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Senators have already introduced bills that would place cameras in federal courts. Does the legislation face a better chance this…

Senators have already introduced bills that would place cameras in federal courts. Does the legislation face a better chance this time around?

From the Winter 2007 issue of The News Media & The Law, page 10.

By Catherine Spratt

The change in congressional leadership raises questions about what will happen to legislation on electronic media coverage of proceedings in federal courts.

Cameras are not allowed in the U.S. Supreme Court or in U.S. District Courts. Each U.S. Court of Appeals may choose whether to permit television and other electronic media coverage of its proceedings, but only the Second and Ninth Circuit Courts of Appeals have chosen to do so.

In the 109th Congress, House and Senate members introduced a number of bills that would permit still and television photography in federal courts. Although the bills had bipartisan support, they never passed both houses of Congress.

Identical bills in the House and the Senate, H.R. 4380 and S. 1768, would have required the televising of all open sessions of the Supreme Court, unless the court decided by a majority vote of justices that such coverage in a particular case would violate the due process rights of one or more of the parties before the court.

The Senate Judiciary Committee passed its version of the bill in a bipartisan 12-6 vote in spring 2006. It was placed on the Senate legislative calendar but never came up for a vote by the full Senate. The House version of the bill never made it out of committee.

Three other bills introduced would have allowed presiding judges, at their discretion, to permit the televising and photographing of federal district and appellate court proceedings.

In the Senate last spring, the Judiciary Committee passed by a 10-6 vote a bill that would have authorized any presiding judge of any federal district or appellate court to permit photographing, televising and other electronic media coverage of court proceedings over which the judge presided.

The bill, S. 829, would have required judges to inform witnesses in district court proceedings that they had the right to request that their images and voices be obscured during testimony. The bill had a sunset provision that would have required Congress to reauthorize electronic media in lower federal courts after three years.

However, some Senate Republicans who opposed the bill prevented it from being put to a vote by the entire Senate.

A similar bill, H.R. 2422, was introduced in the House Judiciary Committee but never made it out of committee as a stand-alone bill. Republican Chairman F. James Sensenbrenner Jr. (R-Wis.) opposed the bill.

In November 2005, supporters took advantage of the fact that Sensenbrenner was out of town and slipped a similar provision into a larger House bill, H.R. 1751, the Secure Access to Justice and Court Protection Act of 2005. The bill passed overwhelmingly and was referred to the Senate, but never passed.

Bills similar to those that died in the last Congress have been reintroduced in the current one. In January, senators introduced S. 352, which addresses camera usage in district and appellate courts, and S. 344, which is identical to the bill in the 109th Congress regarding the televising of Supreme Court proceedings.

Judiciary Committee staffers predicted that they will be reintroduced in the House as well.

Whether the legislation has a stronger chance of becoming law with the Democrats in power is an open question.

Allowing cameras in the courts is, for the most part, a nonpartisan issue.

“It’s not really a liberal/conservative issue,” said Tony Mauro, a reporter for Legal Times. “The fact that we have an ascendancy of Democrats doesn’t mean it will fare better.”

As a general rule, Democrats are more likely than Republicans to support legislation that leads to greater openness and transparency in government, including electronic coverage of courts.

Under the Democrats, Sen. Patrick Leahy (D-Vt.) and Rep. John Conyers (D-Mich.), will be the new chairmen of the Judiciary Committees. In the past, both have supported permitting cameras in the courts.

But members on both sides of the aisle supported and opposed the bills.

For example, while Sensenbrenner opposed the legislation, his counterpart in the Senate, Sen. Arlen Specter (R-Pa.), supported it.

And in the 110th Congress, both Republican and Democratic senators are co-sponsoring the cameras in courts legislation.

Some assert that it is inappropriate for Congress to be legislating in this area, arguing that the legislative branch should defer to the judiciary on this issue.

The legislation regarding the lower courts was less controversial in this regard, since it merely permitted, rather than required, judges to allow cameras.

But the legislation regarding the Supreme Court required the justices to permit cameras except when a majority of the justices agreed that it would violate the due process rights of one or more of the parties before the court.

In the spring of 2006, Supreme Court Justice Anthony Kennedy spoke out against legislation requiring the Supreme Court to televise its proceedings.

“Mandating direct televised proceedings would be inconsistent with the deference and etiquette that should apply between the branches,” Kennedy said at the court’s annual congressional budget hearing. “We feel very strongly that this matter should be left to the courts.”

In a later hearing, Specter countered those arguments, saying: “The Congress makes the determination as to how many justices there are on the court. The Congress makes a determination of what is a quorum for the court. The Congress makes the determination for when the court will begin its session on the first Monday in October. The Congress has imposed time limits for the Supreme Court. And by analogy to those lines, I think it is fair for the Congress to legislate in this field.”

Specter added: “Obviously, if the Supreme Court decides as a matter of separation of powers that it is not a congressional prerogative, we will not petition for a rehearing. That would be the judicial decision, which we respect since Marbury v. Madison.”

Specter was referring to the landmark 1803 case in which the Supreme Court found that the court has the power to invalidate any law that, in the court’s opinion, violates the Constitution.

In the last Congress, Mauro said it seemed like there “was a good window of opportunity that the legislation would pass, but that window may have closed.”

The momentum to pass the bills, which may have been bolstered by the Supreme Court confirmation hearings, seems to have evaporated, Mauro said.

Whether the momentum will rebuild has yet to be seen, experts say. Legislation regarding cameras in the courts is unlikely to be a high priority in this Congress. The Judiciary Committees will most likely focus on more hot-button issues, such as the treatment of suspected terrorists who are being detained.