By Barbara Cochran, RTNDA President Emeritus

On his first day in office, President Obama declared “the beginning of a new era of openness in our country” and signed orders to make government more accessible to the public. “Transparency and the rule of law will be the touchstones of this presidency,” he instructed his agencies.

That’s why, after such a promising start, it’s so disappointing that the White House has pulled the rug out from under Congress as it closes in on passing a federal shield law.   

RTNDA’s members and friends are well aware of what the shield law does and why it’s needed. The law would protect reporters from being forced in federal cases to reveal their confidential sources. At the state level, 49 states have shield legislation or case law that protects reporters. But there is no such protection at the federal level and increasingly, reporters have been dragged into court by federal prosecutors and even in federal civil cases and told they have to choose between breaking their promises to their sources or going to jail or paying big fines.

To remedy this, RTNDA and a coalition of journalism organizations have been working for years to get a shield law through Congress.

The House has approved the bill and the Senate Judiciary Committee has been meeting for weeks to get language that would win a majority of votes.

Then, unexpectedly, the White House weighed in with its own language that would make the legislation useless.

 Now the bill quite literally hangs in the balance.

The main bone of contention is called a “balancing test.” Proponents of a federal shield law have always run into the objection that in national security cases, reporters should have a different obligation. Most journalists recognize there are legitimate national security concerns that deserve deference, so the proposed legislation calls for a limited rather than an absolute privilege. But it does say that going to reporters should be a last resort, not a first resort, when the government is seeking information and that a judge should make the final decision based on arguments from both sides.

The new language from the White House calls for broader exceptions, including for leaks that cause “significant” damage to national security, and says judges cannot balance competing claims but must take the administration’s word for what is “significant” harm.

This is a critical difference. Rather than allowing an independent judge to balance the arguments and make the final decision, the administration would have the final say and could define “significant” national security harm as broadly as it likes. Past experience teaches us that too often government officials claim national security must be protected when they’re really trying to avoid political embarrassment.

Another worrisome change was a weakening of the balancing test in civil cases. With increasing frequency, plaintiffs in civil cases have been calling reporters into court to try to force them to reveal their sources. Reporters from ABC, CBS and CNN have been caught up in the Wen Ho Lee and Stephen Hatfill cases and in one instance a former USA Today reporter paid thousands of dollars in fines out of her own pocket.

As a senator and as a presidential candidate, Obama backed the shield law. Atty. Gen. Eric Holder gave qualified support during his confirmation hearing. The 180-degree change came as a shock not only to the journalists’ coalition but to the bill’s supporters on Capitol Hill.

Sen. Charles Schumer, D-NY, one of the bill’s leading advocates, said, “The administration's opposition to the core of this bill came as a complete surprise and doesn't show much concern for compromise. This turns the bill’s near-certain passage into an uphill fight.” 

White House spokesmen have said the new language is a proposal, not a final position, and negotiations are continuing. But shield law supporters are very concerned.

Some newspapers have published editorials calling on the President to remember his campaign promises and support meaningful shield legislation. You can help, too, by letting your senators and House members know how important it is to enact a bill that truly protects confidential sources.

It would be a shame to have come this far only to fall short.