U.S. GOVERNMENT PRINTING OFFICE

46–218 CC WASHINGTON : 1998

CAMERA RULE REPEAL

HEARING

BEFORE THE

COMMITTEE ON RULES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

H. RES. 298

A RESOLUTION AMENDING THE RULES OF THE HOUSE OF REPRESENTATIVES TO REPEAL THE RULE ALLOWING SUBPOENAED WITNESSES

TO CHOOSE NOT TO BE PHOTOGRAPHED AT COMMITTEE HEARINGS

November 4, 1997

Printed for the use of the Committee on Rules

(

For sale by the Superintendent of Documents, U.S. Government Printing Office

Washington, DC 20402
ii

COMMITTEE ON RULES

GERALD B.H. SOLOMON, New York, Chairman

DAVID DREIER, California

PORTER GOSS, Florida

JOHN LINDER, Georgia

DEBORAH PRYCE, Ohio

LINCOLN DIAZ-BALART, Florida

SCOTT MCINNIS, Colorado

DOC HASTINGS, Washington

SUE MYRICK, North Carolina

JOHN JOSEPH MOAKLEY, Massachusetts

MARTIN FROST, Texas

TONY P. HALL, Ohio

LOUISE M. SLAUGHTER, New York

WILLIAM D. CROSBY, Chief Counsel

DANIEL J. KENIRY, Staff Director

GEORGE C. CRAWFORD, Minority Staff Director

BRYAN H. ROTH, Office and Systems Manager

SUBCOMMITTEE ON LEGISLATIVE AND BUDGET PROCESS

PORTER GOSS, Florida, Chairman

JOHN LINDER, Georgia

DEBORAH PRYCE, Ohio

DOC HASTINGS, Washington

GERALD B.H. SOLOMON, New York

MARTIN FROST, Texas

JOHN JOSEPH MOAKLEY, Massachusetts

WENDY SELIG, Counsel

KRISTI WALSETH, Minority Staff Director

SUBCOMMITTEE ON RULES AND ORGANIZATION OF THE HOUSE

DAVID DREIER, California, Chairman

LINCOLN DIAZ-BALART, Florida

SCOTT MCINNIS, Colorado

SUE MYRICK, North Carolina

GERALD B.H. SOLOMON, New York

TONY P. HALL, Ohio

LOUISE M. SLAUGHTER, New York

VINCENT RANDAZZO, Counsel

MICHAEL GESSEL, Minority Staff Director

(II)
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C O N T E N T S

Page

NOVEMBER 4, 1997

Opening statement of the Hon. Gerald B.H. Solomon, chairman of the Committee on Rules (prepared statement p.03) 01

Opening statement of the Hon. John Joseph Moakley, ranking minority member of the Committee on Rules (prepared statement p.07) 05

Statement of:

Barr, Hon. Bob, a Representative in Congress from the State of Georgia .. 22

Dingell, Hon. John D., a Representative in Congress from the State

of Michigan (prepared statement p.32) ....................................................... 28

Kanjorski, Hon. Paul E., a Representative in Congress from the State

of Pennsylvania (prepared statement p. 38) ............................................... 34

Brand, Stanly M., former House Counsel, U.S. House of Representatives

(prepared statement p.48) ............................................................................ 45

Robinson, Peter, former Assistant Parliamentarian, U.S. House of Representatives ................................................................................................... 59

Tiefer, Charles, former General Counsel to the Clerk, U.S. House of

Representatives (prepared statement p.63) ................................................ 60

Cochran, Barbara, President, Radio–Television News Directors Association (prepared statement p.79) .................................................................... 76

Dillon, Tim, Chairman, Standing Committee of Press Photographers ........ 84

Additional Information:

Information submitted by Chairman Solomon ............................................... 19

(III)
(1)

H. RES. 298, A RESOLUTION AMENDING THE

RULES OF THE HOUSE OF REPRESENTATIVES TO REPEAL THE RULE ALLOWING

SUBPOENAED WITNESSES TO CHOOSE NOT

TO BE PHOTOGRAPHED AT COMMITTEE

HEARINGS

Tuesday, November 4, 1997

HOUSE OF REPRESENTATIVES,

COMMITTEE ON RULES,

Washington, D.C.

The committee met, pursuant to call, at 6:15 p.m. in Room H–

313, The Capitol, Hon. Gerald B.H. Solomon [Chairman of the committee] presiding.

Present: Representatives Solomon, Dreier, Diaz-Balart, Myrick,

Hastings, McInnis, Goss, Moakley, Frost, and Hall.

The CHAIRMAN. The committee will come to order. You will have

to excuse my voice. I am running out of voice today. It has been

a long year.

The subject matter of this hearing is a resolution which repeals

the exception in House rules to the requirement that public committee proceedings be open to the media. I have a brief opening

statement before I yield to my good friend, Mr. Moakley.

Let me just say that in several high-profile congressional investigations in recent years certain witnesses, subpoenaed to appear

before congressional committees, have invoked a little-known

House rule, clause 3(f)(2) of rule 11, during their appearances before these various committees.

This rule, as the Members are aware, allows a subpoenaed witness, and we are talking about subpoenaed witnesses here, to demand that TV cameras be turned off, that still photography cease,

and that radio coverage end as well, while the witness is testifying

before the committee after being sworn. That means a witness, for

no reason at all, can arbitrarily kick out radio, television, photographers, leaving the written media with what I would consider to

be an unfair news reporting advantage.

The assertion of this right before several committees since the

late 1980s has given many Members on both sides of the aisle firsthand experience with this rule. Several Members from both sides

of the aisle who are very active in their committee work have found

the rule frustrating and have approached me and other members

of this Rules Committee on the House floor to change that rule.
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The sweeping changes in electronic communications, and the

vast number and scope of news media outlets available to cover

Government events, has also led Members to wonder if this rule

may be an anachronism.

The chairman of the Executive Committee of the Radio-Television Correspondents’ Galleries, Mr. Vic Ratner has written to the

Rules Committee, and you all have copies of his letter, for the second year in a row requesting that the committee repeal this House

rule. The rule, the Radio-TV Correspondents’ rightly argue, unfairly discriminates against the electronic media. I do not think

there can be any question about that.

The Rules Committee finds the practical concerns of Members

and the arguments of the Radio-TV Correspondents’ to be wellfounded. By repealing this rule, House committees, in their infinite

wisdom, can still consider whether to close a meeting and expel all

press and all public, if an assertion is made that testimony may

tend to defame, degrade or incriminate any person. And that does

not have to be made just by the witness, it can be made by a Member of Congress or by anyone.

Witnesses enjoy several important protections, which require

committee votes under current House rules, clause 2(g) and (k) of

rule 11. These rules will remain in effect if we proceed to repeal

the so-called camera rule.

House Members may be so accustomed to TV coverage of the

House floor and its committees that they may forget that for many

years the practice of the House was not to allow television broadcast of any committee proceedings, and I am sure that some of you,

Mr. Moakley, Mr. Dingell and others who were here way back in

the early 1970s would recall that. It was not until 1970 that the

House permitted committees the ability to adopt rules allowing TV

broadcast coverage if a committee voted to do so.

In 1995, as part of the historic Republican opening day reform

package, we revised this rule to allow more sunshine to illuminate

committee proceedings for the public. Under the new House rule,

any meeting, as all of you know, any meeting or hearing must be

open to all media coverage, nobody to be excluded, if the session

is open to the public, which in fact most hearings and meetings are

today.

I consider the resolution before us today as a natural followthrough to those sunshine reforms adopted at the beginning of the

104th Congress. I believe the House can, from time to time, adapt

itself to new technology and at the same time assist in the education of the public about Congress. We should keep in mind that

an informed citizenry is critical to the success of our republic.

Having said that, I yield to my good friend, Joe Moakley, for any

opening statement that he might have before we entertain witnesses.

[The prepared statement of Mr. Solomon follows:]
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Mr. MOAKLEY. Thank you very much, Mr. Chairman. We are

here tonight with very little notice to take away fundamental

rights guaranteed witnesses by the House rules.

But before we get into the substance of the resolution, Mr. Chairman, let me ask, what is the rush? We only received notice of this

meeting late Friday afternoon for today’s 6 p.m. hearing. The

House had already adjourned for the week, Members had already

left town for the weekend, the House was out of session until Tuesday, and votes were not expected before 5 o’clock. There was no indication, no announcement last week by you, Mr. Chairman, that

this matter was likely to come before the Rules Committee. It was

not even announced by the majority leader on Friday as part of the

schedule for the following week. It was not listed on the floor

schedule that was distributed on Monday morning. No advanced

notice was given to anyone, at least on our side of the aisle, that

consideration and disposal of this measure was expected to occur

in the immediate future. There is no justifiable reason why we

must act in this careless and this hurried fashion.

The rule you want to repeal, Mr. Chairman, was adopted in response to the shameful abuses by this House in the McCarthy era.

Some say it originated in a suicide note. In June of 1957, the

House Un-American Activities Committee opened up hearings in

San Francisco. A young cancer researcher named William Sherwood was subpoenaed to appear on camera before the committee.

Two days before his scheduled appearance he wrote a note expressing his ′′fierce resentment of being televised.′′ He then jumped from

his hotel window to his death.

Cameras and live broadcasts were banned from committee hearings from 1957 until the Congress enacted the Legislative Reorganization Act of 1970. The 1970 act, Mr. Chairman, which grew out

of an extensive and lengthy hearing process by a special subcommittee, contained the identical language, word for word, that is

in the current rules, the same language, the very same language,

that you seek to repeal.

Senator Javits, while serving in the House, representing your

great State, Mr. Chairman, was one of the first Members to champion the use of TV cameras in the Congress. However, he was cognizant of how it might impact on the rights of witnesses, and in

February of 1952 he said, ′′the indiscriminate use of television and

radio could very easily in many cases work out to invade the individual’s rights.′′ How right he was.

Representative Hugh Scott, Republican of Pennsylvania, and

Chairman of the Rules Subcommittee in the Republican-controlled

83rd Congress, said in March of 1955 that a code of fair committee

procedures must protect a witness from distraction, harassment, or

nervousness that could be caused by radio, TV, and motion picture

coverage at hearings. The closest we have to this law is clause 3(f)

of rule 11.

Mr. Chairman, witnesses do not always have the opportunity to

rebuff statements made to them by members of the panel. They

cannot object to a question that is misleading or incriminating.

They can be held in contempt if they refuse to answer any question, regardless of how inappropriate that question may be. They
6

may have a lawyer present, but that lawyer is virtually powerless

to halt an unfair line of questioning. To further subject these witnesses to unwarranted television and radio coverage, I feel, is a flagrant abuse of the power by the Members of Congress.

Mr. Chairman, let us not forget that committees also make mistakes. Recently Chairman Burton subpoenaed the records of the

wrong Chi Wong. They did it again and subpoenaed the records of

the wrong Li Ping Chen. They subpoenaed the records of Li Ping

Chen Hudson, who had nothing to do with any kind of fund-raising. These subpoenas were for documents, but these innocent citizens might just as easily have been called and grilled before rolling

TV cameras.

The protection provided in clause 3(f)(2) of rule 11 is all that a

witness can use to protect him or herself from such exploitation.

Now even that small refuge is to be taken away leaving witnesses

at the mercy of an often hostile panel.

When I sat in your chair, Mr. Chairman, I, too, heard from frustrated Chairmen who wanted to repeal the rule because an individual invoked their rights. They said the rule inhibited the freedom

of the press. I told them the first amendment rights of the press

and the public’s right to know are in no way diminished by the rule

in its present form. The print and broadcast press are not excluded

from a hearing and nothing in this rule prevents any reporter from

fully covering the hearing.

But American citizens, Mr. Chairman, have a right of privacy, a

right to avoid the limelight of cameras. And when Congress compels—when Congress compels; these are not volunteers—when

Congress compels an individual to testify, he or she should have an

absolute right to demand that the cameras be turned off.

I deeply regret that we are moving in this direction today. I can

only implore you and the Majority to listen to our witnesses who

are here today and take careful heed of all they have to say on this

issue. Let us not blindly jump in and strip away this vital protection from these witnesses who are obliged to testify by order of congressional subpoena.

Just hours ago we reported a rule on a measure to reform the

Internal Revenue Service. The legislation was needed, Mr. Chairman, because the IRS is sometimes overzealous and intimidates

American citizens. We have to pass that bill because the average

American cannot escape the callous tactics of this organization. So

let us think, let us reflect, let us not allow ourselves to become another IRS in the eyes of the American public.

[The prepared statement of Mr. Moakley follows:]
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Mr. FROST. Mr. Chairman.

The CHAIRMAN. I will recognize the gentleman in just a minute,

but I just need to respond so that everyone knows exactly what we

are doing here this evening.

Now before us we have the proposition to repeal this provision,

and you all should listen carefully because then I am going to cite

what we are going to leave in place, which tends to support the

gentleman’s argument, and we are going to leave that in place.

What we are going to repeal this evening would be this: No witness served with a subpoena by the committee shall be required

against his or her will to be photographed at any hearing or to give

evidence or testimony while the broadcasting of that hearing by

radio or television is being conducted. At the request of any such

witness who does not wish to be subjected to radio, television or

still photography coverage, all lenses—this is simply at the request,

arbitrarily by anyone—at the request of any such witness who does

not wish to be subjected to radio, television or still photography

coverage, all lenses shall be covered and all microphones used for

coverage turned off.

Now, that is what we are proposing to repeal. Now, this is what

is left in place. This is what the rule of the House is now:

′′Whenever it is asserted that the evidence or testimony at an investigatory hearing may tend to defame, degrade, or incriminate

any person′′—you all heard that and understand that—′′such testimony or evidence shall be presented in executive session, notwithstanding the provisions of clause 2(g)(2) of this rule, if by a majority of those present, there being in attendance the requisite number required under the rules of the committee to be present for the

purpose of taking testimony, the committee′′—and this is the key

part—′′the committee determines that such evidence or testimony

may tend′′ —not will, but may tend—′′to defame, degrade, or incriminate any person.′′

Now, that is what is going to be left in place. Now, that means

that whoever the witness may be, whoever the Member of Congress

may be, they can request the committee to immediately make the

decision on whether this would tend to defame or incriminate or

degrade any person. And if the committee in its infinite wisdom decides that it would, then the meeting is completely closed, all the

media is removed, and they proceed in executive session. That is

what we are proposing here today.

I think, Joe, you made the statement that the witness have the

rights, but I think the American people, we made this decision a

long time ago, for right or for wrong, that we would televise the

proceedings of this House and of the committee proceedings and we

are going to continue to do that.

Mr. MOAKLEY. Because we are all here voluntarily to do that.

The CHAIRMAN. And this simply clarifies and allows the committee to close the hearing if there would tend to be damage to any

Member.

Mr. MOAKLEY. May I respond, Mr. Chairman?

The CHAIRMAN. I will let Mr. Moakley respond, then Mr. Frost.
17

Mr. MOAKLEY. You are still depriving the American citizen of a

right and you are putting it up to the majority of the committee

sitting. That is not what our people who set up this rule intended.

These are absolute rights given to the American citizen, and I do

not think the committee should be able to make the decision to

take those rights away, even if it is on a case-by-case individual

ruling.

The CHAIRMAN. Mr. Frost.

Mr. FROST. Mr. Chairman, I have to leave the committee for a

little while because I have an engagement I have to go to, but I

want to give a little background on this. And I think it is important

to realize that sometime in the future there will be a Democratic

majority in this House just as there was a Democratic majority in

the past.

In 1989, I served as chairman of the caucus rules committee of

the Democratic Caucus and there was a proposal from Democrats

to change this rule before my committee, before my caucus rules

committee. My caucus rules committee rejected that proposal. Let

me tell you what the situation was.

There was a Republican, former Republican cabinet member who

came and testified before a committee controlled by Democrats and

that Republican cabinet member invoked this rule and it made the

Democrats on the committee so mad that they wanted to abolish

the rule so that no Republican cabinet member could ever come forward and be shielded from television.

Now, what goes around comes around. What we have right now

is the Republicans in control and you want to bring Democrats before the committee. We had a situation 10 years ago when the

Democrats were in control and we wanted to bring Republicans before the committee and we chose, the Democratic Caucus chose, to

leave this rule in place and let Republicans who appeared before

the committee invoke the rule and not be required to be on television.

I think it is important to understand what the current situation

may not be the situation 2 years or 4 years from now and that we

should not be caught up, swept up in the emotions of the moment,

but we should try and understand why this rule is in place and

why it has been in place for a number of years and why when we

were in the majority we chose to keep it in place even though some

members of our own caucus wanted to throw this rule over the

side.

The CHAIRMAN. As I call Congressman Bob Barr to the witness

table, I think it is important to submit three documents. One is the

testimony that came out a subcommittee hearing conducted by

Congressman Lantos of California, and I think it would the identical meeting that Mr. Frost was just referring to. He was the subcommittee Chair of Employment and Housing in the old Government Operations Committee and they were interviewing Mr. Pierce

at the time.

And Mr. Lantos said, quote: ′′I want to thank all my colleagues

for their comments. As we know, the Rules of the House presently

in existence allow a subpoenaed witness to request that live telecasting and broadcasting of the proceedings not take place while he

is in the witness chair. I fully disagree with this rule, and I have
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introduced legislation, H.Res. 253, to change the Rules of the

House, because I believe the American people are entitled to open

government. But, as long as the rule is on the books I, of course,

intend to enforce the rules.′′

And he went to you, Mr. Moakley, and spoke to you and Mr.

Foley at the time, and I would ask unanimous consent to submit

this for the record.

[The information follows:]
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Mr. MOAKLEY. Tell them what Mr. Moakley said to him.

The CHAIRMAN. Let me finish this. Then on November 29, 1996,

which was just last year, Mr. Barney Frank of Massachusetts

wrote a letter to David Dreier, who was Chair of our subcommittee,

and he said:

′′Dear David, it was brought to my attention in the last Congress

that any witness who is served with a subpoena to appear before

Congress may request to do so without any radio, television, or still

photography coverage. I am inclined to think we should reconsider

this and treat subpoenaed witnesses as we do all other witnesses

who appears before Congress.′′

And, finally, let me just quote, who is this I am quoting, it is the

Vice President of the United States.

Mr. MOAKLEY. Which one?

The CHAIRMAN. Then-Representative Al Gore, when he was

chairman of the subcommittee in 1978 and 1981. He said, quote,

′′Rule XI relating to the presence of TV cameras is one which the

Chair personally disagrees with and will endeavor to change.′′ That

was in 1978.

In 1981 he said again, ′′The Chair will announce that, notwithstanding the views of this Member of Congress and the views of

others that this rule is unwise.′′

I see a good friend, Mr. Dingell, who is going to appear here later

on, and I have witnessed Mr. Dingell on any number of occasions

when he would insist that the witness continue with the TV cameras rolling, but—just a minute, John, and you will be recognized—

but stating that they were not sworn yet and, therefore, the cameras would keep rolling.

So I think we need to remember all these things as we go along.

And I am certain Mr. Dingell will be a witness here in a minute.

Mr. MOAKLEY. Mr. Chairman.

The CHAIRMAN. Mr. Moakley.

Mr. MOAKLEY. I am so happy that you are really paying attention to what Al Gore says. I would hope you would pay attention

to what he says on everything and not just on this one matter.

The CHAIRMAN. If we did that, Mr. Moakley, my property owners

would not have any property rights left at all.

Mr. MOAKLEY. Okay, but you may recall when Tom Lantos did

come before the committee that I said this must be treated with

extreme caution and pushed him to a subcommittee for more extensive hearings, and we never allowed that change to take place. Remember that?

The CHAIRMAN. Well, let us hear the witnesses and see what

they have to say here today.

The first witness before us is the Honorable Bob Barr, who has

filed legislation which would repeal that rule which I have spoken

about earlier. Mr. Bob Barr.

STATEMENT OF THE HON. BOB BARR, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF GEORGIA

Mr. BARR. Mr. Chairman, it is an honor to be here before you

and the other members of the Rules Committee to consider a rule

that, unfortunately, we need to bring forward. The reason we need
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to bring it forward is because there is a rather strange rule in the

House that permits certain proceedings before certain committees,

at the request of certain individuals, for whatever reason possible,

to exclude certain portions of the media from letting the public

know what is going on in that hearing.

Mr. Chairman, it is unfortunate that we need to bring this forward because, really, the hallmark, the underpinning of this entire

Congress, from its very inception, that is embodied in this manual

and these rules has been openness.

Similar to other work with which I am familiar, having served

as a United States attorney, there are certainly specific proceedings

for specific statutory reasons reflecting very specific rights of individuals or of the Government at which that general hallmark of

our Government, and that is that everything ought to be, insofar

as possible, made public, because out of that public knowledge and

perception of what the Government is doing comes public confidence in the Government and out of that comes strength of Government.

But even in those circumstances, in which as a United States attorney I had to abide by certain court proceedings, rules of criminal

procedure, civil procedure or grand jury rules, Mr. Chairman, that

provide otherwise, that is, that provide for secrecy or exclusion of

the public, it was always a burden on the Government to justify

why an exception to the general rule under which our Government

operates, and that is that the public ought to know what is gong

on and the public has a right to know, an overarching right, the

burden is always on the Government to make sure that the exemption fits within the exemption that the proposed secrecy, such as

grand jury proceedings to protect an ongoing investigation, to protect the name or identity of a witness because it might endanger

people’s lives, or of course there are national security areas similarly, the burden is always on the Government.

And in our proceedings also, Mr. Chairman, that certainly is and

ought to remain the overarching and indeed the foundation on

which we operate here, and that is the strength of what we do

here, the public’s confidence in what we do here is borne in large

part out of the fact that what we do, how we operate is uniformly

and consistently open to the public. And those circumstances under

which we draw exceptions for that ruling ought to be very, very

limited and very carefully circumscribed and based on a very specific requirement or right that supersedes that general right of the

public to know what is going on in Government.

The proposal that I put forward, despite some folks’ attempt to

make it appear partisan, has nothing to do with partisan politics.

The most recent instance in which this particular provision of the

rule was invoked involves some witnesses before the Government

Reform Committee. It had nothing to do with partisan politics. I do

not know which sides of the aisle had more or less of an interest

in ensuring that the public knew more or less about what those

witnesses were testifying to. It may have broken down that it really did not affect the Democrats or the Republican side more than

another.

The fact of the matter is, Mr. Chairman, as you have so eloquently indicated, the current provision that allows arbitrarily for
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any particular witness to exclude a certain type of broadcasting;

namely television and radio broadcasting exclusively, and photography, from his or her testimony, would lead to some very strange

results. You might have one witness on a panel who wants to do

that. Does that mean the other witnesses on that panel similarly

are circumscribed? And what about the public’s rights to hear and

see what those other witnesses are testifying to?

There is no requirement that there be any rational basis for the

assertion of this particular provision, which I do not believe is

founded in some absolute overarching constitutional right of the

people to appear before the Congress in secret.

There is also, Mr. Chairman, as you have also very eloquently

stated and referenced in the rules, there is full opportunity in the

rules, if my proposal is adopted by the House, for any particular

committee or subcommittee in any particular circumstance, where

there is good reason for it, to exclude the media, exclude the public,

in order to protect an important articulable circumstance or right

of a witness.

So I would very much appreciate the committee’s careful consideration of this proposal. It is in keeping not only with, as the

Chairman indicated, the way we started business in the 104th Congress, but really it is consistent with the way Congress has always

operated, and that is to the greatest extent possible, unless there

is some very, very well-articulated, very important, very specific

reason not to, we operate in the public, in the open, and so that

the media, all of the media, not discriminating against one branch

of the media over another, which the current rules do, has the opportunity to let the public know what is going on.

So I would urge adoption of this and a favorable report on it. It

is a very limited proposal, Mr. Chairman. It does not, as you have

indicated, do away with the full range of powers that our committees and subcommittees will continue to retain to close certain

hearings for good reason.

The CHAIRMAN. Well, thank you, very much, Congressman Barr.

I think the record ought to show that Congressman Barr is a

former U.S. attorney with the Justice Department; that he is also

a member of the Judiciary Committee and a member of the Government Reform and Oversight Committee. We appreciate your

knowledge and your being here today.

Mr. BARR. Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Moakley.

Mr. MOAKLEY. Mr. Barr, why do you think it is necessary to rush

this resolution through with such short notice, with such inadequate time to thoroughly study the ramifications of the rule

changes?

The CHAIRMAN. Before the gentleman answers that, would my

good friend yield?

Mr. MOAKLEY. Love to.

The CHAIRMAN. Well, Joe, I somewhat resent your implication

that this is being rushed through. This is being considered under

the rules of the House. Were you given 48 hours’ notice, like you

are on all legislation?
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Mr. MOAKLEY. But how come we were not notified when other

matters were coming up at the same time and your leader did not

give us—

The CHAIRMAN. If I could, I will give you a very good reason. It

is the intent of this Member of Congress to see that we adjourn

here this weekend, and I do not much care what else happens but

we are going to try to get out of here this weekend.

And if we are going to get out of here this weekend, then this

rule change ought to be in place because we will not be back here

until January 27th, and then only for a couple of days. We will be

off for the entirety of Lincoln’s birthday, which means we will not

be down to serious business until the last of February.

So that is good enough reason why we should consider this today.

Now, Mr. Barr can answer your question.

Mr. MOAKLEY. You forgot one other reason, the Burton hearings

are going to start next week.

The CHAIRMAN. I would hope so.

Mr. MOAKLEY. How could he do it without television?

The CHAIRMAN. Well, if I am sitting home in the Adirondack

Mountains, we get television up there.

Mr. MOAKLEY. I hope so.

The CHAIRMAN. And I want to see what is going on down here.

Mr. MOAKLEY. Now, Mr. Barr, you can answer my question.

Mr. BARR. Mr. Moakley, thank you, and of course all I can do,

and I would never be so presumptuous to speak for yourself or any

other member of the committee as to why the committee elects to

take certain action, all I can do, respectfully, is submit my rule

change, my resolution.

I believe it is important to address this. I appreciate a prompt

hearing by the committee. I wish all our committees operated as

promptly and responsive to Members’ wishes as this one does.

Mr. MOAKLEY. You have used the word ′′secrecy′′ and ′′closed

hearings.′′ Not allowing television or radio in there does not close

the hearing down, and there is not secrecy. Those people can sit

there like anybody else and take notes down. The only thing this

stops them from is taking pictures and hearing sound. So it is not

secrecy. It is still an open hearing; would you agree?

Mr. BARR. It is sort of strange the way it does it, because, for

example, you are absolutely correct, members of the printed media

can stay in there, members of the public can stay.

Mr. MOAKLEY. TV reporters can sit in there but they cannot

come in with cameras.

Mr. BARR. But the cameras, the microphones and the lenses have

to be covered.

Mr. MOAKLEY. That is right, but the people who staff them can

write and read and do everything else.

Mr. BARR. Which raises the question, why have the rule? It is

sort of a halfway rule anyway.

Mr. MOAKLEY. As a former States attorney, you know that under

questioning even the most straight, honest citizen can appear

guilty because he is sweating and stuttering and stammering, and

I think the television camera has a chance to do an awful injustice

on a person who is appearing involuntarily before that committee,

against his will. I think he should at least have the right that is
26

prescribed to him in the rules of having no television or radio coverage.

Mr. BARR. I do not, frankly, think it is the television camera that

intimidates the witness, I think it is the badgering by certain members of the committee, which I have seen before. That may be more

of a problem than whether the camera exists.

Mr. MOAKLEY. And these witnesses will not be badgered by anybody in these hearings?

Mr. BARR. They are, but it has nothing to do with whether the

cameras are there. It is the badgering by certain Members that

causes a witness to sweat.

Mr. MOAKLEY. What if a witness is an informer about organized

crime and he comes before the committee and he is on television.

That does not exactly increase his life-span.

Mr. BARR. And that is why we now have and would continue to

have under my proposal, even if it was adopted, very adequate

remedies to protect against disclosure.

I was at a subcommittee hearing just 2 weeks ago in which we

had a person from Colombia that appeared before the National Security Subcommittee under just those circumstances, and we, I

hope, maintained very adequate protection for her identity.

The CHAIRMAN. Would the gentleman yield at that point, just to

cite the existing House rule even after we repeal this one?

We can still close the meetings for national security information,

sensitive law enforcement information, information that would tend

to defame, degrade, or incriminate any person and information that

would violate any law or rule of the House.

Mr. MOAKLEY. After a vote of the committee. After a vote of the

majority of the committee.

You still are taking away that American citizen’s rights. And

what we did today to chastise the IRS because of their overzealous

agents, I think would be a prime example of why we should not

rush ahead on something like this.

The CHAIRMAN. Mr. Moakley, could I just show one reason why

we could? You seem to think the written news media always reports exactly what happened and what transpired.

Mr. MOAKLEY. I never said that.

The CHAIRMAN. Wait a minute, let me show you a headline here.

Says ′′Clinton Labels Tax Cut Selfish.′′ Now I do not know whether

he really said that or not. That is a pretty absurd statement, but

I am sure if the people watching it on television saw him say that,

they would understand it. And that is why we have such a large

viewing audience for C-SPAN these days. The American people like

to see what is going on here.

Mr. MOAKLEY. Where are they tonight?

The CHAIRMAN. You probably did not want them here.

Mr. MOAKLEY. I did not have a thing to do with that, you are

the one that calls them.

The CHAIRMAN. Go right ahead.

Mr. MOAKLEY. I am all done.

The CHAIRMAN. Mr. Dreier.

Mr. DREIER. Thank you very much, Mr. Chairman.

I will say, having been the recipient of that letter Mr. Solomon

referred to from Mr. Frank, this is an issue we have spent a great
27

deal of time thinking about and, obviously, I am, as is Mr. Moakley, concerned about the rights of those witnesses. But it does seem

to me that the operative words here are certain members of the

media, and I do not like the idea of discriminating against one

media source over another. So I think that that is something that

does clearly need to be brought into the mix.

Second, I do believe that there are protections here, and while

Joe continues to raise this issue of a majority of the committee, I

have some degree of confidence in the levelheadedness of Members

of this institution. I will admit there are some who may have a

tendency to shoot from the hip on occasion, but I believe that if

there are very justifiable concerns that are raised that going into

executive session to address issues of concern, if a member of the

Minority were to come to me and talked about a very, very compelling concern that existed on his part of a certain witness, assuming

that it is a Democrat, and gave reason to go into executive session

and say that the print and electronic media should not be there,

I would be more than willing to entertain the arguments that are

brought forward.

Mr. MOAKLEY. Would the gentleman yield?

Mr. DREIER. Be happy to yield.

Mr. MOAKLEY. The print and electronic media can be there but

they cannot use the radios and television. They can be there like

every other print reporter to take it down.

Mr. DREIER. But if we were to vote to go into executive session

is what I am saying, if that decision were made.

Mr. MOAKLEY. I am glad you would feel so good for the Minority,

but just, for instance, if a witness came before this committee, four

Democrats and nine Republicans, how many votes would I win?

Mr. DREIER. I told you I would entertain it.

Mr. MOAKLEY. You may entertain it but you may not vote for me.

Mr. DREIER. Well, let me just say that I think there clearly is an

opportunity for—

Mr. MOAKLEY. There is always an opportunity.

Mr. DREIER. That is right and the interests of the Minority to be

heard on this. So I think we are moving ahead in a very responsible way.

The CHAIRMAN. Any further questions of the witness?

Mr. MOAKLEY. Mr. Chairman, I have one question.

The CHAIRMAN. Mr. Moakley.

Mr. MOAKLEY. You are a Federal prosecuting attorney?

Mr. BARR. Former U.S. attorney.

Mr. MOAKLEY. How many cases did you try that were televised?

Mr. BARR. Well, the trials are not televised in Federal Court.

Mr. MOAKLEY. Thank you.

The CHAIRMAN. Any other questions of the witness?

If not, Bob, we certainly appreciate your coming and giving us

your expertise. Thank you again.

Mr. BARR. Thank you, Mr. Chairman.

The CHAIRMAN. And now we will have a panel of three of the

most distinguished Members of this body. One is the dean of the

entire House, John Dingell of Michigan, along with Henry Waxman

of California, Barney Frank of Massachusetts, and is the gentleman from Pennsylvania here to join that panel?
28

By all means, Mr. Kanjorski, if you would come forward. I do not

have you on my witness list, but you are always welcome. If the

four of you would come forward. And if there are only two of you,

I am sure you can hold your own.

Mr. Dingell, since you are senior to everybody, you may feel free

to submit your entire statement for the record, but you can summarize and you may take as much time as you would like, sir.

STATEMENT OF THE HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. DINGELL. Thank you, Mr. Chairman. I was about to ask

unanimous consent that I be permitted to insert my full statement

for the record and that is entirely acceptable to me.

Mr. Chairman, for the record, I am a former prosecutor. I have

engaged in fairly extensive private practice of law handling all

kinds of cases. I have been a Member of Congress, as you have

noted, for 41, almost 42 years. I have run probably as many congressional investigations as any man in this room or indeed in the

Congress and have had a remarkable record of success in those investigations.

I tried my first lawsuit before I was 20, when I was a second

lieutenant in infantry and was assigned the task of defending an

individual as defense counsel, and I have had, as I mentioned, not

inconsiderable experience with the practice of law and protection of

the rights of citizens.

I would observe that there have been two very divisive periods

in my kind of service in the Congress, one was the old McCarthyite

era and the other was the Vietnam time. The time when Joe

McCarthy and others committed some grotesque excesses in their

congressional investigations struck me very hard. When I became

the Chairman of the Oversight and Investigations Committee, I became very aware of the need to protect the rights of people, and

one of my major concerns was to see to it that although we ran

hard, tough, fair and vigorous investigations, that we did not commit any of the abuses which I had found to be so appalling.

And so we had two rules that we applied, one was that we had

to be fair and the other was we had to appear fair, because I did

not want anybody likening me to the things I had seen during the

days Joe McCarthy was handling matters, and when Members of

this body were doing the same kind of things, I will not mention

their names, but they are not revered today and should not be.

And we have dealt with the rule that this committee would seek

to repeal. We never found it inhibited the investigations. We never

found that it inhibited the media knowing fully what was going on.

The rule that you cited, Mr. Chairman, with regard to the closure of the meeting, going into executive session, we have used,

too. We never found that that inhibited the committee in its investigations and we never found that it ever inhibited the public in

knowing what the committee was doing. We found that the public

was able to be fully informed by the press.

To give you an example of what transpires when a witness comes

in under the rule that we are discussing repealing, the witness has

to come into the committee room. As he enters, he is subject to

being photographed by the still cameras and by the television cam-
29

eras. As he moves forward to his place at the witness table, he is

again subject to being photographed because he has not yet had the

opportunity or the time to invoke his rights. And at the proper

time, he has the right to insist that the cameras be turned off, the

loudspeakers and the microphones be turned off and that the still

cameras be shuttered. Prior to that time, he is subject to being photographed at any time.

When he concludes his testimony he is again subject to being

photographed as he departs from the committee room, as he goes

outside the Capitol, outside the room and the building where the

committee is sitting. The members of the press have full opportunity to, and the media have full opportunity to take down any

of the words which he says during the time that he is there and

to also quote in full the remarks of the witnesses, of other witnesses, and also the questioners and Members of the Congress or

the committee counsel who might be inquiring of this witness as

to his behavior or for whatever matter.

Mr. DINGELL. I think that in the numerous occasions where this

rule was invoked, and I always respect it, and I respected it assiduously, no witness was ever handled in such a way that the media

and the public didn’t full well know everything that went around,

and the 5:00 and the 6:00 or the 7:00 or the 10:00 or the 11:00

news or the 7:00 news, the next morning always had full access to

a full array of pictures which were taken showing the individual

and quoting from his testimony in the proceeding.

I don’t know how many in this room have participated in congressional investigations, but they are a rather scary event. You

are up there very much alone. You may have a counsel present, but

that counsel can only advise you as to your rights. He can’t defend

you. And the rights that you have in an appearance before a congressional committee are far less, far less, than the rights that you

have when you appear in court.

A Member of Congress under the speech and debate clause can

say almost anything he wants to you. He can abuse you. He can

make some of the most scandalous and outrageous charges. He can

deny you the real right to respond to the questions and answer it;

charges that are made in his comments to you, about you. It is terrifying and it is ofttimes a demeaning experience.

The rule that you cited, Mr. Chairman, is a good rule but it

doesn’t go very far. And it is a rule upon which the individual who

appears before the committee is entirely dependent, not on his—on

his assertion of his rights, but upon the whim and the caprice of

the committee, which may choose to afford him the judgment that

he is about to be defamed or degraded or to come to the conclusion

he ain’t. And that is their absolute judgment, not subject to appeal.

I had a number of people before the committee. As I said, in the

investigations we always afforded them full protection of this right.

We never found it inhibited us in the slightest in arriving at the

truth. And one thing else, we found that it also gave us the appearance of fairness and it enabled us to be fair. So it was not a rule

which in any way inhibited the committee from carrying out its

proper responsibilities or doing that which was right and important

in terms of our duty to gather the facts, to lay the basis for law,
30

to find wrongdoing, to see whether or not other public officials are

properly carrying out their responsibilities.

My good friend, Mr. Moakley, mentioned that two distinguished

Republicans, Mr. Scott and Mr. Javits, both Members of this body,

Members of the Senate, found that it was necessary for the Congress to have a rule of this kind for protection. Sam Rayburn was

quite outraged about events which occurred, and he became supportive of the idea that the rules should be changed to protect the

rights of witnesses who appear against this kind of thing. And it

all stemmed from, in part, an awareness about a witness who

killed himself because he didn’t want to be photographed before, on

television.

I don’t think that, as I mentioned, the system that we have inhibits us from doing a thorough and a careful and a proper job investigating. But I wonder how many of us want to have that kind

of consequence upon our souls. There are some who probably

wouldn’t find it at all troublesome, but I think I would, and I think

everybody in this room would.

I remember on one occasion we called Michael Milken before a

hearing. He was accompanied by his attorney, a very great and famous attorney by the name of Edward Bennett Williams, a very

close and dear friend of mine. In fact, he was a former law school

professor of mine in criminal law. He was a man that I not only

very much loved, but deeply respected. And at the appropriate

time, on his attorney’s advice, he requested that the cameras be

turned off, which I immediately ordered.

Mr. Williams made a simple point, and it was propounded in his

book, which he wrote in 1962 entitled, ′′One Man’s Freedom.′′ And

he said this: The average person is extremely nervous when he appears before any court or committee. It is unfair to ask him to appear before the entire country as well.

I am not quite clear why it is that there is this terrible rush towards this change in the rules. I am not aware of any business

that is going to require us to rush to this kind of a change. I am

not aware of any great public need, and speaking as one who has

probably conducted more investigations than everybody else in the

room here together, I can tell you that it has never inhibited us in

either informing the people or conducting the business of the House

or carrying out a proper and a successful investigation.

I think that if you look at it in that way, you are not protecting

the rights of criminals. You are protecting the rights of citizens,

citizens who have not been convicted of any crime. Indeed, not been

charged with any particular kind of wrongdoing, appearing before

perhaps one of the most terrifying institutions in this country, a

congressional investigating committee, one whose powers to abuse

and to destroy the name and the good name, the reputation, the

rights, the opportunity of an individual even to defend himself, are

no less in many particulars than the Court of Star Chamber or the

Spanish or the Portuguese Inquisition.

I don’t think that to make this change is going to make it easier

for us to investigate here in the Congress. I think it is going to

make it a great deal easier for us to abuse people, a great deal

easier for us to create a situation where the public will ultimately

feel the kind of revulsion they did of the sort of excesses I described
31

in the days of Joe McCarthy or Parnell Thomas or some of the

other people like that who brought real, real distrust and disgust

and distaste down on this body.

I would urge you not to do this. It isn’t going to benefit us. There

is no need. There is no help to be achieved for us in carrying out

our mission, but we are going to tamper with and hurt the good

name of this body and each and every one of us here if we take

this step. We are not going to benefit the press. We are not going

to benefit the country. We are not going to better inform the people. And we are not going to hurt only wrongdoers. We are going

to hurt a lot of innocent people who are going to be destroyed in

many different ways by committees which will commit excesses because there is literally no limit on the awesome and awful and terrifying power of a committee of a Congress when it is engaged in

these investigations.

I beg you for your sake, for my sake, and for the sake of this institution, do not do this thing.

[The prepared statement of Mr. Dingell follows:]
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The CHAIRMAN. John, thank you very much. And now, Mr. Kanjorski.

Mr. KANJORSKI. Mr. Chairman, the power—

The CHAIRMAN. Your entire statement will appear in the record

without objection as well

STATEMENT OF THE HON. PAUL E. KANJORSKI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA

Mr. KANJORSKI. Thank you. The power of the subpoena is an extraordinary constitutional power. I know of no other greater power

exercised either by the courts or the executive branch of government. It was given the representatives of the people because at

some time the public’s need to know and the people’s representatives need to know, properly legislated, passes over rights of individuals.

And so in the Constitution, when that right was placed in our

hands, I think we should exercise it with extreme caution. I worry

about the request of Mr. Barr because I think it is an exercise of

the power of the Majority to accomplish a very short partisan or

political end or gain.

I know from what experience Mr. Barr’s request comes. Recently,

before the Government Reform and Oversight Committee, we had

three witnesses that exercised their privilege of requesting the

cameras be turned off. I took part in the examination of those witnesses.

Quite frankly, although I did not agree at the time that that

privilege should have been exercised or would I have supported the

exercise of it, I have got to tell you that I am glad they did. One

of those witnesses testified to something that he knew an individual delivered money to him on a certain day and a certain place

in California, and yet we had six or seven pieces of almost incontrovertible evidence that that individual was in New York City.

So you had such a factual difference that was incredible. In attempting to determine whether this witness was telling the truth

or maligning the individual that we thought and still think was in

New York, we came down very heavily on him. I, for one, reminded

him what perjury meant because I knew about what appeared to

be incontrovertible evidence.

To this day we are not absolutely certain because we are still

getting evidence, to prove the precise time that the individual testified, of him being in California when he was, in fact, in New York.

But I wonder, if we are wrong, what would we have done to that

individual. The whole world would have seen the Congress of the

United States or a good portion, represented by that committee,

coming down very heavily on a witness. The poor witness maybe

honestly misunderstood who the individual was that gave the

money.

I do not have any doubt that he was given money. It was a question of identity. But his reputation, and his name would have been

ruined. Now, if he hadn’t the right to exercise the privilege of having the cameras turned off, regardless of the final conclusion of the

facts, his life would be, for all intents and purposes, ruined.
35

I think what we are dealing with is the idea of whether or not

we should take into consideration the rights of individuals that we

call before us under an extraordinary constitutional power. Now, as

my good friend and colleague from Michigan has pointed out, the

history of this rule goes back nearly 50 years when this Congress

experienced a man committing suicide sooner than subjecting himself to what he called assassination by publicity. In his mind, it

was sufficient.

You know, most recently, we had a member of the White House

staff who did take his own life and in part of his note that he left

for all of us to ponder on, he said here, speaking of Washington,

ruining people is considered sport.

Those of us who are in public life have been hardened to the

rights of privacy and secrecy and privilege just being average citizens. We sometimes think that all of the citizens that we represent

have a right to be badgered, lied about, rumored about, and

innuendoes circulated about. Maybe our hardened nature allows us

to pursue these public positions, but average citizens consider their

privacy, their integrity, their family reputations and their private

business to be their rights that we should protect.

I think this rule runs directly into that problem. If this Congress

is likely to accomplish some purpose in the hearings between now

and when the Congress comes back from recess, where deliberation

could be held as to what we want to do, if we just move in for the

purposes of a few congressional hearings to accomplish what end

I do not know. It certainly will not affect an election. It certainly

will not establish any facts that are prosecutable. It probably will

destroy a lot of people or at least add a great deal of embarrassment to them. If that is the purpose of this rule change, I do not

think that is a sufficiently deliberative and thought-out purpose.

I would think that at the very least, we should examine into

what has happened that caused this, and how it can be rectified.

I want to call your attention to several points. Mr. Barr made the

point in response to Mr. Moakley that he was a prosecuting attorney and they do not have a television camera in a courtroom in the

Federal system. They do not have it in the Supreme Court deliberative chambers, which are important to all Americans. Why

would Americans not like to know how a case is decided?

They do not have television cameras in the Oval Office. I think

the Congress of the United States is a very open body, and when

people say that things are done in secret, that is not true. A congressional hearing, as my good friend from Michigan pointed out,

is a public hearing. There is a transcript and a record. The only

thing it does not have is the ability to put a face and words on a

living screen that can go to tens of millions of people, the image

never to be called back.

The instantaneous ability through modern science and technology to ruin an individual is the question we are really faced

with here.

How do we interface with this new technology in a parliamentary

democratic system?

I am not sure, but I certainly do not think that the right of an

individual that has been protected by precedent and by 27 years by
36

rule should be summarily changed in 48 hours. I see no reason for

that.

I find that there will be a disturbing negative impact if this rule

is passed. If I were a counselor and I had a witness who was subpoenaed before the Congress of the United States, I would encourage that witness to examine every potential possibility that he

could legitimately plead the Fifth Amendment. If a witness under

subpoena does that, you receive neither a picture nor a testimony

that can injure that witness.

Some can say, that can be overcome because the Congress can

grant immunity, and I would agree with you. But immunity does

not require a simple majority of the committee; It requires a twothirds vote of the committee. Therefore, you will have to have a

participation in most instances of the Majority and the Minority

coming to a reasonable conclusion that that action should be taken.

That supermajority, at the very least, should be a portion of this

rule, that an individual would have a right to request the permission of cameras and recordings be turned off. However, his privilege or asserted privilege or right could be reversed if two-thirds

of the member of the committee thought it so important that he be

pictured live. At least that would protect the Majority and the Minority, and for all intents and purposes, take it out of a partisan

or political consideration.

I do not know and have not had the time to examine this case

law, Mr. Chairman, but I seem to think that Solomon versus New

York Times says that if you become a celebrity, you lose certain liable and slander protections under the law. Of course, we know

there is immunity for testimony before the committee, but if a witness is called to testify before the Congress, it would seem to me

that he becomes a public celebrity.

At that point, that image recorded and reproduced a thousand

times for a thousand days will subject him to all kinds of embarrassment, can be made a ridicule on any television program, or can

be reproduced in the newspapers, all to his great detriment. That

image can not be made to the service of enlightenment, not to the

service of legislation, but we now take that private individual and

make him a public property to be exposed to all kinds of things

without any of the protections of the law. The Supreme Court, and

I think for good reason, saw the protection of the first amendment

and ruled in Solomon versus New York Times that public individuals could not just sue; they would have to have a standard which

the libeler or slanderer violated.

Now, I would make this final point. We have had two recent

trials in the United States. One is the murder trial of O.J. Simpson. There is not an individual in this room that could identify the

photograph of a member of the jury of the O.J. Simpson case. I

think that situation was properly handled.

Most recently, in Massachusetts, in the case of a young lady tried

for murder, again, the jury was sequestered from the observation

of television and the public.

I would think we would have to ask the reason why, and I think

it is very simple: If you become controversial or involved in a controversial idea, you are subject to social and political retribution.

I do believe that many of the witnesses that are subpoenaed before
37

the committee are coming here against their will. These witnesses

have no desire to be subjected to such process, but under the Constitution are forced to come there to provide a greater benefit to the

society as a whole. Now the minimal protection that this House 50

years ago granted individuals is to be summarily ripped out from

its roots to satisfy political desires over the next 60 days. I believe

this change is being done for a partisan political purpose.

I would agree with Mr. Moakley’s questions of why should a deliberative body not deliberate when fundamental rights of American citizens are at stake? Can anything be so compelling in these

hearings before the Government Reform and Oversight Committee

that we should dismiss and run to judgment on revoking a rule

that has existed in principle and, in fact, for 50 years to the great

protection of the American people?

I would urge the committee, one, not to return this resolution to

the House; and two, if we differ, and reasonable people can, to at

least provide for a bipartisan, nonpolitical purpose that the right

can be asserted and only reversed if the same vote carried that

would carry on immunity. In that instance, at least it would require something more than an emotionally charged Majority with

denying or running amuck on Minority rights and individual

rights.

I urge you, as a person who has taken part in all of these hearings, there is absolutely no good reason to subject many of the decent and innocent people that will be called before the Government

Reform and Oversight Committee to something more than just

being examined by Congress but, in fact, to be embarrassed in their

community.

I would suggest there are many other people that would not

want to come before the committee. Those that are in the Witness

Protection Program may not even have the ability to tell us that

they are in that program. The location of people who are subject

to abuse, is then known. Some people may get financial retribution

if they appear in public. All of these things are casting aside in a

big net and we are just saying for purely political and partisan purposes to the American people, we just do not give a damn about

your rights. And I think that is wrong.

[The prepared statement of Mr. Kanjorski follows:]
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The CHAIRMAN. Let me just respond to Mr. Kanjorski first and

then pose a question to Mr. Dingell.

But, you know, you are one of the most respected Members, seriously. I say that about a lot of people, but you are, and I consider

you a friend, and I know everything you said was sincere, but it

bothered me when you sort of inferred that this committee was

doing this for political expediency, political reasons, and that bothers me.

Mr. KANJORSKI. Mr. Chairman, I certainly do not want to imply

what this committee is doing. I understand this is being put forward by a Member of the House, not this committee.

The CHAIRMAN. Well, it has been put forth through a member of

the media, Mr. Vic Ratner, who you all know. I mean, he has notoriety and he has requested this of this committee a number of

times and just recently about 3 weeks ago.

But let me tell you what I think. I do not get too excited about

campaign finance violations. I know these are serious matters, but

I tell you what I do get excited about, and that is economic espionage that hurts jobs in my district. I get excited about national security breaches and I get excited about foreign countries, particularly those that I don’t like, who have a philosophy which I think

goes against everything I believe in, and that is the People’s Republic of China trying to influence this government. Those things

excite me, and I get mad.

Mr. KANJORSKI. Mr. Chairman—

The CHAIRMAN. Let me finish. Just a minute now. And, therefore, if this Congress is going out of session in the next 4 or 5 days,

which I expect it to do, I would hope that we would be able to make

this small change.

Now, having said that, let me ask a question of John and then

you can respond. John, you mentioned that you were not inhibited

by this rule in any way.

Mr. DINGELL. We were never in the slightest degree inhibited. I

know of no other committee which has in any way been inhibited.

The CHAIRMAN. Okay.

Mr. DINGELL. I am unaware of any member of the media who

has been inhibited in gathering all the facts and all the information

he needed. I know of no citizen who has ever been denied the fullest possible information on citizens who invoke this rule, or on proceedings in which this rule was invoked.

The CHAIRMAN. Has any Member—

Mr. DINGELL. I am totally unaware of any need for doing this.

The CHAIRMAN. To your knowledge, has any Member of the Senate ever been inhibited by this rule?

Mr. DINGELL. This rule does not apply in the Senate. This is a

House rule.

The CHAIRMAN. So the rule that we are attempting to repeal does

not exist in the Senate?

Mr. DINGELL. I don’t know what the Senate rules provide. All I

know is the Rules of the House, and I know why they are—I know

why those rules are here. They are here because of some rather extraordinary abuses, most of which took place in the Senate, but

some of which took place here.
44

The CHAIRMAN. The point—

Mr. DINGELL. That brought great opprobrium and great disgust

upon this body and upon that body and upon those who abused the

rights of citizens in the proceedings which triggered the creation of

this rule.

The CHAIRMAN. The point I was trying to make is that this rule

does not exist in the Senate.

Mr. DINGELL. I don’t know whether it does or doesn’t.

The CHAIRMAN. And it has gone without incident for many, many

years now, as long as you have been in this Congress. So what we

are attempting to do is to conform this rule with those of the Senate.

Mr. Kanjorski.

Mr. KANJORSKI. Mr. Chairman.

Mr. DINGELL. Are you prepared to conform every rule in this

body with the rules of the Senate? Is that such an important goal?

The CHAIRMAN. No. I am just making a factual finding.

Mr. KANJORSKI. Mr. Chairman, unlike my colleague in the Senate, Mr. Torricelli, that was present at some hearings 8 days before

he was born, I can recall the McCarthy Army hearings. I sat there.

I served as a page in those hearings and I saw many individuals’

lives ruined in the course of those hearings and during the course

of that whole era. There are still American citizens that have lost

their productive years in capacities because they were in some way

indirectly or directly associated, sometimes improperly so, with

communism. They have never recovered from that.

I think for us to cite the Senate and when we go back to McCarthy hearings as justification for not having protection is foolhardy.

If ever a body does need a protection, it is certainly the Senate. But

I understand that is based on each committee’s decision on itself

according to the rules. In the Senate, there is such a thing as comity which the House in most recent time has lacked, as you know.

The comity I sometimes think exists in the Senate because the Minority is able to tie the Senate up for considerable periods of time.

In the House, the Minority does not have that protection.

The CHAIRMAN. Mr. Moakley.

Mr. MOAKLEY. No, I just appreciate the testimony. I, too, remember the McCarthy hearings and, in fact, Joseph Welch, the great

lawyer, was from my hometown. It was masterful, but absent him

that thing could have destroyed many, many more people and it

was the—well, they have even had movies about it and many times

on PBS shows that would run the trials and it was terrible. Just

the possibility that that could happen again should be enough not

to change the rules we have got now.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much, Mr. Moakley.

Mr. Dreier.

Mr. DREIER. No questions.

The CHAIRMAN. Mr. Goss.

Mr. GOSS. No questions.

The CHAIRMAN. Any questions of the witness? If not, gentlemen,

we appreciate your coming. As usual, we respect your opinion. We

may not always agree with it.
45

Mr. DINGELL. Well, we have no great hopes that we have convinced anyone, but I think history will, Mr. Chairman.

The CHAIRMAN. You are very convincing, John. You always have

been.

Mr. KANJORSKI. Mr. Chairman, I would appreciate if the committee would consider the two-thirds protection rule. This rule is going

to last a long time in this Congress. Many Members are going to

come to serve after we have been here.

The CHAIRMAN. We appreciate your coming, sir.

The next scheduled witness is Mr. Stanley Brand, the former

House counsel of the U.S. House of Representatives. Stanley, if you

would like to come forward. And, again, you have, I think, testified

before congressional hearings before.

Mr. BRAND. Yes.

The CHAIRMAN. You are familiar with the proceedings.

Mr. BRAND. I am.

The CHAIRMAN. You may summarize. Your entire statement will

appear in the record without objection.

STATEMENT OF STANLEY M. BRAND, FORMER HOUSE

COUNSEL, U.S. HOUSE OF REPRESENTATIVES

Mr. BRAND. Thank you, Mr. Chairman.

The CHAIRMAN. Would you withhold for just one minute?

Mr. BRAND. Yes.

The CHAIRMAN. Mr. Brand, if you would like to continue, sir.

Mr. BRAND. Mr. Chairman, thank you. One of the staff was reminding me about the last time I was testifying in this room was

actually after the one House veto case which I argued and lost in

the Supreme Court. So I give that as a disclaimer. I don’t know if

you want to listen to what I have to say now, but I offer it in any

event.

The CHAIRMAN. Mr. Brand, don’t think I am leaving because you

said that. But I have to take a phone call in the other room.

Mr. BRAND. Sure.

The CHAIRMAN. Mr. Dreier will take over. I will be right back.

Mr. BRAND. I can’t really improve on either the history or the

basis for the rule that Mr. Moakley gave in his opening statement

or that Chairman Dingell, former Chairman Dingell, gave when he

was here.

What I would like to do is zero in on a couple of points, if I could,

and add maybe some practical legal reasons why I think this rule,

as presently constituted, is a good idea.

The first of those revolves around the fact that in the modern era

what has come to pass is the phenomenon known as parallel investigations. Nothing gets investigated anymore by one agency or by

one committee. There is a tendency for each to pursue its own jurisdiction, so that you have simultaneously proceeding congressional investigations and hearings, Department of Justice investigations and hearings and State and Federal agency investigations.

To the extent that the rule tamps down the pretrial publicity

that surrounds many of these parallel proceedings and denies to

witnesses later claims that the public has been inflamed and that

their ability to get a fair trial, given televised hearings on the same
46

subject matter, I think the rule does serve a salutary legal purpose.

There is a famous case involving ironically, in light of the discussion in the committee tonight, an IRS agent called Delaney versus

United States.

Delaney was under criminal investigation. He was simultaneously called and indicted and called before a congressional committee. The committee refused to desist until the criminal trial proceeded. He was convicted and his conviction was reversed, because

the Court of Appeals said that the pretrial televised publicity surrounding his case denied him a nonprejudiced jury.

Had the television rule existed at that time, that was in 1952,

before the enactment of the current rule, it could well be that a

court would not have found that that tainted and infected the proceeding and that, in fact, his conviction could stand. That is at

least one example of the way in which I think the rule can have

a beneficial effect on the congressional proceedings themselves, by

not allowing a defendant’s attorney, the defendant himself, to use

the publicity generated by the congressional hearing as an excuse

for avoiding his conviction.

We have seen in recent hearings just concluded in the Government Affairs Committee in the Senate that one essential element

of proceeding effectively in the Congress is that the people who are

subpoenaed have due regard for the powers of the committee.

When the people against whom these subpoenas are directed perceive that the power is being unfavorably applied, it can have serious consequences. In that case, a broad array of groups across

the—across the political spectrum resisted subpoenas that were

issued by the committee, forcing the committee to either forego

compliance or narrow its request.

I think rules like clause 3(f)2, under Rule 11, have served as a

bulwark for fairness to witnesses. As former Chairman Dingell indicated, the witness really has very, very few rules that he can

mandatorily invoke. He has many rules that, as a matter of discretion or act of grace, the committee can confer on him.

His role of counsel is limited. He can’t cross-examine witnesses.

He can’t appeal from overrulings of objections. He is really very seriously limited. The one thing he can do with absolute certainty is

shut off the TV cameras in connection with a highly charged and

volatile committee hearing.

And the last point that I would make on that is that if you look

at the history of the hundreds, literally hundreds, of congressional

oversight hearings that have occurred since the beginning of the republic, somewhere I read one time in the realm of 700 or 800, I

think we could count on one hand the number of witnesses who

have been able to invoke this rule or who have even decided it was

in their interest to invoke the rule.

This is not a rule that a lawyer can easily advise a client to invoke. There is public opprobrium oftentimes associated with advising a witness, as I did, in the Marcos investigation, to invoke this

rule. It engages the ire of the media who literally chased the witness and I down the hall through the caverns of the Rayburn

Building screaming and yelling, how dare we turn off the TV cameras. And it also sets up the witness for the sense that somehow
47

they may have something to be concerned about or hide. Why else

would they turn off the cameras?

So it is not an automatic knee-jerk reaction that every client in

every situation wants to turn off the television cameras. It is reserved for those few and far between cases, where the witness, as

the legislative history of the rule indicates, has a serious, serious

question about whether he can get a fair hearing in light of the

sometimes disruptive and distracting element of TV coverage.

I think at this time in our history, Congress—and I speak of this

as a person who believes in the Congress, having worked here for

8 years as counsel and defended it in court, it doesn’t need another

reason to give to its detractors to disrespect it and in some cases

to actually disobey its processes. I think it is a rule that has served

well in those narrow few cases where it has been used and has

been pointed out does not inhibit or stop a congressional committee

from doing its constitutional duty.

[The prepared statement of Mr. Brand follows:]
48
49
50
51
52
53
54

Mr. DREIER [Presiding.] I appreciate your perspective.

Mr. BRAND. Thank you.

Mr. DREIER. Mr. Brand. That’s very helpful.

Mr. Moakley.

Mr. MOAKLEY. Stan, great job. Right on point.

Mr. BRAND. Thank you.

The CHAIRMAN. Mr. Goss.

Mr. GOSS. I am sorry. I am very puzzled by that. It seems to me

you build credibility when you have government in the sunshine.

You are talking about a fence of somebody who is subpoenaed here,

and the disruption of the television. And I don’t see that a wellrun hearing creates a disruption of a proceeding.

Now, if you are going to tell me that if this rule changes and we

are going to stop grandstanding by Members of Congress in front

of TV or something, I might be persuaded that you make a very

good point, right on target. That might do it. There is probably

some evidence for that.

But I am having trouble trying to figure out, since the other protections are already there, the national security protections, somebody can take the fifth, you know, you go right down the line, the

personal protections and the constitutional protections, what we

are doing—I am trying to find out why it is that we enhance our

credibility as an institution by saying we don’t want the public to

see this.

Mr. BRAND. Well, as has been pointed out, Congressman, the

public—they are not seeing it contemporaneously on TV. It is being

transcribed. The press is able to—

Mr. GOSS. It is being spun, too, I am sure.

Mr. BRAND. It is being transcribed. It is available for anybody

who wants to sit and listen. It is not a secrecy rule. It is simply

a rule that requires the television cameras be shut off, not that the

hearing be conducted in executive session.

Mr. GOSS. Yes, but that’s the radio, and, you know, this is the

watchdog of government out there being told they can’t do their

job. It seems to me you create a bigger problem for your witness,

such as you have described being chased down the hall. Surely you

got more publicity being chased down the hall than you would have

gotten from straightforward answers in a committee room.

I would be happy to yield to Mr. Moakley.

Mr. MOAKLEY. Will the gentleman yield?

The TV media and radio aren’t precluded from coming into the

hearing room.

Mr. GOSS. Right.

Mr. MOAKLEY. And writing their notes down. They get pictures

of the witnesses coming in, pictures of them going out. They can

spin their entire story on TV so they are really not—it doesn’t preclude them—it doesn’t freeze them out of the process. The thing is

that, you know—you are a former agent of the CIA. You know that

when a person is brought before a legislative committee, he can be

the toughest guy in the world but he is going to start sweating, he

is going to stammer, he is going to give motions off that may elicit

some erroneous feelings on the part of the people watching him.

And some of the statements coming from this side of the table can
55

be very misleading from a hostile witness and he has got no right

to appeal. I mean, I think it is—I think the press should be there

and the people have a right to interview him coming in and coming

out. But if a fellow is mandated, subpoenaed before a committee,

against his will, I think he should have a right to say, please turn

off the cameras and radio.

Mr. GOSS. Well, I am willing to debate that point, but I don’t

think that the argument that you have made is persuasive to me

on the point.

We have C-SPAN, and we all agree that C-SPAN has been a

good thing for democracy. Now, you could say that it is lousy theater. You could argue that probably a lot of people are disillusioned

about how democracy works.

Mr. MOAKLEY. Why don’t we move them into the Federal courts

if it is that great?

Mr. GOSS. Well, the jurisdictional problem is there, but the other

question that I would raise, you know, back in the case in 1952

that you cited, I would agree with you that in 1952, television was

probably quite a thing. I don’t think we had television in 1952. I

am a Member of the House. I don’t have the same vivid imagination as Members in the other body, perhaps, but I don’t remember

television in 1952. And I can imagine if there was television in

1952, that it would have been quite a big deal.

But now everything is on television. In fact, there is so much on

television, the natural instinct of my family is to turn it off because

it is a distraction to whatever else you might be doing which might

otherwise be useful.

So I think the times have changed very much. I argue just the

other way, that you are creating a mystery. You are creating a

question of why won’t they let us see this?

And I think that very much is the tendency of the press. And I

think you create a bigger problem for your witness than not. So I

am just telling you that, while I understand the point you have

made, I come down just exactly on the other side of the fence on

it.

Mr. MOAKLEY. I think it is because of your training.

Mr. GOSS. That could be.

Mr. BRAND. I, for one, wouldn’t equate, by the way, the interests

of a witness in claiming the fifth amendment with turning off the

television cameras. That is obviously a different set of considerations.

Mr. GOSS. Well, it is.

Mr. BRAND. And waiving the assertion of those rights.

Mr. GOSS. But you are making a distinction as a professional, as

a man who has a great deal of expertise and knowledge and training in an area where you can make the distinction correctly and

aptly.

I am talking about the guy out there at the other end of the television. I mean, they don’t understand it. The guy doesn’t want to

be seen, he doesn’t want to talk, won’t let us see what is going on.

That is how it comes through. There is no distinction there. You

know, he is hiding behind the fifth. He is running down the hall

with a bag over his head, whatever it is. There is something to hide

there. That is not dignified.
56

You know, government in sunshine works. We do it in Florida.

It is an amazing thing.

Mr. MOAKLEY. Again, this is government in the sunshine. The

problem is that we don’t have to do everything—to titillate every

viewer that wants to see some fellow pressured and squeezed and

asked leading questions that he can’t defend himself against. I

mean, that person, even though he says turn off the cameras, turn

off the television, he is not saying I am taking the fifth. He is a

willing responsive—he is responding to the questions that are

asked. But he just doesn’t want everybody in the world to see

somebody who might be a—how many times have you been in a

hearing and seen a hostile Member who just wants to go after a

fellow?

Mr. GOSS. Right. Reclaiming my time on that, to answer.

Mr. MOAKLEY. All right.

Mr. GOSS. I will tell you that I think quite often it is the Member

who comes out second best. I mean, I can think of some very remarkable hearings, and I imagine you can, too—you have been

here longer than I have—where the potted palm did a lot better

than the guy on this side of the dais.

Mr. MOAKLEY. Absolutely. But if you are the potted palm you feel

awful uncomfortable at times.

Mr. GOSS. There is still the opportunity for the committee to shut

down.

Mr. MOAKLEY. You are taking away an individual’s right and

supplanting it with the majority of a committee. That is not a fair

thing.

Mr. GOSS. I have a little problem with that, because presumably

we are in a system here and the system is run, and when somebody comes before a committee with a subpoena, there is a process

involved. There is an expectation that these things are going to

happen.

Mr. MOAKLEY. Yes.

Mr. GOSS. Now, if that witness had his druthers to do all things

he wanted he would probably get up and walk out the door and

say, no thanks I would rather not.

Mr. MOAKLEY. But he can’t.

Mr. GOSS. That is the point. He can’t.

Mr. MOAKLEY. He is there against his will. The least we should

do is let him apply probably the only right he has got remaining,

the only right he has got remaining.

Mr. GOSS. I would suggest he has lots of rights remaining. It is

guaranteed in the Constitution. But it would appear to me that it

is the responsibility of the committee who has brought him there

to make sure that fairness is observed. So it is not the witness’

right. It is the committee’s responsibility.

Mr. MOAKLEY. Well, usually if the committee brings him before

them, they have got some kind of idea that he has done something

wrong and they are not going to ask him questions.

Mr. GOSS. It might be just a supportive witness.

Mr. MOAKLEY. Well, no use arguing it here, but I think we have

made our points.

Mr. GOSS. Thank you.
57

Mr. DREIER. The argument that I was making before you came

in, Porter, and actually Paul Kanjorski sort of referred to this, he

talked about the comity that exists in the Senate versus the harsh

partisanship that exists here, and it does seem to me that there

can be some reasonableness on occasion.

You can use the 9 to 4 ratio here as an argument against that,

Joe, but I think that if a Member of the Minority who may be

working or, you know, have some rapport with the witness, makes

a compelling case, then I think it would be quite possible to get

votes from those in the Majority.

Mr. MOAKLEY. Would the gentleman yield?

Mr. DREIER. Yes.

Mr. MOAKLEY. As a Member who is one of four, being one of four

for about 2 years now, at least—3 years now.

Mr. DREIER. Almost three if we adjourn on Sunday.

Mr. MOAKLEY. There are only two votes I can recall that were

8 to 5. The rest were 9 to 4.

Now, don’t tell me that some of those witnesses didn’t have compelling stories to tell.

Mr. DREIER. Well, we haven’t had—these are procedures for moving down to the floor. But the ratio that we have here is obviously

different than it is in a lot of other committees. I mean, you know

that this is a much different setup than there are in investigative

committees. We don’t do those sorts of things in the Rules Committee.

Mr. MOAKLEY. You know the votes are already counted before

the people come in.

Mr. DREIER. On occasion.

Thank you, Mr. Brand, for being here.

Mr. BRAND. Thank you.

Mr. DRIER. I am sorry. Before you leave, are there any questions

from Sue or Mr. Hastings?

Mr. HASTINGS. No.

Mrs. MYRICK. No.

Mr. DREIER. Mr. Hall? I am sorry.

Mr. HALL. The only thing I had to add—and I came in the middle

of what Porter was saying—was the fact that—you raised the issue

and maybe I have it out of context about we have C-SPAN on all

the time. The fact is we are politicians, we volunteer for this job.

We know what we are getting into. We are used to the cameras.

We should be used to the cameras after a while. The people that

are subpoenaed before the committee might be very, very innocent.

They are not politicians for the most part.

Mr. GOSS. I agree.

Mr. HALL. And it is a scary thing.

Mr. GOSS. I agree.

Mr. HALL. To be subpoenaed in the first place and then to have

to have your picture taken—they ought to have some rights. For

the most part a lot of them are probably innocent.

Mr. GOSS. If the gentleman would yield back. I would agree that

that is a possibility that can always happen, and that can always

happen with the testimony and the committee has the right to deal

with the testimony in such a way that there is no defamation and

so forth.
58

But the other side of this—see, this is a legitimate argument. I

am not trying to be cute here in any way at all. There is, in my

view, a very compelling reason to do the public’s business in public.

I have seen all of the consequences of it done in public and there

are miscarriages of justice sometimes when it is done that way because the sunshine is indeed very bright and some can tolerate it

better than others, there is no doubt about it, but I have seen much

more egregious violations of government out of the sunshine in my

years of experience and at the level of State and local and the Federal level.

So I have come to the conclusion I would rather err on the side

of letting the sunshine in. I don’t mean to say there aren’t times

when it is appropriate to take things out of the sunshine. National

defense is clearly one. National security I feel very strongly about;

a grotesque injustice, a threat to a witness, something like that,

bodily harm that type of stuff. But I think that we have already

got those provided for.

So I think what we are really talking about now is convenience.

I don’t really want to be seen on television and so I am going to

use my right to shut it off. And I am not so sure that the public’s

right to see what is going on doesn’t override that.

Mr. MOAKLEY. Will the gentleman yield?

Mr. DREIER. Actually, it is Tony’s time.

Mr. MOAKLEY. Will the gentleman yield?

Mr. HALL. Yes.

Mr. MOAKLEY. I wish the gentleman were here, and I really

mean this, to listen to the testimony of John Dingell who has had

more hearings than all of us combined.

Mr. GOSS. I am sure.

Mr. MOAKLEY. Telling how awesome it is the power that the committee has in the way the witnesses feel. I don’t mind sunshine. It

is the moonlight that I am afraid of.

Mr. GOSS. Well, if the gentleman from Ohio would yield?

Mr. HALL. I yield.

Mr. GOSS. If you would allow me to respond to his observation

and pass it along to the gentleman from Massachusetts, I will tell

you that when I came to Washington I was astonished at the lack

of manners here, what I thought were good manners, and I was

horrified at the way people beat up on witnesses that came up.

The Foreign Affairs Committee comes to mind. It was hugely unfair, I thought, and partisan and aggressive and I am not sure

much good came out of it. And I am not sure that the people who

were asking the outrageous questions or the nasty questions actually won any friends or respect among their colleagues or scored

any points or got any useful information out or furthered the purposes of the committee.

I think the way you deal with that is to stop that on the committee, to the best of your ability. Now, you can never stop an individual Member from making a fool of himself or herself, I suspect, if

they are determined to do it. But I think a strong Chairman, with

support—it is part of the responsibility. I understand the responsibility of any witness who comes in front of my committee and I

try and protect that individual’s rights and if there was an overwhelming reason, I would go to each Member and say I think we
59

are going to close this and I would tell him why, and I would hope

to get—I hope that’s the right way to do it.

I agree, I mean, we are talking very narrow degrees here and a

spectrum where we are pretty close to each other. Thank you for

yielding.

The CHAIRMAN [Presiding.] Are there other questions? If not, the

Chair would now call Peter Robinson, former Assistant Parliamentarian, U.S. House of Representatives, along with Charles Tiefer,

former General Counsel for the U.S. House of Representatives. If

you don’t mind, gentlemen, we would like to try to expedite the

hearing.

Peter, since you are first on the list, why don’t you proceed. Your

entire statement would appear in the record without objection.

Take whatever time you feel is necessary.

STATEMENT OF PETER ROBINSON, FORMER ASSISTANT

PARLIAMENTARIAN, U.S. HOUSE OF REPRESENTATIVES

Mr. ROBINSON. Well, thank you for having me today. Frankly, a

lot of what I was going to say has already been said so I will kind

of cut to the chase.

Mr. MOAKLEY. You are used to that, Pete.

Mr. ROBINSON. That’s right. Actually, when I came to the House

Parliamentarian’s Office in the early 1970s this rule was just being

adopted and taking place. I do have a fairly clear recollection that

the witness protection part of it was conceived to be part and parcel of the whole bit, that if you were going to broadcast committee

hearings that this right was very important.

And if you go back and read the record of the debates in the

1950s, where those Members who thought that committee hearings

ought to be opened up to broadcast media, and they would continually ask Speaker Rayburn, well, isn’t this allowed under the rules,

and he would steadfastly say from the Chair, it is not allowed

under the rules, under the present state of the rules and hearings

cannot be broadcast. But if you read the statements of these Members, like Javits, Meader and the alternatives that they were put

forth in terms of resolutions, they always had—accompanying the

broadcast of hearings question, they always had this right included

as if it had become just part of the same deal.

There is not a lot of legislative history on the Legislative Reorganization Act of 1970 when it came out of this committee and the

committee report just basically recites what the rule on witness

protection rights says, as if it were simply to be naturally assumed.

In my experience, there have always been individual cases of

hearings where specific Members have been frustrated by the rule

and its operation and unable to publicize what they wanted to publicize. I don’t think until this point that there has been any kind

of consensus that it has been an inconvenience to committees operating.

Of course, it is argued that 1997 is a different time than 1990;

that witnesses can be caught coming or going, and that the Senate

does not have a comparable rule. I kind of agree with those who

say, however, once it is out, it is out. If there is going to be prejudice from broadcast coverage once it is out, it is done.
60

With respect to following the Senate, which I would certainly not

argue for in too many cases, I would point out that the Senate does

have a rarely invoked Senate rule and that if you repeal this rule

and leave in place only clause 2(k)5 of rule 11, the defame, degrade

and incriminate rule, that the Senate actually has a broader test

for witness protection in closing hearings.

Now, it is true that under the Senate rule the witness cannot invoke the rule. It is totally at the committee’s discretion. But what

the Senate rule says is that hearings can be closed if matters to

be discussed will, quote, ′′tend to charge an individual with crime

or misconduct, to disgrace or injure the professional standing of an

individual or otherwise to expose an individual to public contempt

or obliquity or will represent a clearly unwarranted invasion of the

privacy of an individual.′′ My main suggestion on this whole issue is that the committee

proceed cautiously. Of course, that is my bias. Parliamentarians

don’t like to change rules, especially if they have been around for

a while. I do think some of Stan Brand’s points are very well taken,

and that the—really the committee ought to look into some of the

legal ramifications of this and get a full input from the legal community, the academic community, the media community, for that

matter.

It may be an unintended consequence of this rule that if you repeal this rule, that there, as some have indicated, will be a much

greater tendency to try to invoke clause 2(k)5 of Rule 11, the defame, degrade or incriminate rule, perhaps in frivolous cases, requiring the committee then to assemble a full quorum and to vote

on that issue.

And the other consequence may be simply that for this informative process an investigation is supposed to be that a witness who

can’t turn off the cameras is going to be, as others have noted and

as Edward Bennett Williams wrote, may be uncomfortable, less articulate and probably less forthcoming.

One final point. Clearly, this rule exists for the protection of the

witness. That is how it was conceived. But you might take the

point of view that it also is a protection for the institution; that it

gives some breathing space; that it is an escape clause and that it

shows that the institution believes in fundamental fairness. That

is one way to look at it.

I think on this issue, you kind of agree or you don’t. Those are

my comments.

The CHAIRMAN. Well, Peter, we appreciate your insight into this.

It is a complex issue.

Mr. ROBINSON. Very

The CHAIRMAN. Mr. Charles Tiefer.

Mr. TIEFER. Thank you.

The CHAIRMAN. Your statement will appear in the record without

objection as well.

STATEMENT OF CHARLES TIEFER, FORMER GENERAL

COUNSEL TO THE CLERK, U.S. HOUSE OF REPRESENTATIVES

Mr. TIEFER. I appreciate that. Since so many points have already

been covered, I can skip a number of things that I was going to

say. I am testifying based on my experience as Solicitor and Dep-
61

uty General Counsel of the House for 11 years, and as a full-time

professor of legislation.

The origin of this rule in the McCarthy era and the reaction

against that era’s abuses have been discussed. One thing that I

want to underline is that there has been a memorable history of

the operation of this rule. It is true that it is not invoked often, but

it is invoked sometimes on occasions of great moment.

One has been mentioned and that was in 1989, when former

HUD Secretary Pierce was brought back to a hearing. He was

brought back to a hearing specifically because it had to be determined whether he really was going to take the fifth amendment or

not. He had testified before in hearings about the HUD scandal at

an early stage. Then the scandal became much more serious. And

the question was, was he willing to continue his previous testimony

or was he now going to say, I must claim my right, my fifth amendment right against self-incrimination?

There are other instances when this rule has come into use for

a witness who wants to take the fifth amendment. In a very controversial matter, much debated by civil liberties people on one side

and by congressional investigative people on the other side Congressional committees have retained the power to say, you must

appear in public. If you are going to claim the fifth amendment, we

have the right to test whether you, in an open and formal proceeding, are going to take this fifth amendment right or not.

And what this rule has meant—another instance when we came

close to the use of this rule, was when Oliver North and John

Poindexter appeared before the House Foreign Affairs Committee

in December of 1986. They seriously discussed, through their counsel, invoking their right. They knew they had it. It mattered a lot

to them, that they could say, we are not—we are not appearing

here under the gun. The fact that the—or, rather, we are appearing

here under the gun, but it is we who are allowing the television

broadcasting of our testimony to occur. We could shut the cameras

off—

The CHAIRMAN. That is right.

Mr. TIEFER. —if we intended to. We have chosen to let the public

watch as we take the position that we are going to take.

And those are examples of why this is considered a rule that is

ultimately fair to witnesses. I use the analogy in my testimony of

a witness who has to take the fifth amendment right in public. It

is necessary for the openness and the publicity, the public sense of

the rightness of proceedings in Congress that the print press be

present; that the press be able to watch this; that a transcript be

prepared.

But, it is a permanent, in the minds of the witness, shaming of

some witnesses. And I think this is what Secretary Pierce felt like.

It is effectively as if you required them to appear in prison stripes

and that forever afterwards everyone who knew them was going to

associate their voice and their image with appearing as someone

who had said, I am subject to incrimination. In effect, someone who

will wrongly be perceived by the viewing public as having said, I

am guilty. I know I am guilty. I am admitting I am guilty. And

that is what-- why in the McCarthy era the shutting off of the cameras was considered of central importance and that is why for dis-
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tinguished witnesses who have taken this right, the House has continued to allow it, because there is something about the image of

someone being subject in public to an incriminating proceeding that

is considered to be unfair.

One thing I would say in my last point, something I would mention, there are two proposals before this committee, as I understand. One is the Barr resolution which would absolutely do away

with the Rule 11 right to shut off the cameras and the other is a

resolution by Congressman Ganske which would make the right

subject to a vote by a majority of the committee. That is similar

to the fact that a majority of a committee or subcommittee can

close hearings under 2(k)5. A majority of the committee or subcommittee could shut off the cameras if the witness invoked the

right.

Although I favor retaining the rule, I would urge you to either

give the House the choice or yourself make it that if you are going

to change the rule, you go to the Ganske formulation rather than

the Barr formulation, and it comes out of the scenario that I have

described.

You are going to be faced again in the future, whoever is in the

Majority, whatever the subject, with witnesses whose fifth amendment claim you want to test; witnesses, whether it is the current

campaign finance hearings or the HUD hearings who are going to

be taking the fifth amendment. If you have the Gankse formulation

at least the committee has the option of saying—the matter must

occur in public, but we will shut the cameras off. And that is an

option that is invaluable for the committee.

I think the existence of that option is one of the things that

Chairman Dingell had in mind when he talked about the Milken

situation and he said we can conduct our proceeding. Milken could

come in; we could do this. You throw away that option and you

force this shaming procedure that I have described to occur if you

go with the Barr formulation.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Tiefer follows:]
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The CHAIRMAN. Well, Charles, thank you very, very much. I

guess I did not understand, Peter, your description, saying that the

Senate version would then be broader than what is left with the

House.

As I read the language, the Senate rule says, matters which will

tend to disgrace or injure the professional standing of an individual

or otherwise expose an individual to public contempt or obliquity

or will represent a clearly unwarranted invasion of the privacy of

an individual. You compare that to Clause 2(g)(1) of Rule XI, which

says information which would tend to defame, degrade or incriminate any person, and it goes on to say other things. It seems to me

they are equally as broad.

The only difference I see, and that our staff has seen in analyzing the two, is that the Senate has one small clause which deals

with certain trade secrets, which we do not normally deal with in

the House of Representatives. We do not deal with treaties and

things.

But at any rate, Mr. Goss, do you have any questions of the witness?

Mr. GOSS. The only observation I wanted to make was Mr.

Tiefer’s comment on the question of, if there is a reason to close

down, who makes the decision. That is what we are arguing about,

I think. I would say the decision rests with the institution, and you

are arguing the decision rests with an element of the institution.

There has to be some justification of that, and I do not know

what the justification is, thinking of the protections that are already built in. That is why I am on the other side of the issue. I

can see your point. I think you are giving an abundance of caution

to the witness and tilting the field that way, and that could work

out, but I believe the responsibility is of a higher order, and that

lies with the committee.

Mr. TIEFER. I understand your point, Mr. Goss. Let me mention

something that has not been brought up which bears on your point.

That is, we currently have a situation where if it is necessary to

conduct hearings and to insist that the cameras roll, even when

you have an involuntary witness, the House can do so. That is, it

is possible when the House authorizes a major investigation, for

the House to include in the authorizing resolution that the particular investigating committee will not be subject to Rule XI. That occurred, to my knowledge, once. It occurred for the Iran-contra committee in 1987.

And the value of having that—I am going to describe that as the

current system—in the current system, ironically, it is this Rules

Committee that decides. This is the committee that processes the

resolutions for investigating committees. Just like for the current

investigation by the Government Reform and Oversight Committee,

it is this committee that processed H.Res. 167 that said it could

have deposition authority and overseas investigative authority. It

is this committee and then the House acting on the recommendation of this committee that makes the judgment how many, in effect, of these very powerful tools that an investigating committee

of Congress can have—these clubs with which it can beat a witness, how many will it have?
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And my knowledge of the report of this committee is a judgment

was made in H.Res. 167: for deposition authority, yes; investigative

authority overseas, yes. The ultimate H.Res. 167 did not include

the authority to get tax reports of witnesses. I take that as a positive sign that this committee engaged in a judgment process as to

how many powers to give out and whether it was an occasion to

give away the store, you might say.

The CHAIRMAN. You are absolutely right.

Mr. TIEFER. Okay. And that was a judgment that represented a

lot of maturity and wisdom, because there is a temptation to give

the store away. Some would say, give it away every time, and this

committee did not.

Similarly, on H.Res. 167, the committee could have said, oh, and

by the way, you will not be subject to the broadcast ban either. You

could have written that into H.Res. 167. You could have said the

Government Reform Committee will not be subject to the broadcast

ban for subpoenaed witnesses.

Why something does not appear in a final version of an investigation authorizing resolution is due to many factors. You could

have; you could still do that now. The current system, I think, is

a good system because it is this committee and the House, in effect,

that make the judgment as to when the broadcast ban will be in

effect and when it will not.

If you go to the Barr resolution, you go the full distance and you

say not only is it not this committee and the House that are acting

as a screen, nobody is acting as a screen. No matter how wise it

would be to give the witness rights, they will not have them any

more.

Mr. ROBINSON. I would add that I agree with Charles on that

point; that I would certainly prefer, rather than an outright repeal,

a vote of some sort, though I would think about that. I have not

had a lot of time to think about this, about some kind of standard

for that vote, and I am not sure what it is.

Mr. GOSS. There are so many different circumstances that you

can think about that come to mind. If you are dealing with an ethics committee problem you have a set of safeguards already built

in. If you are dealing with intelligence or national security problems, you have a different set of rules and a process for the House

where the House closes itself. I think we guide ourselves thinking

about sort of the edges of this rather than the normal business,

which is the public’s business.

I think we are throwing a lot of scare stories out there trying to

say, well, we might be giving something away here, where I think

most of the time we are going in the right direction, in the direction of sunshine, and the rest of the time we are counting on the

committee to be responsible. That seems to me to be a fairly reasonable way to do the government’s business.

I do not see the horror stories here. Going on a very bottom line,

the nugget, to me is, who makes the decision about whether television and radio broadcast and print media people are there doing

their thing; and I think that is the committee’s, I think it is the

institution’s decision. That is really where I am coming from on

this. Now, I do not expect the institution to roll over American citizens.
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Mr. TIEFER. Well, you have a valid point that you will still have

the procedure under Rule 2(k)(5), by which an investigating committee can go to closed proceedings.

I would suggest that there is a very strong and appropriate tendency in the House not to go to closed proceedings, and that what

you are doing is eliminating any middle ground; that either the

committee must close the doors and allow no visibility whatsoever

of what it is doing, or it must force the witness, as I have said, to

bare himself, in these incriminating–looking situations, to the TV

cameras. So you are taking away the middle ground.

Mr. GOSS. Right.

Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Moakley.

Mr. MOAKLEY. Are you not, in effect, eliminating the sunshine

policy that Mr. Goss has been talking about by going to that rule?

Mr. TIEFER. Mr. Moakley, I think that there is going to be, what

there was at the origin of this rule in the 1950s, when there was

debate over what to do about the McCarthy era excesses. There

was a fair push at the time to say if there is any hearing that is

incriminating for a witness at all, the witness should be able to

close it. Those were proposals made at the time. There will be a

thrust in that direction again if there is no middle ground.

Mr. MOAKLEY. Sure.

Tell me, what rights would the person coming before a committee

have if this right is stripped away from him? How can he testify

himself or appear to be innocent or whatever?

Mr. TIEFER. As I was listening to some discussion earlier that

suggested that witnesses in front of congressional committees are

in a wonderful position and have a lot of rights, you compare them

with a defendant in a criminal trial, who is not in the strongest position as it is. A defendant in a criminal trial can summon witnesses on his behalf, a witness in Congress cannot summon witnesses. A defendant has the right to confront people. A witness in

Congress has no right to confront people; under Jencks and Brady,

a defendant has the right to see the notes that the investigators

have compiled against him.

Mr. MOAKLEY. Discovery.

Mr. TIEFER. We have no Jencks and Brady for congressional witnesses.

Mr. MOAKLEY. Cross-examination.

Mr. TIEFER. He has no cross-examination powers.

Mr. MOAKLEY. And this is the people’s House. We are supposed

to protect people’s rights.

Mr. TIEFER. Well, it was mentioned earlier, you occasionally get

a congressional witness like Oliver North, who is able to battle the

committee, blow for blow. On the other hand, in the last year, in

the Government Reform Committee and the Senate, we have seen

witnesses whose command of English is not so great, and they appear—

Mr. MOAKLEY. On this side of the table.

Mr. TIEFER. Well, the ones I am referring to appeared terrified.

I am not sure about the ones you are referring to. But they looked

terrified to me.

Mr. MOAKLEY. Pete, both of you did a great job. Thank you.
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The CHAIRMAN. Mr. Hall.

Mr. HALL. No questions.

The CHAIRMAN. No questions.

Gentlemen, let me just say that I am impressed with your testimony. You both certainly have great experience in this area.

I am just a little concerned that we try to portray this as being

identical to the courts. I do not think it is, personally. I think there

is a separation of powers, that we have an obligation to look out

for the Constitution.

We are not here to convict people, we are not here to plea bargain, and so the roles are a little bit different. So we really are not

comparing apples to apples in this particular instance. But we appreciate your testimony and thank you so much for coming.

The committee is going to stand in very brief recess. There will

be an end of this vote momentarily, and then I understand there

are two or three 5-minute votes in series. We will reconvene 1

minute after the last of the series of votes, which should be in

about 15 or 16 minutes or so.

So if the last two witnesses, who are Mrs. Barbara Cochran and

Mr. Tom Dillon, will bear with us, we will be back just as soon as

we can. The committee stands in recess.

[Recess.]

The CHAIRMAN. The committee will come back to order. We have

two more witnesses that will appear in a panel, if they do not object, Mrs. Barbara Cochran, the President of Radio-Television News

Directors Association; and Tim Dillon, the Chairman of the Standing Committee of Press Photographers. And if you two would like

to come forward—

I do not have biographical information on you, Tim, but I do on

Barbara, and I just would like to call attention to the fact that Barbara Cochran was Executive Producer of Politics for CBS News and

supervised political coverage for all CBS News programs during the

1996 election cycle.

From 1989 to July 1995, Ms. Cochran served CBS as Vice President and Washington Bureau Chief. She directed CBS coverage of

the Bush and Clinton administrations, including coverage of U.S.

military involvement in the Persian Gulf War, the 1992 elections

and inauguration, and the Republican victory in the 1994 congressional elections.

An industry insider, Ms. Cochran’s career in journalism has covered almost 3 decades in Washington. In 1983, she joined the television ranks as Political Director for NBC News, later serving as

Executive Producer of Meet The Press. And something I enjoy saying is, she holds a master’s degree from Columbia University,

Graduate School of Journalism, in New York.

I am sorry, Tim, I do not have one of your bios. Would you like

to tell us anything about yourself?

Mr. DILLON. I am sorry. On such short notice, we did not have

a chance to get anything together.

I am the Chairman of the Standing Committee of Press Photographers and have been for the last year. I am a staff photographer

for USA Today and have worked in Washington since 1979. Before

this, I was with the Washington Star.
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The CHAIRMAN. You both were. How about that? Did you know

that?

Mr. DILLON. No. For the last 3 years.

Mr. MOAKLEY. You did not meet at the water cooler?

Ms. COCHRAN. No.

The CHAIRMAN. Well, let me welcome both of you here and apologize for having to keep you so late in the evening. It was a big inconvenience, and we apologize for that.

But having said that, I am most interested in your testimony

and, Barbara, if you would like to go first, your entire statement

will appear in the record, but take whatever time you need. And

likewise for Tim as well.

STATEMENT OF BARBARA COCHRAN, PRESIDENT, RADIOTELEVISION NEWS DIRECTORS ASSOCIATION

Ms. COCHRAN. Thank you. Thank you very much, Mr. Chairman.

It is a great honor to have the opportunity to testify before this

committee on a subject which is one that I have been involved in

pursuing at least since 1989, because this is a rule that has interfered with the ability of the organizations that I have worked for

to adequately cover events in the House. So I am glad to see that

you are considering making a change.

You did quite a nice job of summarizing my experience here. The

only thing I would add is that I also had experience in radio as

Vice President for News at National Public Radio during the time

when Morning Edition was created.

Over the years, numerous witnesses have invoked Rule XI to prohibit television camera and radio coverage of their testimony in full

or before subcommittee hearings. The public was denied, therefore,

witnessing through audio and visual coverage the testimony of

many important witnesses in key House proceedings. Among those

who successfully barred cameras and microphones in recent years

were relatives and associates of Charlie Trie in the investigation of

the 1996 campaign finance scandals; David Watkins, a former

White House aide in the White House Travel Office investigation;

Charles Keating, former president of Lincoln Savings & Loan; and

as has been mentioned here, Samuel Pierce, former Secretary of

Housing and Urban Development.

And, in fact, in 1989, the four networks, including CBS, where

I was then the Bureau Chief, went to court to try to get Congress

to open up coverage of hearings that he was attending. As we have

heard, that was denied and, in fact, the judge ruled that it was up

to the House to make those rules for itself and that the courts had

no jurisdiction. So since that time our only recourse has been to

seek from the House some kind of a revision in Rule XI.

Currently, clause 2 of Rule XI directly inhibits the ability of

radio and television correspondents to cover the proceedings of the

House of Representatives in an open and fair manner. No similar

prohibition exists in the Senate, as has been noted here. RTNDA

believes no basis exists for continuing to bar electronic journalists

from this kind of coverage.

As a preliminarily matter, the rule is biased against electronic

media. There is no rule barring newspaper and periodical reporters

from remaining in the room while a subpoenaed witness testifies.
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Thus, if a witness invokes Rule XI, print media coverage can continue unaffected, but microphones and cameras are the equivalent

of the pencil and pad of the print media, and these are prohibited.

In an era when the Supreme Court has recognized that disparate

treatment of different media is highly suspect, restricting the

rights of the electronic media to report on congressional hearings

cannot be justified absent a compelling showing that such coverage

would inherently have a unique adverse effect on the pursuit of

justice.

Precluding the electronic media from covering witness testimony,

while permitting access to others, may in fact violate the equal protection clause in the First Amendment. I would strongly urge government officials not to continue to discriminate between members

of the media in this regard.

Originally, the rule was deemed necessary to protect the rights

of witnesses, but given the proliferation of video media, that reason

is no longer justified. Witnesses can be captured on camera right

up until the moment they testify and immediately afterward. The

only recording that would be barred would be of the witness in the

committee room, and even those words, as spoken, are later available in transcript form.

Most importantly, in this modern age when most Americans rely

on the broadcast media as their primary source of information and

where advances in technology have eliminated any unique

logistical problems with electronic coverage, prohibiting full electronic coverage of these proceedings serves only to deny the public

access to and observation of important government proceedings.

Maximum public access has long been the ideal in our country,

and electronic coverage is the primary means through which realistic access to the workings of government can be provided to most

segments of the public. In part, this is a function of the importance

that radio and television now plays in individuals’ daily lives.

Radio and television news serve as the primary source of information for the public worldwide.

The House of Representatives and this committee have frequently led the way in providing public access to the proceedings

of this body. The House was the first to permit cameras to broadcast from the floor of the Chamber during regular business. The

104th Congress amended its rules to permit radio and television

coverage of all proceedings open to the public. We appreciate the

House’s willingness to address issues of public access and to seek

to provide coverage on an equal basis for all media. Repeal of

clause 2 of Rule XI would be another critical step in achieving that

goal.

I would also like to add that exceptions that you have mentioned

to protect witnesses’ safety, in the case of whistleblowers, who

might deserve some protection, have always been accommodated by

the electronic media. We have made accommodations for that kind

of coverage, and all we are asking for is equal treatment with our

colleagues in print.

The Supreme Court has noted that 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. The importance of openness to the workings of government cannot be
78

overemphasized. Through electronic coverage, people not actually

attending congressional hearings can have confidence that standards of fairness are being observed by their representatives in government.

Moreover, through radio and television coverage, the public is afforded direct and unfiltered access through the opportunity to hear

the witness speak his or her own testimony. This allows our citizenry to reach more informed conclusions regarding important and

often complicated issues.

In sum, witnesses called to testify before Congress should not be

allowed to hide from the public and the press. Hearings of significant public interest should be open to cameras as a matter of

course. RTNDA urges this committee to change Rule XI and to

open all public House committee hearings to full coverage by all of

the media.

Thank you.

The CHAIRMAN. Barbara, thank you very much.

[The prepared statement of Ms. Cochran follows:]
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The CHAIRMAN. Let me now turn to Tim Dillon and, Tim, again,

you may take whatever time you feel is necessary

STATEMENT OF TIM DILLON, CHAIRMAN, STANDING

COMMITTEE OF PRESS PHOTOGRAPHERS

Mr. DILLON. I will try to be brief. Obviously, I did not have

enough—quite as much time to prepare for this, as we were asked

to support the letter Mr. Radner wrote, and we certainly are in

agreement with everything they have said.

Most of the testimony today centered around the radio and television aspect of the Rule XI. Unfortunately, that rule covers our

gallery also. My main point in coming here, what I wanted to

stress, was that when a subpoenaed witness is testifying, print

media reporters are not barred from the room. They are covering

the remarks, the gestures, whatever, of the witness. And I, along

with all of the other members of my gallery, and the journalists

also, I just happen to work with a camera instead of a pencil and

pad.

I would tell you that we have at least ten members in our gallery

that have a Pulitzer Prize, which is journalism’s top prize. Most of

us went to journalism school. All of us have worked in the business

for a fair amount of time to get to the level to cover this sort of

news event. And I feel that we are covered by the same First

Amendment right that the print reporters are covered by. Removing us from the room at the point the witness says, I do not want

to have my picture taken, is equivalent to letting those people stay

in the room with the pads and pencils, but saying, you cannot use

them. They are taking my tool away, and they are not having their

tools taken away.

Mr. Goss had a point earlier about the potted palm. Rule XI

states that the camera has to be covered up, microphones

unplugged. Well, when you cover the cameras and you unplug the

microphones, you are doing that not only to the witness, but to everybody up on the dais. And as you pointed out, the potted palm

won that fight. I was there. And so was Mr. North.

If Mr. North had been in the House rather than in the Senate,

because that was in the Russell Senate Office Building where that

took place, he could have, which he did not, invoked Rule XI. I

doubt that Mr. North would now be on radio or own a bulletproof

vest company or that anybody would know who he was had he not

been on television. He was an instant, instant hit as a result of

that.

As a matter of fact, I went back to my newspaper, USA Today,

and the switchboards were jammed. It was like this guy is a hero

immediately because of his testimony.

I also might say that if I were a witness sitting here, and I was

a little nervous about something, I would more likely be nervous

about the Chairman who is going to ask me, where were you at 12

o’clock last night when such and such happened rather than a TV

guy over in that corner of the room. That would scare me.

I am sure there are a few people, like I had some people at work

that wanted to photograph me, and I was going to invoke Rule XI
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if they came up here to take pictures of me, but I understand that

they can be nervous.

The other thing I do understand is that in the Senate, where

that rule does not exist, I do not think there has been a problem

as long as I have been working in Washington. I realize this all

grew out of the McCarthy hearings. And back in the early 50s, I

can remember, Mr. Goss, watching the McCarthy hearings on television in 1952 because there was television then.

Mr. GOSS. We just did not have it.

Mr. DILLON. It was in black and white, but it was there. I do understand, and it has happened numerous times that there are

times when the witness cannot be photographed. The last instance

in the Senate that I can recall was the IRS people that testified.

They put a curtain up and you could not photograph them, but you

could still photograph the panel and the questions that were being

asked.

Other examples would be witness protection people, Federal witness protection people, or whistleblowers, or people who are testifying regarding national security. We all understand that those people have to be protected.

But my main reason for testifying is that in addition to supporting radio and TV, I am supporting my people because virtually everyone that I work with is working for print media, which is the

press, as in the First amendment; and I am not being allowed to

do my job, while my counterpart with a pencil is. That is about all

I have to say.

The CHAIRMAN. Thank you very, very much. Your testimony is

interesting and I, for one, do not believe that Members of Congress

ever distinguish themselves in a favorable light when they are arrogant or rude, as sometime Members of Congress are when they

are interrogating witnesses. I think that comes across in an unflattering way, and I, for one, would not mind keeping the cameras on

if that were going to happen, and then let the American people see

certain Members of Congress in action.

I think, for the most part, most of the Members of Congress are

polite, they are reasonable, and I do not think they would ever conduct themselves in a way that would harass the witness; but if

they did, I think the cameras ought to be on, and the American

people ought to see it, and then those Members ought to be

ashamed of themselves.

Ollie North happened to come from my hometown, and I had the

great privilege of nominating his two brothers, younger brothers, to

the military academies, one to West Point and one to the Naval

Academy. Neither of them made it, because their SATs were not

high enough, but they went on to become commissioned officers

and had very good careers in the other branch than the one Ollie

and I served in, the Marine Corps.

Let me just ask you, Barbara, you cover the Senate, as well, your

people?

Ms. COCHRAN. Yes.

The CHAIRMAN. In all of the years that the Senate has been covered by television and radio, do you ever recall an incident that

would have reflected badly on the Senate because of the cameras

being on?
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Ms. COCHRAN. No, I do not.

The CHAIRMAN. I do not either. I have been trying to recall and

done a lot of research on it, and the very fact that they do not have

a similar rule as we have does not seem to have made any difference as far as any abuses are concerned.

Ms. COCHRAN. No, they seem to have been able to operate just

fine.

The CHAIRMAN. And in both your opinions, if we were to repeal

this one rule, leaving in effect an almost identical rule to the Senate, that we would probably have the same kind of experiences that

the Senate has had?

Ms. COCHRAN. I would think so.

The CHAIRMAN. Mr. Dreier.

Mr. DREIER. I do not have any questions, but appreciate your

thoughts and input and, obviously, we will be considering this

shortly after your departure, I guess.

The CHAIRMAN. Mr. Moakley.

Mr. MOAKLEY. Ms. Cochran, you said that the rule inhibits your

profession in covering the hearing; and Mr. Dillon, you said that

the print media can stay in the room when your people have to go.

But you do not have to go. You can stay in the room and cover it.

You can take pictures of the witness coming into the room, you can

take pictures of the witness going out of the room, and you can

make the statement that he made while he was in the committee

room.

So, in fact, if I were the print media, I would say you have an

advantage over them because you have instant coverage and they

have to wait until the next day to get the picture and their stuff

in the paper. So it would never be equal, no matter what happens.

Ms. COCHRAN. First of all, it is only fair to tell you that the representatives of the print media also support this change in the rule.

The American Society of Newspaper Editors has joined in hoping

that the House would overturn Rule XI.

But secondly, to the question of how a story is told on television

or on radio, we think one of the reasons that it is such an appealing form of presenting the news to the public is because it captures

the essence of the moment. Rather than having the reporter’s account of what a witness said, you have the actual words of the witness. You have the demeanor of the witness.

We think that that can provide a more accurate record and a

more accurate way of telling the story, certainly a more vivid way

of telling the story, than to have a reporter talking himself and giving an account of what was said inside the committee room.

Mr. MOAKLEY. Now, you have talked about people who have

availed themselves of Rule XI, and I am sure you have done a lot

of research on people, and your industry has only come up with 11

cases. So, I mean, it is not used very often.

Ms. COCHRAN. That is correct. But when it is used, as in the

Samuel Pierce case, it is something that is often a very newsworthy

story, something that might be considered for live coverage, particularly by a station such as C-SPAN that specializes in that kind

of coverage. And so it has interfered with our ability to tell stories

on those occasions.
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Mr. MOAKLEY. Are you telling me that a committee hearing cannot be adequately covered by the print press media?

Ms. COCHRAN. Cannot be adequately covered by the print press?

Mr. MOAKLEY. Yes.

The CHAIRMAN. In today’s times, I would say so.

Ms. COCHRAN. Well, we like to feel that we are also offering the

same variety and menu of stories to our viewers and listeners that

are available through newspapers or periodicals, and so if we—particularly on—

Mr. MOAKLEY. Probably quicker.

Ms. COCHRAN. On a hot story we want to be able to be competitive. We want to offer our audiences as full and complete a report

as we possibly can.

Mr. MOAKLEY. You people didn’t say it but it is almost inferred

that when they say no more radio, no more TV, that your people

are ousted out of the room. You people are still staying there and

you can take your notes.

You can’t stay there?

Mr. DILLON. No. I have a camera. I don’t write.

Mr. MOAKLEY. I understand that, sir.

Mr. DILLON. My only job is to take pictures and I get thrown

out—I have no interest in interviewing the witness. It is not my

job.

Mr. MOAKLEY. But you don’t have to leave. You just don’t take

any pictures.

Mr. DILLON. Why would I stay?

Mr. MOAKLEY. Because you can write.

Mr. DILLON. I am not a writer. I am a photographer.

And the point you made, you were asking about the witness—

photographing the witness before.

Mr. MOAKLEY. And after, right.

Mr. DILLON. You can’t photograph the interaction between a witness and the committee. As Mr. Solomon pointed out, sometimes

Members beat up on the witness. There are two sides to this story,

and you can’t tell people with cameras they have to leave and rely

on somebody over in the corner with a pencil to describe what is

going on. It is much more accurately described in video and with

still pictures.

Mr. MOAKLEY. Don’t you think in fairness to a person who is

summoned before a committee against his will that he should have

some rights?

Mr. DILLON. I believe the committee has outlined the other provisions in the rule 11 that protect that.

Mr. MOAKLEY. But you have to take a vote of the committee to

ensure that he has got his rights. Do you think you should take

care of—take away a rule and leave it up to a committee? You have

seen the way some of these committees operate.

Mr. DILLON. I have been up here awhile, yes.

Mr. MOAKLEY. Yes, I know. That is why I said that.

The CHAIRMAN. Would the good gentleman yield?

Mr. DILLON. I would also be more intimidated by the committee,

not by the television camera. I mean, if you are up here minding

the business you are here for, that television camera is going to be

the last thing on your mind.
88

Mr. MOAKLEY. Oh, no, but if you are a person coming into probably a legislative body for the first time and looking at those cameras and looking at some of the mean faces that you have, like the

Chairman over here, the poor person would be scared to death. I

mean, if he has nothing to hide he would be afraid something

would go wrong.

Mr. DILLON. Congressman Moakley, the way technology is these

days, those cameras are so far back and the way the thing is lit,

I doubt the witnesses can even see the cameras.

Mr. MOAKLEY. But he knows that they are there because he is

told going in by his lawyer or whatever, watch those cameras.

Don’t shake your head when you shouldn’t. Smile. Look confident

and all of these things, and the fellow is trying to think of all of

that and still answer the questions the proper way.

Thank you.

The CHAIRMAN. Mr. Moakley, if you would yield, before I came

to this committee 10 years ago or more, I served on a number of

committees, but one of them was the Foreign Affairs Committee

and we had a particular subcommittee Chairman, who was very arrogant, very rude and belittled and heckled and harassed the witnesses, and I began to apologize to the witnesses for him, on television. And it didn’t take too long before this young fellow was

straightened out and now he is over in the Senate. He is a Senator

but he is not as rude as he used to be. He is almost a gentleman.

Mr. MOAKLEY. That is because he is with more unruly people.

The CHAIRMAN. That is why we should keep these cameras rolling.

Any questions of the witness?

Mr. MOAKLEY. Thank you, sir.

The CHAIRMAN. If not, we really appreciate your coming. Again,

we apologize for the lateness of the evening. Your testimony was

well taken, believe me.

Ms. COCHRAN. Thank you.

Mr. DILLON. Thank you for having us.

The CHAIRMAN. This concludes the hearing on the camera legislation.

This meeting stands adjourned.

[Whereupon, at 9:35 p.m., the committee was adjourned.]

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