Congress Watch: Senate Judiciary Committee - No Formal Steps Back Or Forward On S. 448 Reporter Shield Law

As we suggested here on November 4, expectations were high for further action on S. 448, the "Free Flow Of Information Act" at the Senate Judiciary Committee's business meeting on November 5. However, the meeting ended with the matter being "held over" for an unscheduled meeting. This raises the prospect that time might run out on the bill before the end of the legislative calendar which would force consideration of the measure into the 2010 election cycle.

In the aftermath of the Senate Judiciary Committee's business meeting, observers were left with doubt about whether the bill might be reported out of the Senate this year. Three new developments present a mixed record:

  • S. 448 “Held Over”: Reporter shield legislation has been in front of the committee for several weeks and was scheduled to be considered at November 5th's Senate Judiciary Committee business meeting. However, both Democratic and Republican Senators expressed a need for additional time to review recently announced changes to the measure. While held over, the current state of the committee's schedule does not yet indicate a time when the measure might be considered before the holidays.
  • Recommitment To A Reporter Shield Law: In opening remarks, Committee Chair Senator Leahy suggested that barriers to passage were not insurmountable. As he told the committee:

    “I put the measure on our agenda for consideration in April of this year. In September, I thought we were finally headed toward consideration when Republican members chose to filibuster the bill. Senator Kyl suggested that we postpone until the discussions with the administration had yielded a new draft. In effect, that is what has happened. … We have a letter from the administration in support of …[a] new draft…. Now we should return to the matter and conclude our consideration of it so that the process can move forward and the Senate may consider it. … The compromise language is not all that I would want, but it is better than it had been … I am prepared to proceed to that measure at the earliest possible time”.
  • Firm Obama Administration Support: The day before the committee hearing, the Administration released a copy of letter to the committee from Attorney General Eric Holder and Director of National Intelligence, Dennis Blair. In the letter, they indicate the Administration's support for the compromise proposal. In expressing this "support" they also "urges that no further amendments be adopted to this carefully crafted compromise."

Only time will tell whether the Reporter Shield Law will be on the legislative agenda for next year. As explained by Senator Charles Schumer, Vice Chair of the Senate Democratic Caucus (and third-ranking Democrat in the Senate):

"We’ve come a long way [with reporter shield legislation] ... and have now reached a compromise that strikes the right balance between national security concerns and the public’s right to know, This new version preserves a strong protection for reporters interested in protecting their sources, while also making sure that the government can still do the job of protecting its citizens. This agreement should expedite this bill’s movement through committee and the full Senate.”

Federal Rules of Evidence