The Magazine

Shielding What from Whom?

Jun 3, 2013, Vol. 18, No. 36 • By ANDREW FERGUSON
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The workings of Washington sometimes attain a kind of purity in their illogic. This happens most often after a particularly jarring event, when the frenzy to do something, anything, becomes irresistible to the beehiving journalists, legislators, lobbyists, and regulators who constitute the capital’s political class. Usually the legislative overreaction is blessedly fleeting and inconsequential. The demand for new gun control measures after the horrors of Newtown is a nice example: Although the legislation would have done nothing to prevent the atrocity that provoked it, it gave our city’s peacocks many weeks of deeply satisfying moral preening and then faded harmlessly away, leaving only a litter of scare headlines, outraged op-eds, and hysterical fundraising appeals tumbling amid the tail feathers. 

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Other times, Washington’s gratuitous overreaction has lasting and genuinely destructive effects. The War Powers Resolution of 1973 and the Budget Act of 1974 were supposed to reclaim congressional prerogatives in the midst of the executive excesses revealed by the Watergate scandal. Together the two laws have distorted policy-making in every department of the federal government for nearly 40 years. And now comes the journalism “shield law” that President Obama suddenly insists is a dire necessity. Cosponsored by Sen. Charles Schumer, a Democrat, and Sen. Lindsey Graham, a Republican—hey, that makes it bipartisan!—the Free Flow of Information Act has the declared purpose of making it harder for prosecutors to wrangle the names of government sources (leakers) from journalists (leakees). As an exercise in gestural politics, it wouldn’t confuse democratic processes as profoundly as the post-Watergate legislation did. But close enough for government work.

In keeping with Washington’s illogic, the shield law would likely have done nothing to avert the jarring event that inspired it. Earlier this month, we all learned that Justice Department officials, investigating the leak of a counterterrorism operation in Yemen and beyond, had subpoenaed and pawed through the phone records of reporters in the Washington bureau of the Associated Press. Republicans and Democrats alike rose on their hind legs to declare themselves “profoundly disturbed” and “deeply concerned.” When legislators insist on describing their emotional state in this way, you can be sure they are temporarily at a loss for something to do but will do it anyway, by God. Fortunately for them, Schumer offers them something to do: In 2009, with the encouragement of the president, he introduced a federal shield bill protecting journalists from overreaching investigations. The bill died a quiet death then, owing to a lack of support from the president. Now the president supports it again. He knows a potential bandwagon when he needs one.  

In fact, back in 2008, Sen. Obama joined John McCain, Richard Lugar, and many other bipartisan types to cosponsor a shield law even broader than Schumer’s 2009 bill. He also pledged his devotion to journalistic privilege in a deferential appearance before a gathering of newspaper editors. But we know how it goes with those promises made by Barack Obama during that first campaign, when the world was young. Once he was president his enthusiasm for a shield law went the way of his hatred for the Patriot Act or his insistence on comprehensive climate change legislation. Dreams collided with reality and reality won. By the time Schumer’s 2009 bill died, Obama’s Justice Department had managed to weaken the journalistic privilege with special exceptions, allowing judges to approve the release of private records to prosecutors and to compel reporters to testify about leaks that endanger national security.

Those exceptions will likely remain in the current bill, which means it could not have inhibited the Justice Department from doing what it did to the AP and its phone records. The Free Flow of Information Act is, in other words, completely beside the point. But if it passes now it will not be without effects, most of them pernicious.

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