The pair then introduced a modified amendment (pdf), which explicitly included news Web sites and student journalists. It also introduced a look-back mechanism that would provide coverage for anyone who held a formal news dissemination gig for six months out of the two years previous to receiving the information the prosecutor sought, a move that would have protected many laid-off, retired, or intermittently employed journalists working without contracts.
Despite the modifications, Durbin and Feinstein didn’t go far enough to slake journalists’ opposition. When Cope and Boyle presented the coalition with the modified amendments, the coalition strongly objected to details in their amendment that left some worried—like a section that made it unclear if reporters who only rely on documents for their stories would be protected if they were to one day take a phone call that became a subject of a subpoena. The coalition was also troubled by a provision which would have left pseudonymous and anonymous writers unprotected—a class that would have presumably excluded editorial writers.
“It’s these nuanced things where people were saying this is too much for our coalition to be able to support,” says Cope.
The coalition was willing to continue to work with Durbin and Feinstein on some amendment that might refine the definition to their satisfaction. But as the next and likely final committee meeting on the bill loomed, there simply wasn’t time.
“The markup came in the middle of the negotiation,” says Cope. “They wanted to bring the debate up in committee.”
When Feinstein introduced this modified amendment on Thursday, she said that it had earned the support of the coalitions’ lobbyists, but had been rejected by the coalition itself. But Cope says that they never had that sort of agreement.
“What we were trying to do was try to provide some feedback there. We were always, always, always clear with her staff that we have to go back to the coalition to get support,” says Cope.
At Thursday’s hearing, after the committee agreed to eliminate the shield law’s protections for subpoenas seeking certain information on child sex crimes, critical infrastructure, and weapons of mass destruction, Feinstein introduced the modified amendment. After Senator Ben Cardin of Maryland voiced editorialist-related concerns, Durbin struck the portion limiting protection to pseudonymous and anonymous writers. Even so, Senators Schmuer and Specter argued vociferously against it, and when the vote came, the amendment failed, with no other committee Democrats joining with the amendment’s sponsors.
About five minutes later, the full bill, its functional test preserved, passed the committee. Even though her amendment had failed, Feinstein voted for the bill. Durbin, who is the Senate’s majority whip, did not.
The defeat of this amendment does not guarantee that a shield law will reach the books with a Von Bulow-like test preserved. The House’s already-passed bill does include a financial test, requiring that the person practice journalism for “a substantial portion” of their “livelihood or for substantial financial gain.” If the Senate’s definition remains unchanged going forward, a conference committee will be forced to reconcile that difference.
But there’s no guarantee that the definition won’t change before any possible Senate passage—even before it reaches the full Senate floor. As Thursday’s Judiciary meeting wrapped up, Schumer approached Feinstein, saying “I do want to sit down with you and work this out.” And Senator Kyl—who, throughout the process, introduced amendments that would have weakened the bill—warned that “we have not heard the last of the controversy” about the bill’s definition of a journalist, perhaps hinting at a drive to introduce a Feinstein-like or even more restrictive amendment during debate on the full Senate floor.
Given the Senate’s jammed schedule, that debate could be some time away.
“Obviously health care is a huge operation, and we’re hearing that immigration might pop up again,” says Cope. “From our perspective, we’d like to get it to the floor by the spring.”
That leaves a couple of months for the coalition to brief senators who are less familiar with the bill, gird against damaging amendments, and prepare for a floor vote that has been years in coming.