[Congressional Record Volume 145, Number 23 (Tuesday, February 9, 1999)]
[Senate]
[Pages S1406-S1409]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  ON THE MOTIONS TO OPEN TO THE PUBLIC THE FINAL DELIBERATIONS ON THE 
                        ARTICLES OF IMPEACHMENT

 Mr. LEAHY. In relation to the earlier vote, I have these 
thoughts. Accustomed as we and the American people are to having our 
proceedings in the Senate open to the public and subject to press 
coverage, the most striking prescription in the ``Rules of Procedure 
and Practice in the Senate when Sitting on Impeachment Trials'' has 
been the closed deliberations required on any question, motion and now 
on the final vote on the Articles of Impeachment.
  The requirement of closed deliberation more than any other rule 
reflects the age in which the rules were originally adopted in 1868. 
Even in 1868, however, not everyone favored secrecy. During the trial 
of President Johnson, the senior Senator from Vermont, George F. 
Edmunds, moved to have the closed deliberations on the Articles 
transcribed and officially reported ``in order that the world might 
know, without diminution or exaggeration, the reasons and views upon 
which we proceed to our judgment.'' [Cong. Globe Supp'l, Impeachment 
Trial of President Andrew Johnson, 40th Cong., 2d Sess., vol. 4, p. 
424.] The motion was tabled.
  In the 130 years that have passed since that time, the Senate has 
seen the advent of television in the Senate Chamber, instant 
communication and rapid news cycles, distribution of Senate documents 
over the Internet, the addition of 46 Senators representing 23 
additional States, and the direct election of Senators by the people in 
our States.
  Opening deliberations would help further the dual purposes of our 
rules to promote fairness and political accountability in the 
impeachment process. I supported the motion by Senators Harkin, 
Wellstone and others to suspend this rule requiring closed 
deliberations and to open our deliberations on Senator Byrd's motion to 
dismiss and at other points earlier in this trial. We were 
unsuccessful. Now that we are approaching our final deliberations on 
the Articles of Impeachment, themselves, I hope that this secrecy rule 
will be suspended so that the Senate's deliberations are open and the 
American people can see them. In a matter of this historic importance, 
the American people should be able to witness their Senators' 
deliberations.
  Some have indicated objection to opening our final deliberations 
because petit juries in courts of law conduct their deliberations in 
secret. Analogies to juries in courts of law are misplaced. I was 
privileged to serve as a prosecutor for eight years before I was 
elected to the Senate. As a prosecutor, I represented the people of 
Vermont in court and before juries on numerous occasions. I fully 
appreciate the traditions and importance of allowing jurors to 
deliberate and make their decisions privately, without intrusion or 
pressure from the parties, the judge or the public. The sanctity of the 
jury deliberation room ensures the integrity and fairness of our 
judicial system.
  The Senate sitting as an impeachment court is unlike any jury in any 
civil or criminal case. A jury in a court of law is chosen specifically 
because the jurors have no connection or relation to the parties or 
their lawyers and no familiarity with the allegations. Keeping the 
deliberations of regular juries secret ensures that as they reach their 
final decision, they are free from outside influences or pressure.
  As the Chief Justice made clear on the third day of the impeachment 
trial, the Senate is more than a jury; it is a court. Courts are called 
upon to explain the reasons for decisions.
  Furthermore, to the extent the Senate is called upon to evaluate the 
evidence as is a jury, we stand in different shoes than any juror in a 
court of law. We all know many of the people who have been witnesses in 
this matter; we all know the Republican Managers--indeed, one Senator 
is a brother of one of the Managers; and we were familiar with the 
underlying allegations in this case before the Republican Managers ever 
began their presentation.
  Because we are a different sort of jury, we shoulder a heavier burden 
in explaining the reasons for the decisions we make here. I appreciate 
why Senators would want to have certain of our deliberations in closed 
session: to avoid embarrassment to and protect the privacy of persons 
who may be discussed. Yet, on the critical decisions we are now being 
called upon to make our votes on the Articles themselves, allowing our 
deliberations to be open to the public helps assure the American people 
that the decisions we make are for the right reasons.

  In 1974, when the Senate was preparing itself for the anticipated 
impeachment trial of former President Richard Nixon, the Committee on 
Rules and Administration discussed the issue of allowing television 
coverage of the Senate trial. Such coverage did not become routine in 
the Senate until later in 1986. In urging such coverage of the possible 
impeachment trial of President Nixon, Senator Metcalf (D-MT), 
explained:

       Given the fact that the party not in control of the White 
     House is the majority party in the Senate, the need for 
     broadcast media access is even more compelling. Charges of a 
     `kangaroo court,' or a `lynch mob proceeding' must not be 
     given an opportunity to gain any credence whatsoever. 
     Americans must be able to see for themselves what is 
     occurring. An impeachment trial must not be perceived by the 
     public as a mysterious process, filtered through the 
     perceptions of third parties. The procedure whereby the 
     individual elected to the most powerful office in the world 
     can be lawfully removed must command the highest possible 
     level of acceptance from the electorate.'' (Hrg. August 5 and 
     6, 1974, p. 37).

  Opening deliberation will ensure complete and accurate public 
understanding of the proceedings and the reasons for the decisions we 
make here. Opening our deliberations on our votes on the Articles would 
tell the American people why each of us voted the way we did.
  The last time this issue was actually taken up and voted on by the 
Senate was more than a century ago in 1876, during the impeachment 
trial of Secretary of War William Belknap. Without debate or 
deliberation, the Senate refused then to open the deliberations of the 
Senate to the public. That was before Senators were elected directly by 
the people of their State, that was before the Freedom of Information 
Act confirmed the right of the people to see how government decisions 
are made. Keeping closed our deliberations is wholly inconsistent with 
the progress we have made over the last century to make our government 
more accountable to the people.
  Constitutional scholar Michael Gerhardt noted in his important book, 
``The Federal Impeachment Process,'' that ``the Senate is ideally 
suited for balancing the tasks of making policy and finding facts (as 
required in impeachment trials) with political accountability.'' Public 
access to the reasons each Senator gives for his vote on the Articles 
is vital for the political accountability that is the hallmark of our 
role.
  I likewise urge the Senate to adjust these 130-year-old rules to 
allow the Senate's votes on the Articles of Impeachment to be recorded 
for history by news photographers. This is an momentous official and 
public event in the annals of the Senate and in the history of the 
nation. This is a moment of history that should be documented for both 
its contemporary and its lasting significance.
  Open deliberation ensures complete accountability to the American 
people. Charles Black wrote that presidential impeachment ``unseats the 
person the

[[Page S1407]]

people have deliberately chosen for the office.'' ``Impeachment: A 
Handbook,'' at 17. The American people must be able to judge if their 
elected representatives have chosen for or against conviction for 
reasons they understand, even if they disagree. To bar the American 
people from observing the deliberations that result in these important 
decisions is unfair and undemocratic.
  The Senate should have suspended the rules so that our deliberations 
on the final question of whether to convict the President of these 
Articles of Impeachment were held in open session.
  I ask that following my remarks a copy of the Application of Cable 
News Network, submitted by Floyd Abrams and others, be printed in the 
Record.
  The material follows:

          IN THE U.S. SENATE SITTING AS A COURT OF IMPEACHMENT

                               __________
                               

                                 In re

   Impeachment of William Jefferson Clinton, President of the United 
                                 States

                               __________
                               


application of cable news network for a determination that the closure 
of these proceedings violates the first amendment to the united states 
                              constitution

                               __________
                               
     To: The Honorable William H. Rehnquist and The Honorable 
         Members of the U.S. Senate
       Cable News Network (``CNN'') respectfully submits this 
     application for a determination that the First Amendment to 
     the United States Constitution requires that the public be 
     permitted to attend and view the debates, deliberations and 
     proceedings of the United States Senate as to the issue of 
     whether President William Jefferson Clinton shall be 
     convicted and as to other related matters.
---------------------------------------------------------------------------
     Footnotes at end of document.
---------------------------------------------------------------------------


                              introduction

       Under Rules VII, XX and XXIV of the ``Rules of Procedure 
     and Practice in the Senate When Sitting On Impeachment 
     Trials,'' the Senate has determined to sit in closed session 
     during its consideration of various issues that have arisen 
     during these impeachment proceedings. Motions to suspend the 
     rules have failed and the debates among members of the Senate 
     as to a number of significant matters have been closed. As 
     the final debates and deliberations approach at which each 
     member of the Senate will voice his or her views on the issue 
     of whether President Clinton should be convicted or acquitted 
     of the charges made, the need for the closest, most intense 
     public scrutiny of the proceedings in this body increases. By 
     this application, CNN seeks access for the public to observe 
     those debates, as well as other proceedings that bear upon 
     the resolution of the impeachment trial. The basis of this 
     application is the First Amendment to the Constitution of the 
     United States.
       We make this application mindful that deliberations upon 
     impeachment were conducted behind ``closed doors'' at the 
     last impeachment trial of a President, in 1868. We are, as 
     well, mindful of the power of the Senate--consistent with the 
     power conferred upon it in Article I, Section 3 of the 
     Constitution--to exercise full control over the conduct of 
     impeachment proceedings held before it. In so doing, however, 
     the Senate must itself be mindful of its unavoidable 
     responsibility to adopt rules and procedures consistent with 
     the entirety of the Constitution as it is now understood and 
     as the Supreme Court has interpreted it.
       The commands of the First Amendment, we urge, are at war 
     with closed-door impeachment deliberations. If there is one 
     principle at the core of the First Amendment it is that, as 
     Madison wrote, ``the censorial power is in the people over 
     the Government, and not in the Government over the people.'' 
     4 Annals of Congress, p. 934 (1794). That proposition in turn 
     is rooted in the expectation that citizens--the people--will 
     have the information that enables them to judge government 
     and those in government. The right and ability of citizens to 
     obtain the information necessary for self-government is 
     indeed at the heart of the Republic itself: ``a people who 
     mean to be their own Governors,'' Madison also wrote, ``must 
     arm themselves with the power which knowledge gives.'' James 
     Madison, Letter to W.T. Barry, in 9 Writings of James Madison 
     103 (G. Hunt ed., 1910). As Chief Justice Warren Burger 
     observed, writing for the Supreme Court in 1980 in one of its 
     many recent rulings vindicating the principle of open 
     government: ``People in an open society do not demand 
     infallibility from their institutions, but it is difficult 
     for them to accept what they are prohibited from observing.'' 
     Richmond Newspapers,  Inc. v. Virginia, 448 U.S. 555, 572 
     (1980). Those very words could well have been written 
     about the proceedings before the Senate today.
       All agree that the impeachment of a President presents the 
     most solemn question of self-government that a free society 
     can ever confront. All should also agree that the public 
     ought to have the most complete information about each 
     decision made by the body responsible for ruling upon that 
     impeachment. Should the Senate vote to convict, a President 
     duly elected twice by the public will be removed from office. 
     Does not a self-governing public have the most powerful 
     interest in being informed about every aspect of that 
     decision and why it was taken? Should the Senate vote to 
     acquit, the President will not be removed in the face of 
     impeachment proceedings in which the majority in the House 
     branded him a criminal. Can it seriously be doubted that the 
     public possesses just as profound a right to know why?
       Only recently--and only during this century (and well after 
     the trial of Andrew Johnson)--has our commitment to the 
     principle that debate on public issues should be open become 
     not merely a nationally shared philosophy but an element 
     embedded in constitutional law as well. But deeply-rooted in 
     the law it has become. It is thus no answer to observe that 
     impeachment deliberations in the Senate were closed in the 
     nineteenth century. The Senate has a duty to consider the 
     transformation of First Amendment principles since that time 
     in determining whether it is now constitutionally permissible 
     to close impeachment deliberations on the eve of the twenty-
     first century. If, as is also true, the Senate, rather than 
     the Supreme Court, was chosen to try impeachments precisely 
     because its members are ``the representatives of the 
     nation,'' Federalist No. 65, and as such possess a greater 
     ``degree of credit and authority'' than the Supreme Court to 
     carry out the task of determining the fate of a President,\1\ 
     that ``credit and authority'' can only be brought to bear if 
     the process by which judgment is reached is open to the 
     public.


   the obligation of congress to account for and abide by the first 
                               amendment

       As we have said, we are mindful of the language of Article 
     I, Section 3, according the Senate the ``sole Power to try 
     all Impeachments.'' See Nixon v. United States, 506 U.S. 224 
     (1993) (according the Senate broad discretion to choose 
     impeachment procedures). But this very delegation of 
     authority to the Senate, a delegation that makes most issues 
     concerning impeachment rules ``non-justiciable'', see Nixon, 
     supra, also imposes on this body a very special 
     responsibility to ensure that those rules comply with 
     constitutional mandates.\2\ Congress itself--the very entity 
     against which the First Amendment affords the most explicit 
     protection \3\--is bound to abide by the First Amendment. The 
     Constitution is ``the supreme Law of the Land,'' U.S. Const., 
     art. VI, para. 2, and all ``Senators and Representatives . . 
     . shall be bound by Oath or Affirmation, to support'' it. Id. 
     para. 3. The Supreme Court has repeatedly recognized that 
     Congress is itself obligated to interpret the Constitution in 
     exercising its authority. See, e.g., Rostker v. Goldberg, 453 
     U.S. 57, 64 (1981) (``Congress is a coequal branch of 
     government whose Members take the same oath we do to uphold 
     the Constitution of the United States.''). And in 
     promulgating its rules the Congress must, of course, abide by 
     the Constitution: ``The constitution empowers each house to 
     determine its rules and proceedings. It may not by its rules 
     ignore constitutional restraints or violate fundamental 
     rights. . . .'' United States v. Ballin, 144 U.S. 1, 5 
     (1892), quoted in Consumers Union of United States, Inc. 
     v. Periodical Correspondents' Assoc., 515 F.2d 1341, 1347 
     (D.C. Cir. 1975), cert. denied, 423 U.S. 1051 (1976); see 
     Watkins v. United States, 354 U.S. 178, 188 (1957).


                   the command of the first amendment

       The architecture of free speech law--and, in particular, 
     that law placed in the context of access to information as to 
     how and why government power is being exercised--could not 
     more strongly favor the broadest dissemination of information 
     about, and comment on, government. The foundation of the 
     First Amendment is, in fact, our republican form of 
     government itself. As the Supreme Court recognized in the 
     landmark free speech decision, New York Times Co. v. 
     Sullivan, 376 U.S. 254 (1964): ``. . . the Constitution 
     created a form of government under which `[t]he people, not 
     the government possess the absolute sovereignty.' The 
     structure of the government dispersed power in reflection of 
     the people's distrust of concentrated power, and of power 
     itself at all levels. This form of government was `altogether 
     different' from the British form, under which the Crown was 
     sovereign and the people were subjects.'' Id. at 274 (quoting 
     Reporting of the General Assembly of Virginia, 4 Elliot's 
     Debates). In Sullivan, a unanimous Court determined that the 
     ``altogether different'' form of government ratified by the 
     Founders necessitated an altogether ``different degree of 
     freedom'' as to political debate than had existed in England. 
     Id. at 275 (citation omitted). It was in the First Amendment 
     that this unique freedom was enshrined and protected.
       For the Court, the ``central meaning of the First 
     Amendment,'' 376 U.S. at 273, was the ``right of free public 
     discussion of the stewardship of public officials. . . .'' 
     Id. at 275. Thus, the First Amendment ``was fashioned to 
     assure unfettered interchange of ideas for the bringing about 
     of political and social changes desired by the people.'' Roth 
     v. United States, 354 U.S. 476, 484. ``The maintenance of the 
     opportunity for free political discussion to the end that 
     government may be responsive to the will of the people and 
     that changes may be obtained by lawful means, an opportunity 
     essential to the security of the Republic, is a fundamental 
     principle of our constitutional system.'' Stromberg v. 
     California, 283 U.S. 359, 369. Id. at 269.\4\
       The decision in Sullivan related specifically to libel law. 
     But what made Sullivan so

[[Page S1408]]

     transformative--what made it, as the eminent First Amendment 
     scholar Alexander Meiklejohn remarked, cause for ``dancing in 
     the streets'' \5\--was this: it recognized (in Madison's 
     words) that ``[t]he people, not the government, possess the 
     absolute sovereignty.'' Sullivan, 376 U.S. at 274. It 
     emphasized that the First Amendment protected the ``citizen-
     critic'' of government. Id. at 282. It barred government 
     itself from seeking damages from insults directed at it by 
     its citizens. And it declared that ``public discussion is a 
     political duty.'' Id. at 270.
       In the decades following Sullivan, these notions became 
     embedded in the First Amendment--and thus the rule of law--
     through dozens of rulings of the Supreme Court. In 
     particular, and following from, the First Amendment 
     protection of public discussion is the right of the public to 
     receive information about government. The First Amendment is 
     not merely a bar on the affirmative suppression of speech; as 
     Chief Justice Rehnquist has observed, ``censorship . . . as 
     often as not is exercised not merely by forbidding the 
     printing of information in the possession of a correspondent, 
     but in denying him access to places where he might obtain 
     such information.'' William H. Rehnquist, ``The First 
     Amendment: Freedom, Philosophy, and the Law,'' 12 Gonz. L. 
     Rev. 1, 17 (1976).
       And, indeed, the Supreme Court has repeatedly affirmed 
     Chief Justice Rehnquist's insight. ``[T]he First Amendment 
     goes beyond protection of the press and the self-expression 
     of individuals to prohibit government from limiting the stock 
     of information from which members of the public may draw.'' 
     First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 
     (1978); Accord Kleindienst v. Mandel, 408 U.S. 753, 762 
     (1972) (``In a variety of contexts this Court has referred to 
     a First Amendment right to `receive information and ideas.' 
     '').
       The Supreme Court has thus ruled on four occasions that the 
     First Amendment creates a right for the public to attend and 
     observe criminal trials and related judicial proceedings, 
     absent the most extraordinary of circumstances. Richmond 
     Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Globe 
     Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press-
     Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Press-
     Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). The 
     cases are particularly relevant to this application because 
     they--perhaps more clearly than any others--illustrate the 
     core constitutional principle that government may not 
     arbitrarily foreclose the opportunity for citizens to obtain 
     information central to the decisions they make--and the 
     judgments they render--about government itself.
       The teaching of this quartet of cases was aptly articulated 
     by another Chief Justice, Warren Burger, writing for the 
     Court in Richmond Newspapers, the first of the four 
     decisions. The First Amendment, he wrote, ``assur[es] freedom 
     of communication on matters relating to the functioning of 
     government.'' 448 U.S. at 575. Noting the centrality of the 
     openness in which trials were conducted to that end, id. at 
     575, the Court stated that openness was an ``indispensable 
     attribute of an Anglo-American trial.'' Id. at 569. It had 
     assured that proceedings were conducted fairly, and it had 
     ``discouraged perjury, the misconduct of participants, and 
     decisions based on secret bias''. Id. Most significantly, 
     open trials had provided public acceptance of and support for 
     the entire judicial process. It was with respect to this 
     benefit of openness--the legitimacy it provides to the 
     actions of government itself--that Chief Justice Burger (in 
     the passage quoted above), observed that ``[p]eople in an 
     open society do not demand infallibility from their 
     institutions, but it is difficult for them at accept what 
     they are prohibited from observing.'' Id. at 562.\6\
       To be sure, the Chief Justice in Richmond Newspapers rested 
     heavily on the tradition of openness of criminal trials 
     themselves--a difference of potential relevance because 
     impeachment debates and deliberation have historically been 
     conducted in secret. But, taken together, Richmond Newspapers 
     and its progeny stand for propositions far broader than the 
     constitutional value of any specific historical practice. The 
     sheer range of proceedings endorsed as open by the Supreme 
     Court suggests the importance under the First Amendment of 
     public observation of the act of doing justice. Moreover, 
     Supreme Court precedent itself suggests that the crucial 
     right to see justice done prevails even where the specific 
     kind of proceeding at issue had a history of being closed to 
     the public. In Globe Newspaper Co.,  the Court ruled that the 
     First Amendment barred government from closing of trials of 
     sexual offenses involving minor victims. It did so despite 
     the ``long history of exclusion of the public from trials 
     involving sexual assaults, particularly those against 
     minors.'' 457 U.S. at 614 (Burger, C.J., dissenting).
       New York Times Co. v. Sullivan and Richmond Newspapers have 
     significance which sweep far beyond their holdings that 
     debate about public figures must be open and robust and that 
     trials must be accessible to the public. Both cases--and all 
     the later cases they have spawned--are about the centrality 
     of openness to the process of self-governance. ``[T]he right 
     of access to criminal trials plays a particularly significant 
     role in the functioning of the judicial process and the 
     government as a whole. Public scrutiny of a criminal trial 
     enhances the quality and safeguards the integrity of the 
     fact-finding process, with benefits to both the defendant and 
     to society as a whole. . . . And in the broadest terms, 
     public access to criminal trials permits the public to 
     participate in and serve as a check upon the judicial 
     process--an essential component in our structure of self 
     government.'' Globe Newspaper Co., 457 U.S. at 606.
       The First Amendment principles set forth above lead 
     inexorably to a straightforward conclusion: the Senate should 
     determine as a matter of First Amendment law that the public 
     may attend and observe its debates and deliberations about 
     the impeachment of President Clinton. No issue relates more 
     to self-government. No determinations will have more impact 
     on the public. No judgment of the Senate should be subject to 
     more--and more informed--public scrutiny.
       We are well aware that it is sometimes easier to be 
     subjected to less public scrutiny and that some have the 
     perception (which has sometimes proved accurate) that more 
     can be accomplished more quickly in secret than in public. 
     But this is, at its core, an argument against democracy 
     itself, against the notion that it is the public itself which 
     should sit in judgment on the performance of this body. It is 
     nothing less than a rejection of the First Amendment itself. 
     What Justice Brennan said two decades ago in the context of 
     judicial proceedings is just as applicable here: ``Secrecy of 
     judicial action can only breed ignorance and distrust of 
     courts and suspicion concerning the competence and 
     impartiality of judges; free and robust reporting, criticism, 
     and debate can contribute to public understanding of the rule 
     of law and to comprehension of the functioning of the entire 
     criminal justice system, as well as improve the quality of 
     that system by subjecting it to the cleansing effects of 
     exposure and public accountability.'' Nebraska Press Ass'n v. 
     Stuart, 427 U.S. 539, 587 (1976) (Brennan, J., concurring).
       That it is the tradition of this body to conduct 
     impeachment deliberations in closed session is not 
     irrelevant. But neither should it be governing. The Senate 
     has, after all, conducted only one presidential impeachment 
     trial before this one. Our society in 1868--and, more 
     significantly still, our law in 1868--was far different than 
     it is today. As we have demonstrated, First Amendment 
     jurisprudence as we know it--as it governs us and binds the 
     Senate--is essentially a creature of the twentieth century. 
     That jurisprudence assures public scrutiny, not public 
     ignorance.
       There are, to be sure, certain limited instances when 
     closure of Senate deliberations may serve useful purposes, 
     such as when they involve disclosure of matters of national 
     security. But no such concerns are present here. And however 
     proper it may be to analogize the Senate in some ways to a 
     jury, none of the considerations that permits juries to 
     deliberate out of the public eye are present here. The 
     identities of the ``jurors'' her are well known, as, under 
     the Senate rules, will be how each one voted. The 
     Constitution does not offer protection to the ``jurors'' here 
     from the force of public opinion for their votes for or 
     against the conviction of President Clinton. They will face 
     the full weight of public approval or rejection the next time 
     they seek re-election. The Constitution does require that the 
     reasons they give for their votes and other statements made 
     in the course of debate be made in public so that both the 
     debate and the votes themselves can be assessed by the 
     people--the ultimate ``Governors'' in this republic.


                               conclusion

       From the time these proceedings commenced in the House of 
     Representatives through the submission of this application, 
     members of the Congress have repeatedly--and undoubtedly 
     correctly--referred to the weighty constitutional obligations 
     imposed upon them by this process. This application focuses 
     on yet another constitutional obligation of the members of 
     the Senate, an obligation reflected in the oath of office 
     itself. it is that of adhering to the First Amendment. We 
     urge the Senate to do so by permitting the public to observe 
     its deliberations.

     Dated: New York, NY, January 29, 1999.

           Respectfully submitted,
     David Hokler,
       Senior Vice President and General Counsel, Cable News 
     Network;
     Floyd Abrams,
     Dean Ringel,
     Susan Buckley,
     Jonathan Sherman,
       Cahill Gordon & Reindel; Counsel for Applicant Cable News 
     Network.


                               footnotes

     \1\ Federalist No. 65; see Nixon v. United States, 506 U.S. 
     224, 233-34 (1993).
     \2\ It is precisely because the Senate possesses this power 
     over its own rules that this application is made to the 
     Senate rather than to any court.
     \3\ ``Congress shall make no law . . . abridging the freedom 
     of speech, or of the press . . . .''
     \4\ See Thomas Emerson, The System of Freedom of Expression 7 
     (1970); John Hart Ely, Democracy and Distrust 93-94 (1980); 
     Robert Bork, Neutral Principles and Some First Amendment 
     Problems, 47 Ind. L.J. 1, 23 (1971); see generally Alexander 
     Meiklejohn, Free Speech and Its Relation to Self-Government 
     (1948).
     \5\ Harry Kalven, The New York Times Case: A Note on ``The 
     Central Meaning of the First Amendment,'' 1964 Supp. Ct. Rev. 
     191 ,211 n. 125.
     \6\ The right of the public and the press to have access ``to 
     news or information concerning the operations and activities 
     of government,'' a right predicated in part on the principles 
     set forth in cases

[[Page S1409]]

     such as Richmond Newspapers and its progeny, has been 
     recognized in a variety of contexts outside the courtroom. 
     Cable News Network, Inc. v. American Broadcasting Companies, 
     Inc., 518 F. Supp. 1238, 1243 (N.D. Ga. 1981) (court enjoins 
     Executive's expulsion of television networks from press 
     travel pool covering the President); see also Sherrill v. 
     Knight, 569 F.2d 124 (D.C. Cir. 1977) (court requires White 
     House to publish standards for denying press accreditation on 
     security grounds).

                          ____________________