Around the country, credentialing organizations struggle every year to make decisions as journalists and news outlets apply for law-enforcement passes to cross police lines, day passes to attend a specific event, and hard passes to access a government agency on a regular basis. The groups issuing these credentials debate whether bloggers are journalists and wonder how to maintain the press pass’s integrity at a time when news production is widely dispersed.

It’s a difficult business, and now the organizations doing it are indebted to the US Senate Daily Press Gallery—which has made a major contribution to the body of knowledge on how not to make credentialing decisions.

On April 7, the gallery’s Standing Committee of Correspondents decided to reject the application for a press credential for Amy Howe, editor of the website SCOTUSblog, which over the last few years has emerged as an essential news source about the Supreme Court. At the same time, the committee decided not to renew the credential previously granted to SCOTUSblog reporter Lyle Denniston when it expires in May. The site plans to appeal and ask the gallery to reconsider those decisions at its May meeting, publisher Tom Goldstein told CJR. If that effort fails, he said, he plans to appeal to the Senate Rules Committee and possibly to initiate litigation.

“Our appeal focuses on the decision not to renew Lyle’s credential, because it brings home our values,” Goldstein said. “The Gallery will have to tell Lyle Denniston he’s not a journalist for a legitimate news organization.”

While I believe the committee’s decision was incorrect, the merits of SCOTUSblog’s application are complicated. On the one hand, the site has been widely recognized for its coverage of the Supreme Court: It has received, among other citations, the 2012 Peabody Award for excellence in electronic media and the 2012 Sigma Delta Chi Deadline Reporting Award for online coverage of the Affordable Care Act decision. Linda Greenhouse, who covered the Supreme Court for 30 years for the New York Times, told me, “SCOTUSblog is essential reading for anyone serious about the Court.” Her successor at the TimesAdam Liptak, called the site “an invaluable resource and an important competitor.” Pete Williams, who covers the Court for NBC News, said, “The blog’s coverage is widely respected by other journalists, academics, and people in the legal profession.” Tony Mauro, who covers the Court for the National Law Journal, said, “SCOTUSblog’s work is remarkable and extensive, and there’s basically nothing I could fault.” Nina Totenberg, who covers the Court for NPR and years ago employed Goldstein as her intern, told me, “It’s a high-quality news organization.”

On the other hand, SCOTUSblog is a puzzle. Goldstein practices before the Supreme Court, and as recently as three years ago he funded the site out of pocket: $250,000 per year from the proceeds of his law practice. Which is sort of ironic, because he started the site as a marketing ploy to generate business for his practice. Goldstein’s firm, during his time at Akin Gump, from 2006-2011, was engaged in lobbying the Senate, too, and he has said he is not a journalist and that he has an “ethical obligation as an officer of the court that supersedes any other ethical obligation.”

However, in recent years, Goldstein developed editorial firewalls to separate the site from his law practice and to address other actual or apparent conflicts. One rule, for example, forbids contributors from reporting on cases in which they or their firms are involved. Meanwhile, the site’s lead reporter, Denniston, who has covered the Court for 55 years and joined SCOTUSblog in 2004, is free to report on what he wants, except cases in which Goldstein’s firm is involved—all to ensure editorial independence. Also, since 2011, the site has been financially independent from Goldstein’s law practice. SCOTUSblog does not pay any employee of Goldstein’s firm, and the site’s exclusive sponsorship agreement with Bloomberg Law covers the site’s salaries and expenses, currently $500,000 per year.

All of which is to say: Whether the site qualifies for a Senate press credential is not self-evident. Based on what I know about SCOTUSblog, how it’s structured and operates today, I do believe it should be credentialed. To use the language of the gallery rules—which we’ll examine more closely below—Denniston and Howe have established that they’re “full-time, paid correspondent[s]” “employed by a news organization” “whose principal business is the daily dissemination of original news and opinion of interest to a broad segment of the public.” SCOTUSblog’s work “requires on-site access” to Congress, it is “editorially independent” of entities lobbying the federal government, and Denniston and Howe don’t lobby or advocate for any entity or prosecute claims before federal agencies.

The gallery’s Standing Committee disagrees. But—and this is the biggest problem here—it’s impossible to say how my analysis differs from that of the gallery, because the gallery has refused to explain publicly the basis of its decision. Gallery director Laura Lytle has been largely unable or unwilling to answer even general questions about the credentialing process and rules. The same goes for Siobhan Hughes, chairwoman of the Standing Committee, a group of journalists that makes the credentialing decisions. Of the committee’s other four members, one declined to talk with me and three did not respond to my queries. Goldstein himself, in an effort to understand the reasons for the denial and prepare an appeal, has fared only slightly better. Lytle’s unhelpfulness was frustrating to me, to be sure, but the committee’s opacity truly surprised me, because the members are journalists—part of a trade whose institutional ethics favor openness in service of accountability. In this case, they’ve been as open as Chick-fil-A on Sunday.

We’ll take a closer look at the gallery’s correspondence with SCOTUSblogincluding an email exchange that, to the best of my knowledge, has not previously been reportedand unpack what we know about the credentialing rules below. First, it’s useful to review the Congressional and Supreme Court credentialing systems.

The Supremes vis-à-vis the Senate

You might be wondering: Why did SCOTUSblog, which principally covers the Supreme Court, apply for a Senate credential? Two reasons. First, the Public Information Office at the Court gives hard passes only to journalists and news organizations that already have credentials from the Senate or White House—and the White House, in turn, makes Senate credentials a prerequisite. (Disclosure: I interned at the PIO in 2006.) Only 28 journalists have a hard pass from the Court that permits them each day to use the pressroom and attend oral arguments without getting a new pass. Others get a temporary day pass that doesn’t guarantee access to work space in the pressroom or an unobstructed view of the bench from the press seating area in the courtroom. And even the day passes require some kind of credential or other proof of a press affiliation.

Goldstein told me he approached the Senate Daily Press Gallery around the time he hired Denniston, in 2004, to discuss whether the site could be credentialed. He said the gallery told him then and for the next eight years it would not be worthwhile to apply, for one reason or the other—including SCOTUSblog’s lack of advertising and its ties to Goldstein’s law practice. Eventually, after the site secured the Bloomberg sponsorship and editorial firewalls were developed to separate the site and firm, the gallery credentialed Denniston as a reporter for SCOTUSblog, in 2013. Goldstein later wrote that he “presented that credential to the Supreme Court, thinking that the issue was resolved. But the court declined to recognize the credential, explaining that it would instead review its credentialing policy.” It’s not clear when the review will conclude, and Kathy Arberg, the Court’s spokeswoman, did not respond to a request for comment.

So SCOTUSblog is not credentialed by the Court, and it never has been. Denniston himself, however, has a hard pass from the Court—through WBUR in Boston, for which he also files stories. He uses that pass to report for SCOTUSblog. Which means if Denniston were unavailable to cover the Court, SCOTUSblog would lose its guaranteed access to the pressroom and preferred seating at oral arguments. As a practical matter, the site likely would not be left in the cold, because in many ways the Court has tried, Goldstein said, to accommodate the site (e.g., the Court has granted the site’s requests for public seats in the courtroom for the cases Howe is covering). But the risk is there.

The second reason SCOTUSblog applied for a Senate credential, Goldstein told me, is the relevance of Senate activities to Supreme Court coverage. And he’s right. The connection might seem attenuated, but regular access to Congressional proceedings—confirmationsappropriationslegislative efforts to alter the impact of Supreme Court decisionshearings on cameras in the Court—is part of the beat. Plus, a large portion of the Court’s workload involves interpreting or testing Congressional enactments. The two are entwined in the fabric of governing.

“Any thought that [Denniston] does not report on Congress is ill-considered,” said Carl Stern, who covered the Court for 26 years for NBC News. “In fact, some of my best stories came from the Hill.”

That’s why SCOTUSblog is dealing with the Senate Press Gallery. But what is—or who is—the gallery, and how does it work?

There are actually four Senate press galleries—one for dailies, to which SCOTUSblog applied, plus one for periodicals, one for radio and TV, and one for photographers. These galleries are each supervised by a different committee—basically, a group of journalists elected by the gallery membership. The daily gallery’s Standing Committee consists of Hughes, of The Wall Street Journal, who serves as chair; Peter Urban, of Stephens Media, which owns the Las Vegas Review-Journal and other regional papers; Colby Itkowitz, of The Washington PostKate Hunter, of Bloomberg; and Emily Ethridge, of CQ/Roll Call. A nonpartisan staff of six, led by Lytle, assists the committee and gallery members by tracking floor action, tallying votes, and coordinating coverage of Senate news conferences and hearings.

The Standing Committee’s main job is to handle applications for credentials—a role that’s designed to maintain the gallery’s integrity by allocating workspace only to bona fide journalists, and to preserve press freedom by relieving the government of the task of deciding who gets press access. It’s a mostly unenviable task, made trickier by the upheaval in the media industry, which has blurred boundaries between formats and complicated efforts to define a journalist. But as a practical matter, restructuring the gallery model to reflect the contemporary media landscape would be difficult. For example, adding a gallery would require physical space that doesn’t exist, and consolidating the galleries could threaten the status of organizations with secure committee positions under the multiple-gallery system. It may be headed toward obsolescence, but it’s the system we have for now.

The Secret Society of the Senate Daily Press Gallery

Even if the process is less than perfect for the circumstances, at least it can be transparent. This one hasn’t been, by any means.

Despite considerable public interest in the case, the committee has not commented publicly or offered an official explanation of its decision. On April 17, Hughes tweeted that “[t]he Standing Committee looks forward to commenting after Scotusblog makes its appeal. Until then, we want to be respectful of the process.” When I pointed out to Lytle and Hughes by email that many decision-making bodies do publicly explain their decisions without prejudicing the appeal, and asked why the committee’s position was unique, I got no direct reply.

When I asked Hughes to talk with me about the decision, she referred me to Lytle, who referred me back to Hughes. In the few comments Lytle did make on the record April 18, she was basically a broken record of “I don’t know.” She didn’t know whether the committee had put its decision in writing … whether it was common for the committee to do so … the timeline for Goldstein’s appeal … what standard of review the committee would use. When I asked, a few days later by email, for clarification of a gallery rule referencing US Postal Service mailing privileges, she told me I should “seek a source outside of [Lytle] or [Hughes] for any clarification of what that rule is referencing.” (In fairness, Lytle was on vacation and away from the office when we talked, she’s relatively new to the director’s position, and she’s not on the committee that made the credentialing decision.)

More troubling is the difficulty Goldstein has had in obtaining specific grounds for the denial so he can prepare a responsive appeal. Throughout the application process, Lytle and Goldstein spoke informally about SCOTUSblog’s chances of getting a second credential and getting Denniston’s renewed. Both told me Goldstein understood that the chances were less than great. Lytle informed Goldstein by email April 11 of the gallery’s decision, but that email did not include any explanation for the denial. Lytle thought Goldstein understood the reasoning based on their earlier conversations. Whether or not he did, Goldstein asked Lytle to email a written explanation of the decision. He told me at the time, “Since we have the right to appeal, the gallery has an obligation to explain why it did what it did—and I hope and think we’ll soon get a document telling us that.”

Goldstein’s hope was misplaced. On April 24, he received the following email from Lytle saying simply that SCOTUSblog had failed to meet the gallery’s credentialing rules, citing the relevant rule as a whole and offering no factual findings or reasoning: 

SCOTUSblog was rejected by the Standing Committee of Correspondents at the April 7th, 2014 meeting, for failure to provide sufficient evidence that they met the requirements of Rule 4 of the Congressional Rules governing the Gallery.  

If you could, please let me know:

1. If you intend to appeal

2. If the Friday, May 16th meeting date works for you. We are currently planning on meeting at 10:30 a.m.

3. Who will be attending the meeting and in what capacity

If May 16th doesn’t work for you, I am happy to try to arrange for another time.  

I am sure you have a copy of the rules, but just in case, here is the text of Rule 4:

An applicant for press credentials through the Daily Press Galleries must establish to the satisfaction of the Standing Committee of Correspondents that he or she is a full-time, paid correspondent who requires on-site access to congressional members and staff. Correspondents must be employed by a news organization:

(a) with General Publication periodicals mailing privileges under U.S. Postal Service rules, and which publishes daily; or

(b) whose principal business is the daily dissemination of original news and opinion of interest to a broad segment of the public, and which has published continuously for 18 months.

The applicant must reside in the Washington, D.C. area, and must not be engaged in any lobbying or paid advocacy, advertising, publicity or promotion work for any individual, political party, corporation, organization, or agency of the U.S. government, or in prosecuting any claim before Congress or any federal government department, and will not do so while a member of the Daily Press Galleries.

Applicants’ publications must be editorially independent of any institution, foundation or interest group that lobbies the federal government, or that is not principally a general news organization.

Failure to provide information to the Standing Committee for this determination, or misrepresenting information, can result in the denial or revocation of credentials. 

My day job as a lawyer would be much easier, too, if I could accuse someone of violating a law or rule and then create a scavenger hunt out of finding the specific violation. At any rate, Goldstein replied later that day:

Laura, 

Thanks very much. We do intend to appeal. Are there limits on when the appeal must be pursued?

Regarding the invocation of Rule 4, I hope you’ll understand that this doesn’t really help us. It’s effectively saying that we didn’t qualify under the qualifications. But it doesn’t explain in any way what the problem is. The Rule has lots of unrelated provisions. 

The reason we need this information is so that we can actually address the Standing Committee’s concerns. Your invocation of Rule 4 doesn’t help us do that. It could well be that we lack U.S. Postal Service mailing privileges.

I’m not familiar with any context in which someone denies someone a privilege, and says that it is invoking a Rule with varied provisions, but declines to explain why it believes that the Rule isn’t satisfied. And in our previous email exchange you indicated that you thought I already understood the reasons for the denial (though a lot of our discussions involved whether we received advertising, which this Rule doesn’t cover), so the Committee must actually have had something specific in mind.

In this Rule, the only requirement that it seems like we conceivably might not satisfy is the statement that the publication must be editorially independent from an institution that is not principally a general news organization. But again, I don’t yet have any way of knowing.

So I’m formally repeating my request for an explanation for why the Standing Committee turned us down.

Thanks,

Tom

Goldstein told me he talked with Lytle by phone after exchanging those emails, and did get a little more clarity: She told him, he said, that in his appeal he should consider whether SCOTUSblog “needs direct access to the Senate and the issue of editorial independence.” She also told Goldstein, he said, to consider “how the site’s Bloomberg sponsorship works.”

Goldstein can make a case about editorial independence and the need for access, as discussed above. But it wasn’t clear why the mechanics of sponsorship are relevant, so he asked why it mattered, and Lytle told him, for the first time, about a set of guidelines that implement Rule 4. I learned of them the same day, independently, from Jim Drinkard, an AP editor who chaired the Standing Committee in 2003-2004, when the guidelines were developed. They don’t appear on the gallery’s website, so I asked Lytle and Hughes how I could access them. Neither responded, but here are the guidelines (a few typos have been corrected):

GUIDELINES for Application of Rules

 Adopted January 14, 2005 and expanded on October 17, 2011

This revision of the credentialing rules for reporters in the Daily Press Galleries is a response to the changing nature of the news business. Our goal is to maintain long-established standards for professionalism while allowing for the inclusion of non-traditional media.

The committee has established the following guidelines for applying and interpreting this rule.

a)    Nothing in the new rule is intended to call into question the credentialing of current gallery members in good standing.

b)    The committee may grant temporary credentials to applicants who do not yet meet the rule’s requirement for continuous publication. The temporary credentials shall be reevaluated periodically.

c)     The committee may issue special credentials to foreign correspondents employed by state-run or state-owned publications, and may request evidence to establish that the application is a fulltime journalist.

d)    The lobbying prohibition in the rule is not intended to preclude routine representations to Congress by news media companies in the normal course of their business, or to preclude press efforts to defend First Amendment rights, protect freedom of information or to weigh in on other matters related to reporters’ ability to cover the news.

e)     Factors to be considered in determining the eligibility of a news organization for credentialing may include whether its principal revenue comes from readership support through subscriptions or advertising.

f)      Reporters credentialed through the Daily Press Galleries have an obligation to avoid conduct that could jeopardize essential access privileges for all journalists on Capitol Hill.

g)    News services applying for credentials must be in the principal business of providing news content to daily news publication.

h)    Independent news publications that are funded by foundations may be accredited if they fall within gallery rules. These publications must establish to the committee’s satisfaction that they are editorially independent from the foundation. Publications operated by foundations that engage in lobby or issue advocacy do not qualify. Factors that may be taken into account include whether the publication’s stories are regularly published in daily news outlets that qualify for gallery membership.

Finally, we might be getting somewhere. Provision (e) of the guidelines—about whether “principal revenue comes from readership support through subscriptions or advertising”—could make the Bloomberg sponsorship relevant. Drinkard, the AP editor who helped develop the guidelines, told me, “When we talked about news media and how to identify what we wanted, we were looking at traditional newspapering, supported by subscriptions and advertising. We wanted a readership that cares enough about the product to pay for it directly or indirectly.” In that sense, advertising is supposed to be a proxy for quality and credibility. And—maybe?—a “sponsorship” is distinct from “advertising.”

But if that’s the distinction, it seems awfully tenuous. Increasingly, hybrids of editorial and promotional content (e.g., native advertising) are taking hold, and aside from a few regulatory definitions, there’s no widely understood taxonomy of what makes something an “advertisement,” a “sponsorship,” and so on. The Standing Committee’s job is hard enough defining journalists; it shouldn’t also take up the job of defining “advertisements” and “sponsorships.”

Which brings us back to the business of defining journalists and deciding whether SCOTUSblog deserves credentials. If you had asked me 10 years ago whether the site qualified, I would have said no. It was too closely associated, financially and otherwise, with Goldstein’s law practice; it focused to a great extent on the firm’s own work; and it lacked firewalls to preserve editorial independence. But that is not the SCOTUSblog that exists today—and last year the Standing Committee apparently agreed, because it credentialed Denniston as a reporter for the site. It’s not clear what has changed since then, other than Howe joining SCOTUSblog full-time and Goldstein developing even more firewalls. Perhaps the problem is actually that the Bloomberg sponsorship ends this year, but Goldstein told me that to preserve the site’s financial independence he plans to re-up with Bloomberg or secure a new sponsor.

Or, perhaps, the problem is something else. Suffice it to say, the committee has some splainin’ to do.

This story has been clarified to note the name of Tom Goldstein’s firm from 2006-2011.

If you'd like to get email from CJR writers and editors, add your email address to our newsletter roll and we'll be in touch.

Jonathan Peters is CJR's press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written on legal issues for Esquire, The Atlantic, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.