The Shield Bearer

How a conservative congressman from Indiana became journalism’s best ally in the fight to protect anonymous sources.

Representative Mike Pence, a fourth-term Republican, delivers his speech with the cadence of a southern minister. “Over and over the media tells us America is tired of the war. Yes, America is tired. It’s tired of what we’re being told about this war,” he says, his voice rising and his face tightening. “It’s tired of the incessant negativity. Tired of the constant coverage of every road-side bomb while excluding the mention of every courageous, brave, and productive act. . . .” The audience of several hundred prominent conservatives explodes with applause. “The media and the Democrats may be tired of this war,” Pence continues as he begins to pound the podium, “but America is not tired of this cause.”

Congressman Pence, a charismatic and influential conservative leader from Indiana, is the keynote speaker at the Ronald Reagan Banquet, a formal dinner on the second night of the three-day Conservative Political Action Conference at the Omni Shoreham Hotel in Washington. More than a dozen speakers, among them Ann Coulter, Representative James Sensenbrenner, Grover Norquist, and Oliver North, have spoken, and aside from the Democratic Party, nothing has been the subject of more criticism than the media. “Now I know there are a few here from the mainstream media and they’re probably surprised that we’re here in these record numbers,” said Mitt Romney in the opening lines of his afternoon speech. “ ‘Course they wrote our obituary last fall. . . . The truth is that their wishful-thinking reports of our demise have been greatly exaggerated. In fact, I predict that we’ll be around a lot longer than, say, the newspapers will be around.”

Conservatives these days are generally not considered champions of the national press, but a little more than two years ago, after reading an editorial in The New York Times about Judith Miller’s jailing and the need for a federal reporter’s privilege, Pence took it upon himself to champion the legislative effort for a federal media shield law, which would protect journalists from being forced to reveal confidential sources. Pence, a forty-seven-year-old lawyer and former talk-show host, may not like what he sees as “bad news bias” in the mainstream media, but he’s far more troubled by the “rising tide of cases where federal prosecutors have used the threat of jail time or outright jail time to coerce reporters to reveal confidential sources.” For the last two years, Pence has been the primary legislative force behind the shield-law effort, making it one of his signature issues. “Our founders did not put the freedom of the press in the First Amendment because they got good press—quite the opposite was true,” he says. For Pence, the shield law represents a good-government provision, one that would ultimately help citizens “make informed decisions” about their leadership.

Though Indiana has had a reporter’s privilege statute on the books since 1941, Pence admits he had been unfamiliar with the issue. After reading the Times editorial, he spent two months researching the topic. In late 2004, he and his staff reached out to members of the media and the legal community and began crafting a bill, which he and Representative Rick Boucher, a Virginia Democrat, introduced in the House in February 2005. And unlike previous attempts to pass a shield law, this one would have legs.

For the thirty years since Branzburg v. Hayes, the historic case in which the Supreme Court ruled that journalists were not exempt from grand jury subpoenas, a tacit pact between the federal government and the media, predicated on the First Amendment’s guarantee of a free press, had allowed the two to coexist in relative peace. But as Douglas McCollam noted in these pages last July, the comfortable “zone of ambiguity” between the government’s need to keep secrets and the media’s right to publish sensitive but important information is “being squeezed.” Over the past several years, reporters have been handed subpoenas with increasing frequency in spite of a set of Justice Department guidelines aimed at restricting media subpoenas that has been in place since the Watergate era. Nearly half of the approximately ninety-six federal subpoenas served on the press during the last fifteen years have been issued since 2004.

Under the department’s guidelines, federal prosecutors may subpoena the media only if the material or testimony they are requesting relates to published information (except under “exigent” circumstances) and is central to their case. Prosecutors must also exhaust all nonmedia sources before requesting the approval of the attorney general. But in cases involving special prosecutors and civil litigants, which have accounted for many subpoenas in recent years, the guidelines do not apply. Moreover, the department has begun to ignore its guidelines in standard federal cases. It’s “changed the ground rules,” says Sandy Baron, executive director of the Media Law Resource Center. “This is an administration that due to its lack of respect for the press and its role in society no longer reads the Justice Department guidelines in the same way as prior administrations.”

Pence’s decision to spearhead the federal shield-law effort at the end of 2004 coincided with a groundswell of support among press advocates for such an undertaking. Media organizations began to push the idea not only because of the rise in subpoenas, but also because of growing disparities in how federal courts interpreted the First Amendment. “First, you have the fact that the federal courts don’t have the same protection as afforded by the states in which they sit,” Baron explains, referring to the forty-nine states that recognize a reporter’s privilege either by statute or judicial precedent. “And then on top of that you have the differences between the protection afforded by different federal courts. So in a sense it’s like a lottery. That kind of gambling mentality is not the way to run a First Amendment railroad.”

While there had certainly been attempts to pass a federal shield law before Pence’s bill, the media’s consensus on the need for legislative action is new. Floyd Abrams, the veteran First Amendment attorney, says the press was initially opposed to a shield law because it believed the First Amendment offered sufficient protection. In addition, he says, journalists have never liked appealing to legislators for help. “It’s dangerous ideologically and practically,” Abrams explains. “Ideologically because we shouldn’t be asking them for favors and practically because God knows what they’ll do.” Many feared that a statute would lead to the licensing of reporters and thus imperil journalistic independence. Lucy Dalglish, the executive director of the Reporter’s Committee for Freedom of the Press, had until recently taken a skeptical view of anything less than an absolute media shield law. But these days, she and her organization, like others, would happily accept a qualified reporter’s privilege, in which a judge would weigh the public interest value of leaked information against law-enforcement concerns. “For thirty years, we were all kind of getting along,” says Dalglish. “And then, over the last several years, things have just gone to hell.”

After two failed bids for Congress and a brief stint as president of a think tank in Indiana, Pence began his career in broadcast journalism in 1992 as the host of a daily call-in radio show. “I was kind of Rush Limbaugh on decaf,” says Pence, whose soft voice and gentle demeanor suggest as much. “We talked about conservative values, but frankly the focus of the show was more the Indiana perspective. We were talking about Bobby Knight as often as we were talking about high taxes and big government.” By 1995, Pence also had his own TV program, a Sunday morning roundtable in the tradition of The McLaughlin Group. “I never was a journalist,” says Pence. “The closest I’ve ever gotten was being a commentator. And I know the difference. But I’ve been around people in newsrooms. And I just came to develop a very healthy appreciation for the work that journalists do, and the public good that a free and independent press represents.”

Pence likes to describe himself as “a Christian, a conservative, and a Republican, in that order.” He grew up in Columbus, Indiana, the son of Irish Catholic Democrats, and attended Hanover College, where he majored in history. In college, Pence discovered he had two callings, Reaganite conservatism and evangelical Christianity. Those twin causes, in addition to an almost obsessive devotion to his home state—his Washington office is a veritable shrine to Indiana—have been the defining factors of Pence’s politics. He favors “less government, less taxes, strong defense, and traditional values” and is a fierce opponent of abortion. His colleagues describe him as a decent man who doesn’t compromise his beliefs for political popularity; indeed, he refused to join his party in supporting either the No Child Left Behind Act or the Medicare prescription drug bill. During his career as a radio and television host, Pence developed a respect for differing social and political views. “Mike is very easygoing, not too combative—the way he is as a congressman,” says Todd Meyer, Pence’s former radio producer. “People really enjoyed talking to him—from both sides of the aisle.” As Pence frequently puts it, “I’m a conservative but I’m not in a bad mood about it.”

About a week after Pence introduced his bill, the Free Flow of Information Act, which was modeled on the Justice Department guidelines but also included an absolute protection for journalists and their confidential sources, he had his regular meeting with Senator Richard Lugar, a fellow Republican and Hoosier. “We were having breakfast, and he said to me, ‘Well, I noticed this bill you filed and I’m kind of interested in that,’ ” Pence recalls. “And he said, ‘Who’s carrying it in the Senate?’ And I said, ‘nobody.’ And to my total shock and delight he went to the floor of the Senate that afternoon and filed the bill and gave what I still think is the best speech that’s ever been given about the need for a media shield.” Lugar, then the chairman of the Senate Foreign Relations Committee, had long been interested in spreading democracy to developing countries, and in 2004 had shepherded a bill through Congress to increase State Department resources for promoting a free press internationally. In his floor speech that day, Lugar drew a direct parallel between his work for international press freedom and the need for a federal media shield law: “While we focus on those needs abroad,” he said, “we cannot let those basic freedoms erode at home.”

Sensenbrenner, then chairman of the House Judiciary Committee, which would be in charge of holding hearings on the bill, was not particularly enthusiastic about the issue and eventually told Pence that he’d prefer to see the Senate take the lead. So Pence and Lugar approached Arlen Specter, former chairman of the Senate Judiciary committee, who agreed to schedule a hearing. “When he was a prosecutor, he would have loved to have had all of the media’s sources,” says Courtney Boone, a Specter spokeswoman. “But there’s a certain level of understanding that you don’t go to the media and say, ‘Flip your source so that I can go prosecute a case’ when you have other tools at your disposal.”

Senator Specter convened the first Judiciary Committee hearing in July of 2005. By that point, Pence and his staff had been talking to the criminal division of the Justice Department for several months. They had anticipated some objections and wanted to incorporate the department’s suggestions into the bill to speed its passage through the Senate. Pence and Lugar submitted an amended bill two days before the hearing. Based on the Justice Department’s feedback, the legislation now included an exception to the reporter’s privilege for cases in which a source’s identity was “necessary to prevent imminent and actual harm to national security.”

Despite the early discussions and the resulting revisions, the Justice Department’s concerns about the bill would only multiply, and it would soon emerge as the primary opponent of a federal media shield law.
Both Lugar and Pence testified at the Senate Judiciary Committee hearing along with Senator Christopher Dodd, Matthew Cooper, Floyd Abrams, Norman Pearlstine, and William Safire, among others. The then deputy attorney general, James Comey, who was scheduled to appear, canceled at the last minute. But he submitted a statement in which he asserted that a reporter’s shield would impair law enforcement and was unnecessary in light of the Justice Department guidelines. In three subsequent hearings on the issue in 2005 and 2006, several Justice Department staff members appeared before the committee to object to the legislation. Among their primary concerns was the fact that the bill would shift the approval of subpoenas out of the executive branch and into the judiciary: under the proposed law, a federal judge would be charged with determining the necessity of a subpoena, balancing law-enforcement concerns against the public’s right to know.

The Justice Department testified that the judicial branch lacks the necessary expertise to make such decisions, particularly in the realm of national security. Floyd Abrams agrees, but only to a point: “The Justice Department does have more expertise, and judges know that,” he says. “So when they come in with a serious national security case or even a not-so-serious national security case, there’s an enormous judicial tendency to credit what they have to say.” As Abrams sees it, this is exactly the kind of situation in which the judiciary should be involved. Though Abrams understands the department’s objections, he believes that allowing it to authorize media subpoenas cedes “all power to the executive branch to make very important decisions with a great deal of impact not only on national security but civil liberties and the right of the public to know.”

In his testimony at the fourth hearing, on September 20, 2006, Deputy Attorney General Paul McNulty called the bill “a solution in search of a problem,” arguing that the department’s guidelines were sufficient. And he dismissed the notion that there had been a rise in the number of federal subpoenas. But as it turns out, the Justice Department, which had refused to release its figures until recently, counts only the number of federal cases in which media subpoenas are issued, not the subpoenas themselves. Moreover, it excludes federal subpoenas issued by special prosecutors, as well as those that do not specifically request source information. Using those narrow parameters, the Department of Justice is able to accurately claim that it has issued “fewer than twenty” source subpoenas since 1991. McNulty concluded his testimony by urging the committee not to support the bill. But the committee chairman wasn’t having any of it. “I disagree with you,” Specter told him, saying he believed the issue needed to be “addressed legislatively.”

Coincidentally, on the day after McNulty’s testimony, a federal judge sentenced San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams to jail for refusing to reveal the source of a leaked transcript of testimony by Jason Giambi and Barry Bonds, the major league ballplayers, on their relationship to the Bay Area Laboratory Cooperative (BALCO), which was under investigation for the distribution of illegal steroids. For many, the Chronicle subpoenas became what Sandy Baron calls “the poster child” for the Justice Department’s increasing willingness to subpoena the press. “Their guidelines permitted these Chronicle reporters to be threatened with jail,” Representative Boucher said in a phone interview. “And if you could allow that under the guidelines, I would have to question what the guidelines might prevent.”

In its initial filing to the district court, in keeping with its guidelines, the Justice Department asserted that it was issuing the subpoenas to the reporters “after exhausting all other investigative sources.” But given that the government had subpoenaed the Chronicle reporters at the very beginning of its leak investigation, Eve Burton, general counsel of the Hearst Corporation, moved to have those words struck. The U.S. attorney cooperated and promptly withdrew the phrase, essentially conceding his department’s disregard for its own guidelines. “Not only were there no exigent circumstances,” says Burton, “we were the first-stop shopping.”

Even Mark Corallo, who had served as the public affairs director of the Justice Department from 2002 until 2004, was disturbed. He filed an affidavit in support of the Chronicle’s move to quash the subpoenas. Corallo, who had been in charge of approving all media subpoenas, wrote that the Chronicle subpoenas did not meet the department’s criterion of exigent circumstances. And, he added, “I believe that the subpoenas would not have been issued under former Attorney General Ashcroft’s administration for the further reason that compelling the reporters to testify in this instance would have an incalculable chilling effect on the press, and would be a waste of government and taxpayer resources.”
On September 22, Pence, in response to the sentencing (stayed pending appeal) of the Chronicle reporters, issued a press release calling on Congress to pass a federal shield law to stop the imprisonment of journalists: “Once again, the sad image of American journalists behind bars is being projected to the world.” But despite Pence’s best efforts, substantial bipartisan support, and the endorsement of nearly 100 media organizations, the Free Flow of Information Act never came to a vote in the 109th Congress. Some lawmakers and media organizations say time simply ran out, while others blame Supreme Court nominations, Justice Department opposition, and partisan gridlock for the bill’s foundering.

The rise of the Democrats in the 110th Congress, however, has altered the legislative chemistry. Though he was unhappy to cede control to the opposition, Pence admits that his media shield bill is now more likely to pass. In January Representative John Conyers assumed control of the House Judiciary Committee and has promised to hold a hearing on a shield law in the near future. Conyers and his staff have been “significantly more aggressive,” says Pence.

The Chronicle subpoenas (as well as the culmination of the Libby trial) have added to the momentum and consensus on the part of the media for a federal shield law. After meeting with Fainaru-Wada and Williams in January, Pence and Boucher wrote a letter to Attorney General Gonzales the following month asking him to withdraw the subpoenas issued to the Chronicle reporters. “The attention that they have brought to the steroid crisis cannot be overstated,” wrote Pence and Boucher. “For their great contribution, Mr. Fainaru-Wada and Mr. Williams are now threatened with jail, and The San Francisco Chronicle faces a harsh monetary sanction—all of this in a case that does not involve a breach of national security or terrorism.” At least half a dozen additional members of Congress, including Chairman Conyers and House Speaker Nancy Pelosi, also wrote letters to the attorney general. And on February 15, the subpoenas were dropped after Troy Ellerman, a BALCO defense attorney, pleaded guilty to leaking the transcripts. Larry McCormack, a former employee of Ellerman, had offered to cooperate with the fbi and, in a wired conversation, got the lawyer to admit to the leak (for a detailed and gripping account of those events see “Balco’s Singing Cowboy” published in The Recorder, a Northern California legal publication, on March 14).

The free flow of information act is currently in the hands of Chairman Conyers and his staff in a preapproval process intended to speed its movement through the Judiciary committee. Though Pence and others refused to comment on the specifics of the bill, it will likely resemble the final Senate draft in the 109th, which offered reporters a qualified privilege. Such a bill would require a federal judge to approve a subpoena for confidential source information. It remains to be seen whether the bill will include a provision protecting reporters from subpoenas for nonconfidential sources and information. Another important element of the legislation will be how it defines a journalist. Both the House and the Senate bills in the last Congress protected bloggers provided they worked for a newsgathering organization.

Pence and Boucher are optimistic that they can get the bill through the House by the end of the spring and into a conference committee by the summer. “It’s been a couple years we’ve been into this, and I don’t think we’ve lost any of the umph behind it,” says Pence. He expects the bill to reach the White House this year. But he cautions, “Given this president’s commitment to national security, I would anticipate a veto.” He says that once the bill is further along in Congress, he will not hesitate to approach the president. Although both Pence and Boucher anticipate a veto-proof majority in the House, Senator Lugar declined to speculate on whether the Senate could override a veto.

In the meantime, Pence plans to continue discussing the shield law with the Department of Justice and fellow conservatives, some of whom he admits have given him a hard time for supporting the measure. “I’d occasionally have Republicans come up and go, ‘What are you doing some kind of a bill for reporters for?’ ” says Pence. “And I’d sit them down and say, ‘Look, here’s the deal,’ and I found that there was a great deal of openness to ‘Well, okay, we’re really talking about protecting the process.’ ”

Sitting in a navy-blue leather chair in his Capitol office, a picture of his wife and three children on the side table next to him, a rug of the Indiana state flag at his feet, Pence reflected on his party’s diminished status: “To the extent that we became the party of big government, the foundation of our governing majority crumbled. And then when Iraq started to go badly and then scandals emerged, I think those things were added on top of it.”

When asked whether witnessing such government malfeasance had influenced his support for a media shield law, Pence paused, choosing his words carefully. “The longer I’m in Congress, the more vigorously I believe in a free and independent press,” he said. “Concentrations of power should be subject to great scrutiny. I just think that it is imperative that we preserve the transparency of the American government. And the only way you can do that is by preserving a free and independent press.”

Bree Nordenson a former assistant editor of CJR.