the Senate Manual should be coming out in 2014, but it is not yet available, at least online) in the section entitled “Rules for Regulation of the Senate Wing of the United States Capitol and Senate Office Buildings.”

The Congressional Directory version of the Gallery Rules (though not the one published on the website) states that “[t]he above rules have been approved by the Committee on Rules and Administration.” Now perhaps this means that the 2005 changes to the rules were approved by the Senate Rules Committee, and the Senate Manual for some reason has not been properly updated. However, the approval language was also in the pre-2005 Congressional Directory, and it is possible that this language merely remained in the text and does not reflect any new approval by the committee. At this point it is hard to say.

Note that this is not a problem with respect to the House. Assuming that the Congressional Directory version was approved by the Speaker, it would seem to comply with the requirements of House Rule VI and therefore be the governing regulation as to the House Gallery.

The Senate Manual version of the rules requires that any applicant establish “[t]hat his or her principal income is obtained from news correspondence intended for publication in newspapers entitled to second-class mailing privilege.” This would seem to make it difficult for Denniston, or anyone who is published primarily on the internet, to qualify. I am not sure how to square this criteria, which was also in the Congressional Directory version until 2005, with the claim on the Senate Daily Press Gallery website that “[i]n 1996, the gallery adopted standards that treated Web-based reporters essentially the same as it treated print reporters.”

Another perspective is provided by this 2009 report that “online publications are proving a credentialing challenge for all press galleries on the Hill, with traditional assessment criteria not always keeping up with new media.” The report explains that the Daily Press Galleries had admitted correspondents from the Huffington Post on the theory that its “stories were frequently picked up in daily publications.” This sounds like an effort to stretch the terms of the pre-2005 rules to cover some online publications. It seems reasonable to suppose that the 2005 changes to the Congressional Directory version of the Gallery Rules were designed to make it easier for internet publications to qualify for admission.

To make matters more complicated, the Standing Committee has developed, but not published, at least one guidance document that significantly glosses the rules. These guidelines, which are reproduced in the Peters article, were apparently adopted in 2005, around the same time as the formal rules were being changed. One provision of particular relevance to Denniston’s case states that “[f]actors to be considered in determining the eligibility of a news organization for credentialing may include whether its principal revenue comes from readership support through subscriptions or advertising.” The formal Gallery Rules, both before and after 2005, do not contain any such requirement. In contrast, the Periodical Press Gallery Rules explicitly refer to “a periodical that is published for profit and is supported chiefly by advertising or by subscription.”

Another interesting provision of the 2005 guidelines, although not apparently relevant to Denniston’s application, states that “[t]he lobbying prohibition in the rule is not intended to preclude routine representations to Congress by news media companies in the normal course of their business, or to preclude press efforts to defend First Amendment rights, protect freedom of information or to weigh in on other matters related to reporters’ ability to cover the news.” It should be noted that prior to 2005, the Gallery Rules only addressed lobbying by the applicant, not by the applicant’s employer. The 2005 revisions purport to require the employing publication to be editorially independent of any institution that lobbies, but the guidelines then allow “routine representations” to Congress by news media companies “in the normal course of their business,” whatever that means. Apparently, the Standing Committee wants to prohibit some form of “bad lobbying,” which is defined as something other than what their employers actually do.

The 2005 guidelines might also be read as relaxing the prohibition against lobbying by members of the Daily Press Galleries themselves. This may not have been the intent, but one can see how the guidelines could be read in that way.

 

Applying the Gallery Rules to Denniston

Interestingly, the SCOTUSblog letter does not cite to any specific language of the Gallery Rules or any other authority. Instead, it cites “concerns” it understands the Standing Committee has with aspects of Denniston’s application. Three concerns are identified: (1) SCOTUSblog’s need for onsite access to the Senate: (2) SCOTUSblog’s independence from Goldstein & Russell (Tom Goldstein’s law firm); and (3) the source of SCOTUSblog’s financial support.

I don’t know if these are the only concerns the Standing Committee has, but it seems to me that there is at least one other question that might arise. Is SCOTUSblog a “news organization” whose “principal business is the daily dissemination of original news and opinion of interest to a broad segment of the public”?

My understanding of SCOTUSblog is that it primarily produces analysis and opinion regarding pending Supreme Court cases. Whether it produces “original news” on a daily or regular basis is unclear to me. If not, does it qualify merely based on producing “opinion” on a daily basis? I assume that legal opinion blogs like The Volokh Conspiracy would not qualify for a press credential merely because they produce opinion on a daily basis.

Keep in mind that the pre-2005 Gallery Rules, and the version of the rules contained in the latest Senate Manual, appear to limit accreditation to reporters who principally produce material for daily newspapers. The 2005 revisions to the rules loosen this limitation, but they still fall short of explicitly endorsing online publications or providing standards that are useful for determining which websites deserve credentialing. Then-Senator Kerry recognized as much in a 2009 hearing when he declared that “[w]e ought to make sure that the rules for credentializing congressional reporters are modernized” to account for online journalists who cover Congress. See also Ryan Witte, “It’s My News Too! Online Journalism and Discriminatory Access to the Congressional Periodical Press Gallery,” 12 Yale J.L.&Tech. 208 (2010) (arguing that press gallery rules should be changed to accommodate the credentialing of more online journalists).

The Standing Committee therefore has a difficult task in deciding which online publications ought to be recognized under the existing rules. Some cases, such as the  Huffington Post or Politico, may be easy, but categorizing a site like SCOTUSblog and determining on which side of a fairly vague line it falls is another matter.

With regard to the specific issues discussed in the SCOTUSblog letter, the blog’s biggest vulnerability seems to be the claim that Denniston needs onsite access to Senators and staff. The letter makes a valiant attempt at listing all the ways in which the blog covers Congress, but the only concrete example of a need for onsite access relates to sporadic attendance at congressional hearings, particularly confirmation hearings for Supreme Court nominees. However, the occasions on which Denniston would need a press credential to cover such hearings seem sufficiently rare that they could be handled with temporary credentials. And the letter does not point to any specific instances in which Denniston interviewed or quoted Members or staff, suggesting that this is at most an infrequent need.

It is apparent that Denniston and SCOTUSblog are mainly interested in getting credentials to cover the Supreme Court, and the Court has made congressional press credentials a prerequisite to gaining this privilege. SCOTUSblog would seem to have a legitimate complaint if its access to the Court is denied simply because it fails to satisfy a requirement of obtaining congressional press credentials that is irrelevant to covering the Court, but its complaint is not with Congress or the Standing Committee.

SCOTUSblog has a stronger position on the other two issues. The Gallery Rules seem to require that SCOTUSblog be editorially independent of Goldstein’s law firm (because it is not news organization), but the blog points to a variety of policies it has put in place to ensure such independence. It also has policies to protect against conflict of interest generally in its reporting on Court cases; these may not be necessary to satisfy the Gallery Rules but they tend to bolster confidence that the blog is administered in professional and ethical manner.

Finally, there is the question of whether SCOTUSblog is sufficiently supported by advertising. This requirement is not in the Gallery Rules, but in the 2005 guidelines, which state that “[f]actors to be considered in determining the eligibility of a news organization for credentialing may include whether its principal revenue comes from readership support through subscriptions or advertising.” SCOTUSblog apparently gets all of its revenue from a “sponsorship” by Bloomberg Law, in exchange for which Bloomberg Law gets certain benefits, including advertising space on the website.

Presumably the advertising issue goes at least in part to the question of whether SCOTUSblog publishes material “of interest to a broad segment of the public,” as required by the Gallery Rules. The fact that Bloomberg Law is willing to pay for a sponsorship seems like some indication that this is the case, although perhaps not as much as if advertisers were buying space at market rates. Moreover, the guidelines only indicate that advertising may be a factor to be considered, not that it is an absolute requirement. Here SCOTUSblog has presented other indicia, such as numbers of unique visitors to the site (nearly 60,000 per day during peak periods), subscribers to its RSS feed, Twitter followers, etc., that substantiate the fact that its publication is of interest to a broad segment of the public.

All in all, I would say that SCOTUSblog has a plausible, but not overwhelming, case for credentialing Denniston. Assuming that the blog qualifies as a “daily” news organization within the meaning of the Gallery Rules, the biggest hurdle is whether Denniston has a need for onsite access to members and staff. IMHO, it has not made that case yet.

Peters, on the other hand, believes that SCOTUSblog has demonstrated that the credentials should be issued. He acknowledges, however, that the merits of the application are “complicated” and whether the blog qualifies under the Gallery Rules is “not self-evident.” His main criticism of the Standing Committee is its lack of transparency in denying the credentials, particularly its reluctance to give a list of specific reasons for the denial.

This is a longstanding criticism of the congressional press galleries. Disgruntled applicants, going back at least to Consumers Union, invariably complain that the process is secretive and arbitrary, and they often suggest that the press representatives who rule on applications are motivated by a desire to keep out potential competitors. Indeed, the district court in Consumers Union agreed with these criticisms, stating:

Under a broad, generalized congressional delegation, authority has been given certain newsmen to prevent other newsmen from having access to news of vital consequence to the public.  As a result, a group of established periodical correspondents have undertaken to implement arbitrary and unnecessary regulations with a view to excluding from news sources representatives of publications whose ownership or ideas they consider objectionable.  Responsible officials of the House and Senate have not forestalled such discrimination by promulgating clear eligibility requirements, nor apparently have they developed any other means of checking abuse of the Association’s delegated authority.

Consumers Union of United States, Inc. v. Periodical Correspondent’s Ass’n, 365 F.Supp. 18, 26 (D.D.C. 1973) (citation omitted). Mr. Schreibman, too, complained that the Executive Committee failed to give a reason for its denial and that its actions were arbitrary and made in bad faith. See also 2009 Report at 24 (“ But the accreditation process has proven controversial in the past, with some of those refused accreditation, or refused renewal of previous accreditation, complaining it is secretive, subjective and unfair.”)

Now don’t get me wrong. I would be as happy as the next guy to slam the Standing Committee of Correspondents as an incestuous cabal of lamestream media insiders seeking to preserve their privileged status. But in all candor, I am not sure that the process really admits of much more transparency. The decision whether employees of a particular publication can be accredited is not simply a matter of checking off a list of requirements. There is a degree of subjectivity inherent in the process, and more so when the publication is of a type unknown when the congressional rules were drafted. There may be instances where a publication arguably meets all of the requirements, but there is enough doubt about several of them that the Standing Committee is unwilling to extend accreditation. Or different members of the Standing Committee may have different reasons for rejecting a particular application.

Providing written reasons for its decision might increase the Standing Committee’s workload considerably, and it would inevitably increase the pressure on the Speaker and Senate Rules Committee to get involved in particular applications. It also would likely lead to more litigation, something that the press galleries are understandably interested in avoiding.

There are, however, a couple of things that could be done to improve the process. First, the Periodical Press Gallery has regulations explicitly giving an initially rejected applicant the right to a public hearing before the Executive Committee. I don’t know if the Standing Committee routinely grants such hearings, but if it does not, it could improve the transparency of the process by doing so.

Second, the press galleries in general, and the Standing Committee in particular, could develop rules that explicitly address applications from online journalists. Better yet, they could publish these new rules (with the approval of the Speaker and the Senate Rules Committee) in both the Congressional Directory and Senate Manual, so that there is no confusion as to what rules apply.

 

SCOTUSblog’s Potential Remedies

Goldstein has indicated that if the Standing Committee fails to renew Denniston’s credentials, SCOTUSblog will appeal to the Senate Rules Committee and possibly initiate litigation.

As already noted, the Speaker and Senate Rules Committee have ultimate control over the press galleries in their respective chambers and therefore can overrule the Standing Committee’s decision if they wish. If either chose to do so, it seems likely that the Standing Committee would admit Denniston to both galleries. Therefore, SCOTUSblog might as well appeal to both.

On the other hand, it is virtually unheard of for either the Speaker or the Senate Rules Committee to intervene in these matters. Reportedly, the Senate Rules Committee once directed that representatives of the Voice of America be admitted to the Radio and Television Correspondents’ Galleries, but this would not be much of a precedent for intervening on behalf of a private applicant. In most cases, “appeals” by disgruntled applicants are simply ignored by the Speaker and Senate Rules Committee, who have more important things to do with their time. There is no requirement that any action be taken or that the appeals even be acknowledged.

What about the possibility of going to court? As we have discussed, the D..C. Circuit held in Consumers Union, and re-affirmed in the Schreibman case, that credentialing decisions by the congressional press committees were non-justiciable under the Rules of Proceedings and Speech or Debate Clauses. Thus, it would seem that the chances of successfully suing the Standing Committee would be very slim.

The potential conflict between the Congressional Directory and Senate Manual version of the rules does raise some doubt about this, however. The D.C. Circuit’s decisions were based on the presumption that the rules governing admission to the press galleries were approved by the Speaker and Senate Rules Committee. But if there is uncertainty as to which version of the rules has been approved by the Senate Rules Committee, there is an opening that a skillful lawyer like Goldstein might be able to exploit. Of course, his position would be stronger if the other version of the rules (i.e., the one published in the Senate Manual) were more favorable to Denniston’s admission; unfortunately, the reverse is true.

There is another possible difference between the legal postures of the House and Senate. The House adopted its rules every Congress and therefore Rule VI, authorizing the Speaker to adopt regulations governing the press galleries, seems unquestionably valid. Moreover, at the time the rule was adopted, the House would have been on notice of the existing practices with regard to regulation of the press galleries and presumably it understood that the Speaker had approved the existing Gallery Rules and would likely continue to do so.

Senate rules, on the other hand, are not adopted each Congress. I am not sure when the Senate last formally adopted its entire set of rules, though I think it may have been in the late 1970s. In any event, it was before the Chair of the Senate Rules Committee approved the 2005 revisions to the Gallery Rules. Now this should not matter if the Senate rules are continuing in nature and if the approval of the 2005 revisions was in compliance with Senate Rule XXXIII. But if one subscribes to the notion that the Senate rules do not continue from one Congress to another, a proposition arguably endorsed by the Senate when it exercised the “nuclear option,” it might be argued that the Standing Committee’s Senate authority has long lapsed.

Well, I wouldn’t place any bets on these arguments winning in court, but I thought I would flag them nonetheless. Of course, there is a much more straightforward way for SCOTUSblog to avoid the holding of Consumers Union.  Instead of suing the Standing Committee, it could sue the Supreme Court (or whatever office of the Court is responsible for issuing press credentials). I imagine there are other problems with that approach, though.

Notwithstanding the room for legal maneuvering, therefore, it will be the Standing Committee that in all likelihood that makes the final decision on Denniston’s credentials.