Rep. Rick Boucher (D-Va.), co-sponsor of a federal-shield-law bill (H.R. 2102, the Free Flow of Information Act), said it would pass the full House later Tuesday, but that doesn't mean it will make it into law.
In House debate on the bill leading up to the Tuesday-afternoon vote, Rep. Lamar Smith (R-Texas) said he had been in contact with the White House and that senior advisers would ask the president to veto the bill if it passed both the House and Senate in its current form.
Smith said both the White House and Justice Department continue to strongly oppose the bill. That comes despite last-minute changes made to address administration concerns about tracking down terrorists. A similar bill passed in the Senate Judiciary Committee but has not gotten floor time.
The shield law would grant a qualified privilege to reporters to prevent them from being compelled to testify or to give up confidential sources to federal investigators. But there are a number of exceptions, including for national security, imminent danger of bodily harm and some categories of private business and medical information.
Co-sponsors Boucher and Republican Mike Pence of Indiana agreed to broaden the bill's exceptions to include news organizations backed by terrorists or controlled by foreign governments and to add certain unauthorized leaks of properly classified national-security secrets.
But all of those exceptions would have to pass a balancing test before a judge, who would be required to decide whether the public interest in compelling the information outweighed the interest in journalists collecting and disseminating it.
But even with those additional protections, which had been requested by the DOJ, the bill did not pass muster with the administration. Smith read a note from White House advisors who said the bill made it too tough for federal prosecutors to do their job.
One of their objections was that while the bill makes exceptions for eminent threats, like a future terrorist act, it does not allow the DOJ to compel disclosure about past terrorist acts or any of a host of other transgressions from online pornography to drug trafficking.
Having to make a case to a judge for compelling disclosure would require the DOJ to hold a mini-trial before completing an investigation, the White House also argued.
House passage is further than any of the dozens of federal shield law bills introduced over the past couple of decades have gotten.
A letter from the office of the director of national intelligence joined the DOJ and the White House in opposing the bill, pointing also to the fact that the bill allows disclosure only to prevent future acts, not to identify the perpetrators of past crimes.
Rep. John Conyers (D-Mich.) pointed out that one of the last-minute changes to the bill would expand the caveat for terrorist-tracking to allow compelling disclosure not just to prevent future terrorist acts, but to identify perpetrators of past terrorist acts.