Shield law a casualty of gridlock
Protections for journalists fall by wayside again
Back in July 2013, Sen. Charles Schumer was brimming with confidence that Congress would at long last enact a desperately needed federal shield law granting journalists protection from being forced to reveal confidential sources.
“I think it will pass the House and the Senate, and I think it will become law relatively quickly, by congressional standards,” the New York Democrat, a champion of the measure, told me at the time.
What a difference 15 months makes. It’s clear that once again, while it enjoys the support of a majority of senators, the shield law is doomed. And while 48 states and the District of Columbia have shield laws or court precedents protecting confidentiality, the federal government will remain an outlier.
This is hardly an issue that matters only to journalists. Many watchdog stories important to the American people depend on confidential sources, people who would put themselves or their jobs in danger if they were identified. Journalists shouldn’t have to face time in the slammer because they kept a promise, as Judith Miller, then with The New York
Times, did in 2005 when she spent 85 days in jail to protect a source.
When he made his bold statement, it looked like Schumer was on to something. There was rampant concern over government actions in leak investigations involving the Associated Press and Fox News. New York Times reporter James Risen, then as now, faced the possibility of going to jail for refusing to give up a source. Team Obama, on the ropes, asked Schumer to revive the shield law.
Six weeks after Schumer’s prediction, the Senate Judiciary Committee approved the measure, and this year the House included shield legislation as an amendment to an unrelated bill.
But the shield bill still hasn’t made it to the Senate floor. And its chances of doing so when Congress returns for what’s anticipated to be a totally unproductive lame duck session on Nov. 12 are about as good as those of Adrian Peterson scooping up a Father of the Year award.
And so the shield law, like immigration reform and gun control, looms as yet another casualty of the gridlock that has paralyzed Capitol Hill and turned Congress into a wildly dysfunctional and widely loathed travesty.
“Essentially, we are caught up in the gridlock happening in Washington,” says Paul Boyle, senior VP for public policy of the Newspaper Association of America and point man for a broad coalition of organizations pushing for the shield legislation. He adds, “Unless something remarkable happens, it’s not going to go to the floor.”
Kevin Goldberg, legal counsel for another member of the coalition, the American Society of News Editors, is similarly downbeat. “I’m not optimistic for this year,” Goldberg said on a panel at the joint convention held by ASNE and Associated Press Media Editors in Chicago last week. “We’re running out of time.”
Shield law enthusiasts have come close before. They seemed on the verge of triumph when the House and the Senate Judiciary Committee approved it in 2009. Then the bill was smothered by the hysteria over WikiLeaks.
But don’t expect the coalition to pick itself up, dust itself off and start over again in the next Congress. Given the state of play on Capitol Hill, what would be the point? Regardless of whether Republicans take the Senate by a narrow margin or the Democrats hang on, Doppler radar suggests the forecast calls for a 100% chance for continued paralysis inside the Beltway.
Boyle told me he doesn’t see another push next year. “There will be just as much gridlock,” he says. “It doesn’t make sense.”
Coalition members are frustrated by the fact that a majority of senators back the bill. Boyle says his count shows 56 ayes and 20 undecideds, many of which he thinks he would snag. (The way the Senate works these days, it takes 60 votes to get it done.)
But if there’s a majority for it, why wasn’t there at least a vote before, and why won’t there be one in the lame duck? If Senate Majority Leader Harry Reid, DNev., called the bill up, Republicans would insist on time to debate a plethora of amendments. “I just don’t see a scenario where the Senate would be spending a week on shield legislation,” Boyle says.
The result: Yet another swing and a miss by Congress.