The bad news last week for conservative Republican Rep. Mike Pence was private confirmation that his proposed law protecting journalists from runaway judges was opposed by President George W. Bush himself, not just inflexible Justice Department lawyers. The good news this week for Pence was an unexpected public endorsement by Bush’s successor heading the Republican Party, John McCain.
That aligns McCain with his two Democratic rivals, Barack Obama and Hillary Clinton — reflecting bipartisan support for a shield law. Pence has spent three years seeking federal protection for journalists pressured to reveal confidential sources. His measure passed the House overwhelmingly last October, and a shield bill has cleared the Senate Judiciary Committee. But the issue has been kept off the Senate floor by vigorous opposition from Senate Republican Whip Jon Kyl (McCain’s junior colleague from Arizona).
Federal shield legislation became more urgent March 7, when drastic financial penalties were imposed on a reporter ordered to name all her sources. Opposition to relief by Bush and the Senate Republican leadership questions whether the Grand Old Party stands for limited government or, in pursuit of global terrorism, disdain for constitutional liberties.
No shield law had even reached the floor in Congress for 30 years, but the climate was changed by pressure on journalists by Special Counsel Patrick Fitzgerald in the CIA leak case, including an 85-day stay in prison for New York Times reporter Judith Miller. The House voted 398 to 21 for a shield law with all the Republican leadership on board, despite opposition from the Justice Department.
Journalists generally are not popular with conservative Republicans such as Pence, an evangelical and former chairman of the conservative Republican Study Committee, who challenged the party establishment last year in running for minority leader. Pence summarized his commitment to shield legislation in a two-minute speech he delivered to the House March 12.
U.S. District Judge Reggie Walton of Washington had just levied fines against former USA Today reporter Toni Locy escalating to $5,000 a day for failure to reveal all her confidential sources in reporting the 2001 anthrax attacks. Walton’s decision, now under appeal, stipulated that neither USA Today nor anybody else could help pay the fines for Locy, now a $75,000-a-year journalism professor. Pence told the House that Walton’s conduct showed the need to protect "the one time-tested way of holding the government accountable" and "ensuring the free flow of information to the American people."
In the Senate, Kyl effectively put a hold on shield legislation after last year, proposing an alternative that actually prohibits a reporter from disclosing any classified information, whatever the merit of the classification. Justice Department opposition to a shield was fueled by prosecutors such as Fitzgerald, the U.S. attorney in Chicago, who view journalists as their adversary.
In the first week of April, the administration unlimbered its big guns. Attorney General Michael Mukasey, Homeland Security Secretary Michael Chertoff and Director of National Intelligence J.M. McConnell sent letters to the Senate complaining that shield legislation made it too difficult to catch leakers.
Pence hoped this opposition did not really reflect the president, and I inquired at the White House. Indeed, I was told, this was George W. Bush’s own view. Pence, to his dismay, received that clear message last week.
Considering McCain’s hard line on national security, Pence expected no more than neutrality from a critic of the New York Times disclosure of the government’s communications surveillance. Instead, McCain told the annual meeting of The Associated Press Monday that, after "a hard time deciding," he "narrowly" endorsed shield legislation as not only "a license to do harm" but also "a license to do good, to disclose injustice and unlawfulness and inequities, and to encourage their swift correction."
Pence would like to make that case face-to-face with George W. Bush. But this president is not easy to see even for a prominent congressman of his own party, and Pence may have to settle for talking to a senior aide. Nevertheless, Pence is hard to discourage and still wants that meeting, to enlist his president in helping Congress pass its first press freedom legislation since the Bill of Rights.