Senate Judiciary Committee Democrats Thursday were still unable to garner much Republican support today for legislation that would make it harder for courts to order reporters to divulge their sources, despite making several changes to the bill.
The panel adopted a substitute amendment offered by Democratic Sen. Arlen Specter of Pennsylvania at a committee markup session that would add more national security protections to the bill, which is known as the Free Flow of Information Act of 2009. The panel approved the amendment by unanimous consent, but a slew of threatened GOP amendments prevented the committee from taking a final vote on the measure, which has had the bill on its agenda since April. Specter is also the principal sponsor of the underlying bill.
Republicans have been skeptical of the bill’s effect on national security. The bill and substitute amendment have just one Republican sponsor from the committee - Lindsey Graham of South Carolina.
“The language is not yet perfect,” Jon Kyl (R-Ariz.) told his colleagues. The Judiciary panel Thursday rejected two Kyl amendments addressing some of the GOP’s national security concerns.
According to the Specter substitute amendment approved on Thursday:
- The Attorney General would be required to determine whether a request for information from a journalist is in accordance with the U.S. Attorney’s Manual.
- Journalists would bear the burden of showing that it is necessary for them to withhold requested information when the court balances a request for journalists to divulge information.
- The bill’s national security language would be expanded, giving the courts more power when ruling on requests involving national security issues.
- The bill would include more specific language on the qualifications for a journalist. The proposed language does not cover an individual who is a terrorist or involved in terrorism.
Attorney General Eric Holder supports the changes to the legislation.
In a letter sent to the panel earlier this month, Holder and National Intelligence Director Dennis C. Blair said the Specter amendment is a “significant step forward from previous versions.”
“We appreciate the critical role that the media plays in a free and democratic society,” Holder and Blair wrote in the letter. “This legislation provides robust judicial protection for journalists’ confidential source, while also enabling the government to take measures necessary to protect national security and enforce our criminal laws.”
Stephen Miller, a spokesman for the Judiciary Committee’s top Republican, Jeff Sessions of Alabama, told The Washington Post that the letter from Holder and Blair was “woefully short and left many questions unanswered.”
It will be at least another two weeks until the committee can vote on final passage of the media shield because of the Thanksgiving holiday next week.
Committee Democrats are irked that the media shield bill has languished in the committee since April, but Kyl charged today that panel Democrats have not included him and other Republicans who are opposed to the bill in private meetings about the legislation, forcing the committee to spend a significant amount of time discussing the bill during open markups.
Committee Chairman Patrick Leahy (D-Vt.) urged them to set up meetings with the bill’s sponsors. But he said the bill’s sponsors should put the bill on the Senate calendar and skip a committee vote, if Republicans are “unwilling to cooperate.”
“I remain committed to establishing a meaningful federal shield law,” Leahy said in a statement. “I am disappointed that after seven months this committee was not able to report the Free Flow of Information Act today.”
The House passed its version of the bill in March.