Free Flow of Information Act of 2007--Motion to Proceed

Floor Speech

FREE FLOW OF INFORMATION ACT OF 2007--MOTION TO PROCEED -- (Senate - July 30, 2008)

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Mr. SCHUMER. Mr. President, I rise to speak in support of S. 2035, the Free Flow of Information Act.

This legislation is truly a product of bipartisan effort during this Congress. Senator Specter and I have worked closely together to craft a careful bill that protects both the freedom of the press and the safety of our citizens.

In a free and democratic country, we should be able to do both, and this bill does.

Other Senators--including Senators LUGAR, DODD, and GRAHAM--have been instrumental in moving the bill to this point, and I wanted to thank our chair, Senator Leahy, for being not only a sponsor of the bill but somebody who helped bring it to the floor.

S. 2035--a product of lengthy compromise and negotiation--is ripe for passage. In fact, it is long overdue.

There is now overwhelming support for a Federal law that gives a qualified--I repeat, qualified--privilege to allow journalists to honor promises of confidentiality to their sources unless a judge finds that compelling disclosure better serves the public interest.

How widespread is support for this legislation?

The presumptive Democratic Presidential nominee, BARACK OBAMA, supports this bill. The presumptive Republican nominee, JOHN MCCAIN, supports this bill. Forty-two State attorneys general--both Democratic and Republican--support this bill. The Senate Judiciary Committee, as evidenced by a vote of 15 to 4, supports this bill. The House of Representatives, as evidenced by a vote of 398 to 21, supports a similar bill. And, of course, over 100 newspaper editorials support this bill.

Conservative voices, such as former Solicitor General Ted Olson and the editorial page of the Washington Times, support this bill, as well as the Washington Post. So it does have broad support.

Given some of the ill-founded handwringing by the current administration over this bill, it is worth listening to what former Justice officials such as Mr. Olson say. Here is what Ted Olson recently wrote:

A free society depends on access to information and on a free and robust press willing to dig out the truth. This requires some ability to deal from time to time with sources who require the capacity to speak freely but anonymously. ..... [The Free Flow of Information Act] is well balanced and long overdue, and it should be enacted.

That is Ted Olson, so it is surprising the administration is opposed to the bill. There is similar support from both liberal and conservative sides.

Here is how the conservative Washington Times put it:

A sound shield law guards not ``the media'' but something much more vital--the public's right to know ..... A measured law would not shield sources who perpetrate demonstrable and articulable harm to the country's national security interests. But it would rightly shield most others. Such a bill awaits Senate action now. It should be passed.

That is from an editorial of July 25, 2008.

Unfortunately, given the broad and bipartisan support of this legislation, a minority of critics have taken to attacks that are overwrought and overstated.

Every criticism is either wrong or is effectively addressed in the substitute bill, which I spoke about last night on the floor and is in the Record as of last night, so my colleagues can see it. Senator Specter and Senator Lugar and I have worked to meet every one of these objections.

Fundamentally, critics have suggested the bill would represent a radical change in the law. Nothing is further from the truth. It even tracks this Justice Department's own guidelines. All we are saying is that given recent events and Government actions, a judge should be the final arbiter when it comes to subpoenas to journalists for sensitive information.

It is not an absolute law. It doesn't say ``never.'' It doesn't say ``always.'' Some on the press side wanted ``always.'' Some on the administration side wanted ``never.'' It is a careful, balancing test. Moreover, a majority of Federal circuits now recognize some privileges for journalists in, of course, 49 States, plus the District of Columbia recognizes those protections.

However, because of some of the recent comments about the bill, Senator Specter and I have undertaken to address a series of other concerns, and should we move to proceed, the substitute measure will be on the floor. I outlined last night on the floor the changes that I think meet the concerns of the critics in two places in particular: one, making sure classified information does not get out and is protected, and, two, the definition of who is a journalist so we make sure that those who just casually criticize or whatever do not get the protection, as would professional journalists.

So the text of the substitute is here, and I hope my colleagues--I hope we will move to this. I know we have disputes on other issues, but this is the Senate working: broad, bipartisan, carefully thought out legislation that can move forward with an overwhelming vote. I hope we will move forward today.

On the other bill coming before us, the extenders bill, just one point before I yield the floor.

If you care about reducing gasoline prices, the bill on the floor today, with tax incentives for alternative energy, will do far more than any amount of drilling to free our dependence on foreign oil and to reduce prices. I hope my colleagues will support that bill as well.

Mr. President, I yield the floor.

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