Democracy's Privileged Few

Josh Chafetz is a student at the Yale Law School, a frequent figure in the legal blogosphere, and the author of a new book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions. Wow! Pretty heady stuff for a still-student, and due cause for congratulations. They must put something in the water over New Haven way. Josh is flogging the book at Balkinization; take a look.

One thing Josh's book reminds me of that's long been of interest to me is a seemingly anti-democratic norm built into the daily routine of Congress itself. Under congressional rules, as one report notes, "Observers in the galleries may not take notes; pencils and pens can be confiscated; photographs are forbidden." That citizens (and others) are forbidden from exercising what in most circumstances would be a fundamental right to gather information and record it, in the very place in which the spectacle of open government is enacted daily (when in session), is a curious phenomenon and well worth noting. One can trace this norm well back into Parliament itself, and it's worth observing that the Senate itself operated initially behind closed doors, and the publication of debates and votes from that body was highly limited at first. Of course, that norm has long since faded in favor of open deliberations in both bodies (although from time to time the Senate, at least, holds a rare closed session, famously so during the Clinton impeachment). And yet the prohibition on note-taking remains. Perhaps Josh can speak to this if he gets the chance, although it may be rather far afield from his concerns. Surely some citizen-journalist, or just plain citizen, out there must be interested in testing this rule, although I would not bet on his or her success.

Equally interesting, although still further afield from Josh's book, is the fact that the rule does not apply to credentialed journalists in the press galleries -- one more way in which, despite the commonly accepted notion that the First Amendment consists of a set of generally applicable rules, both constitutional and statutory regimes do, in fact, privilege various "First Amendment institutions," including but not limited to the press.

[Cross-posted at Prawfsblawg.]