Congress Watch: Senate Judiciary Committee Action Stalls On Reporter Shield Bill (S. 448)

While efforts to approve S. 448 (the Reporter Shield Law) failed in last week’s Executive Session of the Senate Judiciary Committee, advocates remain optimistic that the measure may be reported out of committee since the measure has been scheduled for committee consideration this week. While hope seems high for committee markup of the measure, in the public media there seems to be little indication that the concerns that sidetracked the measure at the Committee’s September 17, 2009 meeting have been resolved.

As noted last week, there have been recent signs of a possible emerging consensus in the Senate Judiciary Committee on a substitute measure (HEN09794) for the Free Flow of Information Act, S. 448. The substitute measure purports to address various national security concerns that arose about the bill as originally introduced in February 2009. However, news reports of the latest discussion of the measure by the Senate Judiciary Committee on September 17, 2009 reflect little of the expected “bipartisan” agreement. Even Democrats on the Committee appeared divided.

As reported by John Eggerton for Multichannel News, after the committee’s September 17th meeting:

“[A] committee source … speaking on background, said the Sept. 17 vote [on S. 448] was not held once it became clear there were going to be no amendments offered -- and after over 90 minutes of statements and discussions -- several members had to leave to deal with health care and appropriations bills on the floor. That left the committee without enough members for an official vote.”
Multichannel News also reported that Judiciary Committee Chair Patrick Leahy (Sen. D-Vt.) expressed frustration at this turn of events:

“Despite weeks of debate and months of negotiations, Committee Republicans stonewalled consideration of amendments … I had hoped the Committee could proceed with this open government legislation. I am committed to reporting a reporters' shield bill from the Judiciary Committee this year, and I hope all Senators will work with us to reach that goal.”


In another account of the committee’s unproductive session, Cristina Abello of The Reporter’s Committee for Freedom of the Press noted that the bill’s “progress faltered as Sen. Jeff Sessions (R-Ala.) and other committee Republicans effectively ‘stonewalled’ progress on the bill.” Apparently Senator Sessions questioned the need for the measure, asserting that from 1992 to 2006 only 19 cases involving the subpoena of reporters had been filed. Sen. Jon Kyl (R-Ariz.) decried what he termed the exclusion of Republicans in negotiating with the “administration” over the bill, adding it made no sense to move forward on a version “that we all agree is not going to be the bill.” Even bill sponsor Sen. Charles Schumer, (D-N.Y.) admitted to meeting on Wednesday, September 16, 2009, with U.S. Attorney General Eric Holder. As a result of their discussions he thought they were “well on the way to a compromise. We will have the administration’s support,” he claimed, although he failed to specify precisely the matters in the bill required compromise. Senatus: Archive for September, 2009 - No Committee Action Yet on Media Shield Bill, September 17, 2009

Reports on the Judiciary Committee’s September 17th session suggested various types of amendments that might be forthcoming on the measure, including:

  • Attempts to strip the “public interest balancing test” from Sections 2(a)(3) and Section 5(2) of the bill
  • Discontent within the intelligence committee about the balancing test was suggested by Diane Feinstein (D-Ca) and she indicated she would not vote for the bill as now written
  • Fears expressed by both Senators Feinstein and Sessions of hearing from former and current intelligence officials to the effect that the Intelligence Community’s ability to run their operations are being “harmed by the constant barrage of leaks” and that S. 448 might serve to increase this leakage
  • FBI Director Robert Mueller expressed concerns about the generic idea of a federal shield law, but did not note anything explicitly concerning the pending legislation.
  • Justice Department spokesman Matthew Miller declined to comment on “negotiations” between bill proponents and the administration and Senator Charles Schumer (D-N.Y.) said his discussions with the Department on the legislation demonstrated an administration “willing to compromise
  • Senator Schumer introduced amendments (HEN09860) to S. 448, which the committee had earlier adopted at its September 10th meeting.

While the delay in a vote on the bill at the September 17th meeting was met with disappointment by proponents, the re-scheduling of the measure for a September 24th markup gave proponents a reason to believe that the bill is “back on track.” Supporters, such as the Society of Professional Journalists hoped again for a “quick turnaround” and announced that the Committee’s September 24 deliberations would be webcast.

As these developments indicate, whether the committee may report out reporter shield legislation remains to be seen. More information is expected later this week.

For past blog posts on the reporter shield legislation, see Reporter Shield Law.

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