of congressional power to interpret the 14th amendment. With reference
to future racial civil rights legislation, congressional power under the 13th
and 15th amendments will obviate any necessity for reliance on section 5
of the 14th amendment. Beyond racial discrimination, alternative sources
of congressional power â€” such as the commerce clause â€” will almost surely
be invoked. If there is a new round of debate in the Court concerning the
limit of congressional power under section 5 of the 14th amendment, it is
most likely to arise in the context of a congressional attempt to clip the
wings of an unpopular due process or equal protection decision of the Court.
It is here that the unsatisfying arguments on all sides of the debate are a
matter of continuing concern.
It is not difi&cult to find scholarly opinion that Oregon v. Mitchell was
wrongly decided, given its conflicting holdings. It is the thesis of this Essay
that the holding was wrong insofar as it denied Congress the power to
lower the voting age in state elections. Theories defining Congress' en-
forcement power under section 5 of the 14th amendment as limited to the
creation of "remedies" rather than "interpretation," or theories that would
limit the function of congressional "interpretation" to marginal cases, are
not viable. The only viable judicially-enforceable limit on congressional
power is to be found, not in the loth amendment, but in the more specific
restrictions on federal power in the Constitution, including the Bill of
Rights. Recognizing the functional distinction between judgments draw-
ing lines as to the allocation of power within the federal system and those
establishing the minimum content of constitutionally protected liberty
leaves no room for congressional dilution of the Bill of Rights.
Senator Bayh. Our next witnesses this morning have had mortj
than a theoretical experience with tliis problem. We have Mr. Richard
Cady of the Indianapolis Star, who is an investigative reporter. We
also have Mr. Edward Delaney, attorney for the Investigative Re-
porters and Editors.
Gentlemen, we appreciate your taking the time to be with us. We
look forward to hearing the practical experience with regard to the
burdens that must be faced by an investigative reporter. We appre-
ciate your presence.
TESTIMONY OF RICHARD CADY, INVESTIGATIVE REPORTER, INDI-
ANAPOLIS STAR, AND MEMBER OF THE PULITZER PRIZE-WIN-
NING TEAM FOR INVESTIGATION OF POLICE CORRUPTION,
Mr. Cady. I made the comment to a colleague recently that inviting
me here to talk about the Stanford decision is like calling a sergeant
out of the trenches to report on the progress of the battle. It is, in
many ways, a battle.
The capacity to gather information, to deal with sources, to find
the people who will blow the proverbial whistle, to convince some-
one to point you in the right direction at their own peril, to peel
back the self-protective facades which so often mask the truth, is my
bread and butter. It is also, of course, the lifeblood of reporters in
general and investigative reporters in particular, many of whom I
have beâ‚¬n privileged to meet, work with, and share ideas and concerns
through a national professional organization. Investigative Reporters
and Editors, Inc.
Skeptical by nature and suspicious by trade, they have had their
ears to the ground and do not like what they hear. To the tremors
of gag orders, closed courtrooms, attacks on confidentiality, the com-
plexities of libel, various kinds of prior restraint and the usual prac-
tice of impaling the messenger who bears the bad news, add the
eruption of the Stanford Daily case.
From a reporter's point of view, what is its potential impact?
Some 5 years ago, our investigative team did extensive work on the
question of police corruption in Indianapolis. It was a long and con-
troversial matter, marked, among other things, by having undercover
police assigned to follow us to learn our sources, by sending spies to
plant bad information, by having some of our conversations secretly
recorded, by trying to divert attention with counterattacks aimed at
our own credibility. What success this investigation ultimately en-
joyed, and it was a mixed bag, was due primarily to our ability to
convince a large number of police officers to cooperate, to show the
way to the hidden reality, to break the unwritten code of silence which
governs so much of the secret conduct of police affairs.
To induce some of these people to help, we had to give assurances of
confidentiality. It was not a simple matter of some policemen settling
old scores bv hiding behind a reporter, or of others afraid they'd be
given a punishment detail in retaliation, or the grinding of political
axes. Indeed, many officers went to the FBI with their stories, though
by and large this proved futile. But what was at stake in some cases
was personal safety, the very practical question of ultimate retaliation.
I recall clearly the example of what happened earlier to a young
policeman who refused to play the game: His superior officers tried,
unsuccessfully, to trap him by sending to him a young woman with
a peculiar fixation for policemen. They even equipped her with a hidden
Another young patrolman found the air hose to his brakes had been
cut. Others were told that if they found themselves in a dangerous
situation, they might look behind and find their supporting brother
officers had disappeared.
The point cannot be stressed too much â€” sources are sometimes peo-
ple who can be killed if they are identified. This was the case in the
police investigation ; it has been the case in other matters dealing with
organized crime and labor unions.
Afterward some of the cooperating policemen were in fact identified
through various means, and most of them have suffered yarious kinds
of harassment, both obvious and subtle, since then. Some have left
the police department.
It is abundantly clear now that very few of these men and women
would have said anything at all had there been the obvious danger
that the entrenched powers could have had instant access to our office,
our papers, our notes. Yes, they recognized that we faced subpenas
and the like, but at least this gave us the time and the legal tools
to adjudicate the question of how much we had to cooperate with the
Shortly after this, our team became embroiled in an animated dis-
pute with the local prosecutor, with whom many of the policemen
would not cooperate because they saw him as one of the roots of the
problern. As this reached the boiling point, we found that a 7-month-
old incident with a police informant was resurrected, a "crime" was
created, and another reporter and myself were indicted.
The prosecutor had one problem : The so-called evidence was a scram-
ble of confusion, and so our photographer was hauled into court and
threatened with jail if he did not testify against us. It didn't work,
and the entire matter eventually landed in the ash can it deserved,
but one remembers how easy it would have been for the prosecutor's
troops to execute a convenient search warrant with a friendly judge,
raid our offices, and not only confiscate our notes but learn the identity
of all of our sources.
Some time after this, we received leads on what turned out to be a
series of dirty-tricks episodes entailing breakins in the office of Sena-
tor Hartke and others, electronic bugging, phone taps, pranks, and
acts of political espionage, including an incipient plan to compromise
a certain Congressman.
Law enforcement agencies had the same leads we had, but nothing
happened at the time.
in any case, certain information led us to two men who both had
been participants in various things. We were able, over a period of
some time, to induce both of them to provide us with first-hand, inside
information, even though both were acutely aware of their own com-
plicity. The consequence was that we got the stories, and they, among
others, through their attorneys received immunity.
What I remember distinctly was the profound tension of the time
jhhI t heir fear of being identified before thoy could seek some sanctuary
in the coming investigative storm. They knew we were somewhat able
to protect sources through a kind of constitutional shield, but at the
same time they never would have opened up if it were possible friendly
and maybe unfriendly police agencies would have instant access to
their tales of misdeeds through a simple search warrant procedure.
In the 1976-77 IRE Arizona project, an examination of corrup-
tion, organized crime, and land fraud in Arizona as tribute to a
murdered investigative reporter, Don Bolles, I recall vividly the stacks
of files and file cards which represented information from a wide
variety of sources concerned about problems in their State. Even
more vivid are the memories of the palpable tension in the wake of
the Bolles assassination and other murders, and the taut circumstances
under which some people came forward.
How many, I wonder now, would have backed off in realization that
some of the very people they were complaining about had the capacity
to march in with a magistrate's warrant and read, even confiscate, the
It is true, of course, that these sources largely were identified in our
files by a number system, but the sources didn't always know that.
And I might add that even today our dailv memoranda now identi-
fies sources by number â€” not name â€” while documents have to be se-
creted in special places. This is an immediate legacy.
Then there is what is sort of a bottom-line situation for an investi-
gative reporter, namely, collecting inside information about Federal
agencies, in particular the FBI. The FBI may be on the whole a fine
organization, but it is not without its problems, and it is an institution
which historically has sophisticated systems for protecting and per-
petuating its image. "Don't embarrass the Bureau" is not some slogan ;
it is holy writ.
If an agent is not a team player, so to speak, he will not have much
of a future, and if a situation develops that should not develop, and
nothing can be done about it internally, team silence is the rule. You
do not blow the whistle.
We know, of course, that from time to time someone within the FBI
does blow the whistle, and if it is to a reporter, interesting situations
develop. The FBI has sufficient rules so that any one of them can be
invoked with ease to hold an agent in line, and the stigma of the agent
who "talks" is something so deep and pervasive that only an agent
can really appreciate and fear its reality.
Let me give you a hypothetical example Avhere an agent knows
something is gravely wrong within, but he can get nothing done
"through channels." If it is difficult enough to screw up the nerve
to go to "outsiders," how much more reluctant will such a person be
in the acute realization that this act could be exposed easily under
the expedient guise of a swiftly procured search warrant issued under
col or of some phantom investigation ?
Such contention is no pipedream. I nm specifically aAvare of an FBI
investigation of a public official in Indianapolis which was based solely
on an anonymous, and not very specific, letter. Dnrinqr the investiga-
tion one of the agents kept the public official's chief detractor posted
of developments on a daily basis.
Senator Bath. That actually happened 'i
Mr. Cadt. Yes, recently
I mention the FBI example because in our own city, as you know,
such situations have developed in the past months because they are
unresolved and because to our team the implications of the Stanford
decision raise daily the question of, if newspapers represent a sort of
court of last resort, no matter how unsatisfactorily, how effective will
they be if our doors can be opened by the stroke of a pen.
In all of these examples I have tried to underscore what we perceive
of as not how the Stanford decision can be used, but how it can be mis-
used. I realize that the keyhole view of events which some reporters
live with sometimes tends to paint our perceptions darkly, but I also
believe they give us an unusually valid view of things in what is a very
necessary chore in our system of government, our way of life, carrying
a kind of glaring stage light which is not always easy to focus and
which many resent, but which in the ultimate sheds light where it
needs to be shed.
In criminal cases lawyers tell the jury, "If I said something you
didn't like, please don't hold it against my client." Thus, I do not mean
to imply that reporters do not make mistakes, are always unflaggingly
better than the people they write about, or that our houses are always
In the main, however, I think we are prepared to accept the con-
sequences of our reporting, face the risks, and do our jobs. Prizes and
minor celebrity, as a matter of fact, are far overshadowed in the nor-
mal course of events in which a reporter can face lawsuits, grand juries,
dispositions, hostile attorneys, threats, even jail, and his mistakes have
a way of crowding the limelight.
This is to say that when you deal with a source or claim an "investi-
gation," like it or not, you have the processes of law, subpena, and
testimony, the rules of tne game. The Stanford decision, as we see it,
twists those rules.
I recall an episode earlier this year at a certain midwestem airport
where the wife of an FBI agent discussed her husband's frustrations
at certain things, apathy and complacency, and how it had dhanged
him. But she added, "it's nice to know someone cares." I believe she
would be glad to have you hear those words.
I have talked largely about problems rather than solutions, so I now
turn to Mr. Ed Delaney.
Senator Bayh. Before we get to Mr. Delaney, let me comment for a
Is it fair to assume that the problem of public corruption and the
problems requiring the white heat of publicity that comes from a good
investigative reporter, whether he is a Pulitizer Prize one or not, are
no greater and no less in Indianapolis than in most other cities ?
Mr. Cadt. I don't think so, no.
Senator Bayh. I don't, either. Perhaps neither one of us can be
totally objective. Here you are x)erforminQ: your duty and your re-
sponsibility. You are participating in your profession in a very profes-
sional manner, and doing it well enonsrh to earn you a Pulitizer Prize.
Yet I think it is fair to assume that if corruption exists in Indianapo-
lis, then it probably exists in almost every other community in America.
Mr. Cadt. I do not think there is any question aJbout that.
Senator Bayh. As I recall your statement, Mr. Cady, you empha-
sized the fact that because of the Stanford Daily decision, you are now
ooing to some trouble to code your notes and how they are filed. So the
decision really has had an "impact on tlie way you conduct your
Mr. Cady. Absolutely. Ironically, we are usino- the old FBI system.
Instead of listing someone by name in the case of a source, we list them
^ Senator Bayii. So in your experience the decision has put a burden
on the way you exercise your first amendment rights.
Mr. Cady. I think it has an implied burden. I do not mean to suggest
that by giving someone a number, rather than using a name, that it is
a burden. It is for our own purposes actually, but it is thei-e in case.
Senator Bayii. I understand. I believe you sjieeifically stated that
people whom you relied upon to provide this information of official
corruption would have found it very difficult to come forward, indeed
if not refused to come forward totally, if they had felt that this infor-
mation was going to be made available to the very people they were
disclosing information about.
Mr. Cady. That is right. It should be added that most times the kind
of people that an investigative reporter deals with are people who are
aware of what the law is in some way or another. They are aware of
what can be done to expose them. They read the paper. They are pretty
knowledgeable. They are aware of these sorts of things.
I think it is going to have a tangible, long-range impact; yes.
Senator Bayii. Is it not fair to say that one of the most effective, if
not one of the few available, methods of exposing and thus cleaning
up public corruption is to give to the reporter the tools necessary to
get that information made public ? Indeed, if those ]5eople about whom
the information is to be disclosed have access to it. then the very infor-
mation that is necessary to let the public know about corruption and
thus demand a remedy is going to be taken from the public.
Mr. Cady. There is no question about it. Senator.
Senator Bayii. I think this is the nub of the danger of this decision.
If we make it less likely people will come forward with information,
then we are making it almost impossible to disclose the type of corrupt
Mr. Cady. I concur wholeheartedly because I believe very much in
which I have been talking about and about the necessity of having
newspapers, the media, television, and radio doing certain exposures.
I have seen case after case not only in Indianapolis but around the
country, from reporters to whom I have talked, where things would
have been absolutely buried if the media had not brought them out.
I have had personal experiences with the kinds of people who are
not going to use that decision but they are going to abuse it. That is
exactly what I am talking about.
Senator Bayh. Thank you very much.
TESTIMONY OF EDWARD DELANEY, ATTORNEY FOR INVESTIGA-
TIVE REPORTERS AND EDITORS, INC., INDIANAPOLIS, IND.
Mr. Delaxey. I am here in behalf of Investigative Reporters and
Editors, Inr., which is an educational organization of investigative
I think what 3'ou are doing today, Senator, is going to contribute
42-i9(>â€” 79 27
greatly to educating the public to the importance of this Avork.
I would like to start by addressing mainly what was said by Mr.
Heymann briefly. First, I think that to discuss the Zurcher case in
the context of whetlier it changes the law or does not change the law
is to miss the point. The important thing is what Mr. Cady just
referred to, which is that the public's perception of the threat of
warrants is greater than it was before the Zurcher decision.
The police have learned a lesson as to how they may be able to use
or "abuse" their warrants. The targets of investigations are probably
now more fully aware that if they have a friendly police authoritj^ and
a friendly magistrate, then they may be able to undercut an investiga-
Whether or not they theoretically could have done this before the
Zurcher decision is really irrelevant. The point is that they now feel
they can do it.
It is clear from a reading of the Court's decision â€” and there has
been little direct reference to thatâ€” that the court is more concerned
about preserving evidence than protecting confidential sources. The
decision specifically said that if there was any limitation on the
availability of confidential sources because of their decision, "this does
not make a constitutional difference in our judgment." They spe-
cifically addressed that. They felt the difference was not constitu-
Similarly, the court said that in the context of search warrants
State shield laws and the objections based thereon are "largely ir-
relevant for determining the legality of the search." The reporters are
not in a position to agree vrith that and are forced to come here before
I would say that one thing that ought to be clear from the point
of view of the leadership in IRE is that the press should be given no
special status and the notion of liaving a "press only'' bill is probably
basically an offensive one in the eyes of many members of the public.
The problem caused by the Stanford case and the Hapden case is
not restricted to the press or what you might call communicators. The
Government's proposal is to protect all communicators whether they
ai e formal press people or not.
I would remind the Congress that in 1968 in Public Law 93-51,
which is the law of the land today, the Congress decided to extend the
power of search warrants to include mere evidence. That was a statute
passed by the Congress after the Supreme Court decided the Hayden
case. I think this committee ought to take a careful look at whether
that was a prudent move and wliether it ou!2:ht to be reconsidered.
IRE is afraid that the public would reject a preferred position for
the press on this or any other issue. This has been a problem. We are not
the darlings of the public and we never should be. The fact is that T
think the public would look with a neo:ative view on anything that
seemed to put the press in a special position.
Similarly, if you look nt what the courts have done to the State
shield laws, the courts look with a jaundiced eA^e at special treatment
for those whomaketheirliviugbv writing.
]\rore importantly, while IVfr. Cady and the press may be in a posi-
tion to hide their sources arul their information by using code number'',
we cannot expect the average lawyer or doctor to do any such thing. If
a lawyer bc^an to code liis clients and the witnesses in the cases with his
clients, I should think that by the end o f 1 day he would be up into such
a high number that he would become incapable of knowmjr wliat his
files^said or did not say and what his sources of information were. The
public may have a greater dilliculty in dealing with the Zurcher case
than the press. '^ â€¢ . e
I would also remind you, Senator, that from a reporters point ot
view the fact that lie got a sub]ipna rather than a search warraait is nice
but limited. He did not have his liles ransacked. His employer will go
hire a lawyer. They will spend a lot of time and money fighting about
it. AVhen it is all said and done if the court orders him to reveal his
source, the reporter is now left with a choice between revealing his
sources and going to jail. That is an unhappy choice.
I think the Zurcher case and the legislation that you are considering
lead up to the question of shield laws. The committee ought to keep the
relationship between what it is doing and the shield laws definitely
before its eyes.
I will close with just a few brief remarks on the administration's
proposal. First of all, the bill is a labyrinth of exceptions and sub-
exceptions and categories and subcategories. It will create deep prob-
lems for police and magistrates in determining who may be searched.
Remember, the whole history of fourth amendment warrants is
based upon strictly looking at what is to be searched for and where.
There is no body of jurisprudence as to who is to be searched. The
Supreme Court made that point in the Zurcher case. They are exactl}'^
rigiit on that.
The press is obviously disturbed by the Zurcher case. I do not think
we will be satisfied by putting a checklist up on the wall that says that
now we can keep our sources privileged unless it is a life-endangering
situation or unless it is contraband, and one and on. I do not think they
will be able to comprehend or put into effective daily practice this kind
of complex proposal.
In effect what the legislature ought to do, to the extent it can. is to
simply go back to the pre-1967 era and say that mere evidence may not
be the subject of search warrants. You may get the contraband, and
yon may get the gim. but you cannot get a note or the notes of a
reporter, the shirt, or whatever else.
That line may be hard to enforce on the States because of the con-
stitutional limitations on tlie Congress, but at least it is a clear line.
That is the only kind of a line that the press can function with. It is
also one from which the public can benefit and not feel that the public
is put in a lesser position or that the rights of free speech are any less
than the rights of free press.
Thank you. Senator.
Senator Bayii. Thank you very much. Mr. Delaney.
Without objection, your written statment will also be made a part
of the record in its entirety.
I hope that we can communicate with you and your organization
as we move forward. T think both you gentlemen understand the deli-
cate balance involved here insofar as not denying law enforcement
and Oovernment agencies the tools they need legitimately to pi'otect the
public at large on tlie one liand and. yet. not trami)ling on the right to