By Matt Pulle

This year, Tennessee state lawmakers entertained two stark options for authoring a state budget, arguably their most important political function and certainly the most consequential, considering that it touches the lives of millions of people. They could debate controversial amendments and various tax proposals in plain view of a keenly interested press and public, or they could sneak behind closed doors, shut out reporters and other citizens, and hammer out the essence of the budget in virtual anonymity.

With some minor exceptions, they choose the latter. Though it might appear otherwise, it was not necessarily an act of cowardice. Rather, state lawmakers were reflexively reverting back to a well-worn tradition of secrecy—a tradition that historically has ebbed and flowed in relation to the vigilance and integrity of the local press.

When journalist Wayne Whitt came to The Tennessean more than 50 years ago, for instance, he immediately found himself embroiled in this familar conflict; local government officials would frequently shut the doors whenever they wanted to talk shop. “I remember when covering the courthouse in 1946 the county highway commission always had closed meetings,” he says. “We took them on for two or three years, and when we finally got them open, they weren’t talking about anything anyway.”

Regardless of their relevance, closed meetings almost always infuriate high-minded journalists, who typically view legislative secrecy as an indirect but nevertheless egregious violation of the free press clause of the First Amendment. When public officials close off their deliberations to journalists, it has been argued, they have effectively censored the press by mandating what it can and cannot report. Of course, this is no mere academic issue. Much as a clogged artery can impede the flow of blood to the body, a stifled press corps strains to deliver important information to the electorate. It becomes harder for voters to make the decisions that comprise their civic duty—be it the fate of a legislator or the value of a statewide income tax.

On Monday, Aug. 28, Davidson County Circuit Court Judge Hamilton Gayden will hear a wide-ranging and potentially explosive lawsuit that will probe the free-press provisions of not only the First Amendment, but also the Tennessee Constitution. A rather radical document that actually encourages people to reform the government as “they may think proper,” the state constitution carries its populist streak to open government. Originally drafted in 1796, it very clearly reads in section 19 of its Declaration of Rights that “the printing press shall be free to every person to examine the proceedings of the Legislature.” On top of that, the constitution also declares with a little less gusto that “the doors of each House and the committee as a whole shall be kept open, unless when the business shall be such as ought to be kept secret.”

Now it’s time to test the constitution’s relevance. Pointing to that document and to the state’s more recent “sunshine law,” which mandates open meetings, a ragtag collection of four unlikely plaintiffs—Mark Mayhew, a former television news director turned law clerk; the Nashville Scene; In Review; and local business news Web site Nashville Post.com—has sued nearly every member of the state legislature and asked the judge to throw out this year’s $18 billion budget. This budget, they claim, was an outgrowth of various secret meetings held primarily by members of the joint Senate and House Conference Committee and as a direct result ought to be nullified—much the same way a referee would disqualify a touchdown pass after an offsides penalty. Nearly all the major daily newspapers in the state have joined the lawsuit, although they are seeking a ruling only on whether the state’s open meetings statute applies to the Tennessee General Assembly. They do not, in other words, ask that the budget be thrown out.

The current struggle against closed meetings is reminiscent of a battle for press rights that first gathered steam a generation ago. At a time when African Americans were demanding the rights afforded to them by the U.S. Constitution, journalists in Tennessee were waging a less prominent battle for a very simple freedom: access to all deliberations of government.

Interestingly, that fight was waged in the midst of a political climate not much different than the one today: Influential lawmakers were gathering privately, debating some of the most important bills of the session. They were a divisive, starkly political bunch, entangled in a messy web of fractious alliances. Seeking refuge in whatever space they could find, they made comments they wouldn’t dare utter in public, talking about their opponents, the governor, and pending legislation.

It was winter of 1965, a tumultuous time in Tennessee state politics. Frank Clement was governor, and the Tennessee General Assembly was under his control. Nevertheless, a group of new, independent lawmakers was starting to gain power; they were called “the reformers.” To thwart this emerging contingent, legislators loyal to Clement would secretly amend various items of legislation to his liking.

This did not go over well with Bill Kovach, a reporter for The Tennessean. An East Tennessee boy who had planned a career in marine biology, Kovach entered into a lifelong love affair with journalism when he took a temporary job with a local paper. In just a few short weeks, he’d helped bust a sheriff who was conducting illegal searches and planting evidence on suspected bootleggers. When he came to The Tennessean, he fell under the influence of two legendary journalists: Nat Caldwell, a Pulitzer Prize-winning investigative reporter, and Jennings Perry, an editorial page editor who led The Tennessean’s fight against the machine of Boss Crump, the Memphis kingmaker who controlled state politics for a generation.

It wasn’t long before Kovach started following in the footsteps of his mentors. In 1962, he helped uncover an outrageous election scandal, in which Gene “Little Evil” Jacobs, a Nashville councilman and political hack, rather proudly stuffed the ballot boxes for the incumbent congressman, the aptly named Carlton Loser, in the Democratic Party primary against Richard Fulton, then a little-known state senator. Loser appeared to pull out a razor-thin victory, but The Tennessean, led by Kovach, doggedly uncovered an inordinate amount of absentee ballots for the congressman. Under considerable public pressure, Fulton was allowed to run again against Loser in the general election, and this time, Fulton won handily.

Having virtually overturned a congressional election, Kovach was not the kind of reporter who was going to be intimidated easily. In 1965, he was covering the state Senate for The Tennessean and becoming increasingly frustrated at the number of important committee meetings held behind closed doors. His mentors, Caldwell and Perry, were telling him that the state constitution was an unabashedly populist document that placed clear restrictions on closed government.

Citing the allowances the state constitution gave to the press, Kovach suggested to his editor, a young and equally idealistic John Seigenthaler, that the newspaper challenge the Senate’s next closed meeting. Talking it over with attorney Al Knight, Seigenthaler decided that they would wait until a Senate committee took up a recently passed House bill that required all lobbyists to register with the state. “There had been a rather smarmy relationship between lobbyists and legislators,” Seigenthaler remembers. “It was not difficult to make the case that this was the public’s business.”

The next day, Kovach went to the committee meeting, and when the committee members announced they were meeting privately, he stayed put. “The chair of the committee told me, ‘You’ve got to get out,’ ” Kovach recalls. “And I told him, ‘The people have a right to know. My editor told me we have a right to know under the constitution.’ ”

The committee chair called the beefy sergeant at arms, Mickey McGuire, to throw Kovach out of the meeting. But at the crafty Kovach’s suggestion, McGuire was out grabbing a cup of coffee. Then Dana Ford Thomas, a reporter for the Knoxville News-Sentinel, decided to come to his peer’s aid and wouldn’t leave the meeting either. Frustrated, the committee adjourned.

“I had admiration for his courage,” says then-state Sen. Jerry Flippen, who was present when Kovach refused to leave the meeting. “He was a real professional. He tested the validity of the secret session with dignity.”

The next day, Senate Speaker Jarred Maddux convened the Senate an hour early. An ally of Gov. Clement and an enemy of The Tennessean, he successfully introduced a resolution banning Kovach and all Tennessean reporters from the Senate chamber. When Kovach arrived for work, the sergeant at arms blocked his way and told him what the Senate had just done. Kovach rushed back to his newsroom, and his editors summoned The Tennessean’s main lawyers, a young, sharp trio that included Bill Willis and brothers Henry and John Jay Hooker.

Willis decided that before the newspaper went to court to sue the government for the right to attend meetings, it needed to see whether the Senate would continue to enforce its resolution. So along with political reporter Larry Daughtrey, Willis himself marched to the floor of the state Senate.

“I remember standing at the door of the Senate, and you had the chief sergeant at arms, who was a highway patrol officer and stood about 6-foot-3 and weighed about 200 pounds, and Larry, who was about 5-foot-7 and 130 pounds,” Willis recalls. “And Larry said, ‘Stand aside, inspector. I’m coming through.’ ”

Daughtrey and Willis were refused entry. Not long afterward, Daughtrey began attempting to sit in on closed meetings in the state House, which he covered. “I would just regularly refuse to leave, and they would just send the sergeant at arms,” he recalls. “It was done politely, but the justification was that this is how it’s always been done.”

If reporting is a young man’s game, then Daughtrey and Kovach were in their prime. Daughtrey, who began stringing for The Tennessean when he was a mere undergraduate at Vanderbilt University, was all of 25, while Kovach was in his early 30s. The two toiled daily on Capitol Hill and lived only a mile apart in one of the few modest sections of Belle Meade.

“My colleagues were supportive,” Daughtrey remembers, “and a good number of legislators were opposed to secret meetings as well.”

But interestingly, one of the most vocal proponents of secret meetings over the years was a reporter himself. Fred Travis, the crusty correspondent for The Chattanooga Times, believed that open meetings benefited lazy reporters. “ ‘Let them have closed meetings; I’ve got my sources. I can get the news anytime I want it,’ ” Seigenthaler remembers Travis saying.

Not needing any more enemies, Seigenthaler phoned Travis’ publisher in Chattanooga, and she quickly “corrected” the situation. “She told him to shut the hell up,” Seigenthaler recalls.

At first, though, Daughtrey and Kovach weren’t completely confident that the newspaper would back them up in their quest. One evening, they were enjoying a few beers with Willis at the Gerst Haus, the popular gathering joint for politicians and journalists. The two reporters worried what they would do if their newspaper “left us on our own.” Willis assured them that if that happened, he would represent them free of charge.

But The Tennessean did sue the Senate, with unmitigated support from publisher Amon Evans, who helped set the tone for many of the paper’s crusades. Armed with some of the top media lawyers in the state, if not the country, The Tennessean sought to overturn the Senate’s ban on its reporters in federal court before a Republican-appointed judge named William Miller. With Seigenthaler only in his late 30s and publisher Amon Evans a few years younger, The Tennessean undoubtedly exuded a youthful blend of idealism and arrogance.

That fact was not lost on the state attorney general’s office, which was representing the Senate. Arguing before the judge, one of the office’s attorneys defended the Senate’s punitive resolution by saying, “Young boys need a spanking.”

Instead, it was the old guard that got the spanking. Citing the First Amendment, the judge struck down the Senate ban on Feb. 22, 1965. It was a momentous event. After the judge’s decision, secret meetings in the Tennessee General Assembly started going out of fashion. Maddux, the staunch defender of the Legislature’s environment of secrecy, was replaced as Senate speaker by the more progressive Frank Gorrell. And Clement’s successor, Buford Ellington, became an unlikely supporter of open meetings.

Daughtrey would go on to become one of the preemiment political reporters in the state. Today, his Sunday column remains a must-read for anyone interested in state politics. Following in the footsteps of The Tennessean’s David Halberstam, Kovach would soon go to The New York Times, where he became chief of the newspaper’s Washington, D.C., bureau. Today, he looks back fondly on his days at The Tennessean. “Those were the happiest days of my life. Thank God there was a Nashville Tennessean with an editor like John Seigenthaler.”

For his part, Seigenthaler says he was proud when Kovach and Daughtrey challenged the Legislature’s longstanding practice of holding closed meetings. “I had covered the Legislature for one session, and I had gone through the same experience. I had always considered it humiliating; it grilled me to have them say, ‘Get out, we’re going to do public business in private.’ ”

After The Tennessean’s successful defiance of the Legislature, sunshine laws began popping up across the country. But, interestingly, it would be another nine years before the state actually had one of its own—a law that solidified and clarified language that was already in the state constitution. There were at least two reasons for the delay. First, free-press advocates did not want to push their luck and calculated that they didn’t have the votes in the Legislature to pass such a law. Second, secret meetings were, at least for the moment, becoming the exception and not the rule.

But elsewhere in the state, school boards, city councils, and even the board of the Tennessee Valley Authority continued to sneak behind closed doors to discuss some of the more divisive policy issues of the day. And after a few years, some lawmakers fell back into their old habit of meeting secretly. This time around, however, they were being countered by a far stronger contingent of progressive lawmakers.

“In the ’60s, the Legislature was simply a rubber stamp for the governor. It was good-ol’-boy, cigar-smoking politics,” says David Lyons, who covered Capitol Hill for the Knoxville News-Sentinel. “But the new breed wanted to reform things and have a more open form of government.”

In 1974, in the aftermath of the Watergate scandal, the Tennessee Press Association, along with The Tennessean, began lobbying heavily for an Open Meetings Act. The organization helped draft the bill, which it purposely intended to be as far-reaching as possible.

Initially, some lawmakers balked at passing any kind of sunshine law. “There was a lot of debate. Many lawmakers said that the Legislature can and should do its own thing,” recalls former state representative and House floor leader Tommy Burnett. “You basically had a general feeling that this was an invasion of the legislative process and that as long as the final vote was taken in public, there was no violation of the state constitution.”

No shortage of groups opposed a sunshine law. According to a 1974 story in The Tennessean, these included the city of Memphis, Metro Nashville Government, and the Tennessee Municipal League—a coalition that obviously understood that the scope of the act would extend to their own practice of private deliberations. But the scorched-earth battle that many expected never materialized. In the early spring of 1974, the Open Meetings Act passed fairly easily. Some lawmakers didn’t want to antagonize The Tennessean, while some Democratic members saw the act as a check on the power of the Republican Gov. Winfield Dunn. Others, perhaps even the majority of state lawmakers, simply felt like this was just something they should do.

“The Legislature was coming of age, and this was a part of that,” says Bill Peeler, a former state senator from Waverly who helped push for the passage of the Open Meetings Act. “I just felt that the people’s business ought to be kept open. It was fair to say that some of my colleagues did not agree with me, but I experienced no reprisals of any kind.”

The passage of the Open Meetings Act was yet another triumph for The Tennessean, which regarded press rights as part of its overall crusade for civil rights and social justice. (It’s no understatement to say that the highly conservative Nashville Banner did not avidly take on any of these causes, including the push for the Open Meetings Act.) But as it turns out, the passage of the bill hardly squelched the practice of closed meetings on Capitol Hill. In fact, some reporters insist that the Open Meetings Act wound up affecting local governments far more than the General Assembly.

“The Open Meetings [Act] really did not change much on the Hill,” recalls Jim Travis, who had begun covering state politics for WSMV-TV Channel 4 in 1970. “My guess is that its real effect was elsewhere.” Ironically, even though open meetings were seen as the catalyst for a more independent Legislature, secret deliberations became more common as that body began asserting its autonomy. Legislators began breaking a law they’d passed of their own accord.

The confusion over the Open Meetings Act—one that lingers to this very day—arose because members of the Legislature felt that it simply did not apply to various committee meetings. Even John Bragg, the House sponsor of the bill, felt that way, so he himself took part in secret deliberations. “I was in all kinds of private meetings,” he recalls. “Everybody thought that was the best way to get things done.”

As they often do today, lawmakers would try to excuse their secret meetings by claiming that nothing of importance was being discussed. Tommy Burnett, however, remembers otherwise. “Normally, we would talk about budget cuts, projects, dividing up the pie, where the money is coming from,” he says, remembering that legislators typically convened at local hotels and restaurants. “If times were really hard and the budget was tight, you could bet your bottom dollar that there would be a closed meeting. We had some real wars in those closed meetings.”

Burnett says that reporters either did not know about the meetings or didn’t try to break them up. But occasionally, lawmakers flaunted their culture of secrecy too boldly, inviting the scorn and resistance of the press.

In the late 1970s, T. Tommy Cutrer, a state representative from Sumner County and a former announcer for WSM radio, was pushing for a bill that would have benefited the trucking industry. One day, the Knoxville News-Sentinel’s David Lyons noticed that a group of Teamsters was literally camped out in Cutrer’s legislative office, using his phone and helping lobby for the bill. Lyons wrote a column about what he saw, and when he later attended a committee meeting that was set to discuss the bill, an angry Cutrer ordered him out of the room.

“I went out and called my publisher and editor,” Lyons recalls. “My instructions were to walk back in.” Cutrer relented and was eventually defeated in the next election. In a telling side note, the story goes that he moved to Florida, where he took a job working for the local Teamster’s union.

Those lawmakers not quite as bold as Cutrer would try to find ways they could meet openly while staying out of the harsh glare of the press spotlight. Sometimes former Gov. Ned Ray McWherter, then the House speaker, would hold committee meetings as late as 11 o’clock at night. He might not block the press from attending, but there was an understanding that journalists wouldn’t report what was said in the meeting until after the House and Senate voted on the items in question.

“Ned wouldn’t say much; he’d just sit there smoking cigars,” Lyons recalls. “The other guys would talk about which amendments to the budget would pass and which ones wouldn’t.

“We’d know the next morning what would pass and what wouldn’t; we just couldn’t write about it. Actually, you could write about it. You just wouldn’t be invited back.”

In the years since, lawmakers have frequently met behind closed doors to divvy up, by district, cumbersome pork-barrel projects. Most reporters have viewed the meetings as unseemly, but haven’t felt like they were worth protesting. This year, however, the stakes reached epic proportions when state lawmakers, prompted by Gov. Don Sundquist, began discussing the possibility of an income tax to generate needed revenue.

The intense controversy that accompanied this discussion fostered a hostile political environment. Appealing wildly to the anti-tax crowd, local talk-radio hosts stirred public frenzy by encouraging listeners to voice their discontent loudly. Many of them did just that, motoring around Legislative Plaza honking their horns and hissing at lawmakers. At least two state senators feared for their lives, and Capitol Hill police found themselves taking extra security precautions.

Few lawmakers openly supported an income tax, but privately many of them felt like it would be the most efficient means to plug the approximately $300 million budget shortfall. Other lawmakers felt like drastic budget cuts were necessary. Whatever stance they took, few of them wanted to proclaim it out in the open—so inevitably much was discussed in closed meetings.

“We discussed a lot of the potential budget cuts,” Sen. Joe Haynes of Goodlettsville says of the private deliberations in which he took part. He insists, however, that all initiatives debated privately were eventually discussed in public. “We had tried to reach some consensus on what might get six votes on the Finance Committee.”

In what may well be the best argument against secret meetings, the final budget was not exactly a tribute to fiscal competence. Vetoed by the governor, and then quickly overturned by the Legislature, the final state spending plan included neither an income tax nor budget cuts, but instead relied on optimistic revenue projections and nonrecurring funds. Two financial agencies have since dropped the state’s bond rating.

That budget and the actions that produced it are now at the center of the current lawsuit against the state. Naturally, many Republicans have countered that the plaintiffs would not be suing the Legislature if it had passed an income tax. And George Barrett, the lead attorney for the plaintiffs and a longtime fighter for liberal causes, hasn’t exactly dispelled that notion. He acknowledges that this isn’t the first time the lawmakers have deliberated privately, but “it is the first time it’s pissed me off,” he says.

Still, even if closed meetings are hardly a recent phenomenon, the stakes are sky-high this time around. Lawmakers in this year’s secret sessions weren’t discussing which one of them will get his county’s bridge repaired. They were debating the large and fine points alike of an $18 billion budget that will affect more than 4 million Tennesseans.

As a result of the current lawsuit, the drama that surrounded this year’s budget talks on Capitol Hill has now moved a few blocks east to the Metro Courthouse. And once again, lawmakers are on the defensive.

Interestingly, the state attorney general’s office is not arguing against the case on some technicality, but rather laying out an aggressive argument that neither the Open Meetings Act nor the state constitution forbids secret meetings.

Chief deputy general Andy Bennett argued in a recent hearing that application of the Open Meetings Act “is solely up to the Legislature,” and he said that the state constitution leaves much “to the discretion of the Legislature.” Referring to the wording that says “the doors of each House...shall be kept open, unless when the business shall be such as ought to be kept secret,” Bennett argued that this is the so-called exception that swallows the rule. But most observers believe that the framers intended the exception clause only to cover dire circumstances like the possibility of secession; it doesn’t extend, they insist, to such routine matters as budget deliberations.

While the state constitution may be open to interpretation, the attorney general’s office has made a number of arguments that are seemingly in opposition to the First Amendment and the entire premise of an open government. “It is the opinion of the state that there is no constitutional right of the press and public to attend all meetings,” associate attorney general Michael Catalano argued. He went on to quote Otto von Bismarck, who noted that there are two things you should never see made: “laws and sausage.”

It was as if little had changed from the day 35 years ago when Bill Kovach refused to leave a Senate committee meeting. The Legislature was again running the show, while the press was informed that it had to comply with the age-old custom of secrecy.

For the time being, though, the judge has refused to turn back the clock and has overruled the attorney general’s motion to dismiss the lawsuit. Perhaps he was swayed by attorney Alan Johnson, who was representing The Tennessean, a frequent proponent of First Amendment rights.

Unlike in the ’60s and early ’70s when the paper was locally owned, Gannett’s Tennessean now rarely takes on causes with such passion and precision. Relying more on “readership surveys” than the instincts and passions of its editor, the daily joined the lawsuit weeks after it was filed and only then to seek a clarification of the Open Meetings Act.

But still, for one afternoon in the Metro Courthouse, the paper revived the spirit of its glory days when Johnson offered the most compelling argument of the day. “I like to know what goes into sausage, just like I would like to know what are the laws that govern my life,” he said in a quick and disarming rebuttal to Catalano’s earlier quip. “A government that transacts the business of the people in secret, behind closed doors, is no longer a free government of the people.... If you’re going to have a free-speech clause, free access must accompany it. The press cannot publish what the press does not know.”

Chief deputy general Andy Bennett argued in a recent hearing that application of the Open Meetings Act “is solely up to the Legislature,” and he said that the state constitution leaves much “to the discretion of the Legislature.” Referring to the wording that says “the doors of each House...shall be kept open, unless when the business shall be such as ought to be kept secret,” Bennett argued that this is the so-called exception that swallows the rule. But most observers believe that the framers intended the exception clause only to cover dire circumstances like the possibility of secession; it doesn’t extend, they insist, to such routine matters as budget deliberations.

While the state constitution may be open to interpretation, the attorney general’s office has made a number of arguments that are seemingly in opposition to the First Amendment and the entire premise of an open government. “It is the opinion of the state that there is no constitutional right of the press and public to attend all meetings,” associate attorney general Michael Catalano argued. He went on to quote Otto von Bismarck, who noted that there are two things you should never see made: “laws and sausage.”

It was as if little had changed from the day 35 years ago when Bill Kovach refused to leave a Senate committee meeting. The Legislature was again running the show, while the press was informed that it had to comply with the age-old custom of secrecy.

For the time being, though, the judge has refused to turn back the clock and has overruled the attorney general’s motion to dismiss the lawsuit. Perhaps he was swayed by attorney Alan Johnson, who was representing The Tennessean, a frequent proponent of First Amendment rights.

Unlike in the ’60s and early ’70s when the paper was locally owned, Gannett’s Tennessean now rarely takes on causes with such passion and precision. Relying more on “readership surveys” than the instincts and passions of its editor, the daily joined the lawsuit weeks after it was filed and only then to seek a clarification of the Open Meetings Act.

But still, for one afternoon in the Metro Courthouse, the paper revived the spirit of its glory days when Johnson offered the most compelling argument of the day. “I like to know what goes into sausage, just like I would like to know what are the laws that govern my life,” he said in a quick and disarming rebuttal to Catalano’s earlier quip. “A government that transacts the business of the people in secret, behind closed doors, is no longer a free government of the people.... If you’re going to have a free-speech clause, free access must accompany it. The press cannot publish what the press does not know.”