111th Congress Ending with Unfinished FOI To-Do List

December 1, 2010

The open-government agenda made only a little progress in the session of Congress (the 111th) now waddling to a lame-duck close. Hope still remains for a few measures that would increase public access to government information — but it dwindles with every day that passes. First the good news.

LIBEL TOURISM. Congress passed and President Obama signed into law August 10 a "Libel Tourism" bill (HR 2765) that prevents enforcement in the U.S. of libel judgments rendered in countries like the UK where standards are inconsistent with First Amendment protections of the U.S. Constitution.

ACCESS TO TAX-FUNDED RESEARCH. Through agencies like the National Institutes of Health, taxpayers each year fund billions of dollars worth of essential research. A bill (HR 801) sponsored by House Judiciary Chairman John Conyers (D-MI) would have prevented the federal government from making public the articles produced by such research. Instead, they would have allowed the non-government journals where those articles are often published to copyright and charge for them. After objections from SEJ and other groups, the bill did not get out of committee and is expected to die.

CRUSH VIDEOS. The US Supreme Court on April 20, 2010, struck down a 1999 law aimed at outlawing "crush" videos showing cruelty to animals on the grounds that its overbroad language might have restricted legitimate documentaries or journalism showing, for example, legal hunting activities. SEJ was among the journalism groups signing a friend of the court brief urging the court to toss the law. The 111th Congress on November 19, 2010, enacted a new version of the law which is more narrowly drawn. SEJ has not taken a position on the new law.

Still not enacted, though, are several essential bills that are key to reporters' ability to do their jobs and to the public's right to know.

FEDERAL SHIELD LAW. The House has passed a bill that prevents federal prosecutors from compelling a journalist to reveal the identity of a confidential source, but a comparable bill (S 448) is still stuck short of the Senate floor. Some 36 states currently have some form of journalist's shield law, but there is no comparable federal protection. More than 70 journalism organizations, including the Society of Environmental Journalists, support the bill.

WHISTLEBLOWER PROTECTION. Whistleblowers inside the federal government have over the years been sources critical to journalists' stories about waste, fraud, corruption, and abuse. When whistleblowers fear retribution, a journalist's job is far harder. The whistleblower laws on the books have been largely gutted by the courts. Congressional efforts to bolster them have to date largely been a patchwork of appropriations riders. But a bill (S 372) to enact real and permanent federal whistleblower protections is still seen by advocates as having a fighting chance in the lame duck (Project on Government Oversight and Associated Press).

FASTER FOIA. The bill known as the "Faster FOIA Act of 2010" (S 3111) is comparatively modest in its impact. It would set up a commission to study ways to reduce delays in the procession of Freedom of Information Act requests. The Senate passed it May 5, 2010, but it is still stuck without action in the House Oversight Committee. SEJ is on record as supporting this bill.

TOXIC SUBSTANCES CONTROL ACT. TSCA (pronounced "Tosca"), as it is known, was intended when passed in 1976 to inform the public about the health and environmental effects of industrial chemicals — and to empower EPA to regulate them. It was rendered largely ineffective by the grandfathering of chemicals already in commerce and a court decision in 1991 setting an impossibly high burden of proof for EPA regulation. Its intention of informing the public of toxic threats was to a great degree neutralized by TSCA's laxity on trade secret claims ("States Push Congress, EPA To End Toxic Trade Secrets"). Bills introduced in the 111th Congress (HR 5820, S 3209) might have corrected some of these problems, but time seems to have run out. These bills would have done away with much of the industry-advocated secrecy about what chemicals people are being exposed to and what harm they might do to health. The forthcoming 112th Congress is expected to address TSCA reform, but it may craft legislation more to the chemical industry's liking. Previous story.

DARK MONEY IN POLITICS. After the Supreme Court's January 21, 2010, Citizens United decision, the amount of secret money spent by corporations, lobby groups, and potentially even foreign nations to influence US elections has skyrocketed. The House passed the "DISCLOSE Act" (HR 5175), which attempts to partly remedy the corrupting influence of secret money by forcing disclosure of some donors. But the bill is currently stuck in the Senate. Several open-government and good-government groups have urged Congress to enact it during the lame duck.

CONGRESSIONALLY MANDATED REPORTS. Congress directs the Executive Branch to produce all kinds of reports, but neither Congress nor the agencies always bother to make these reports available to the public. Rep. Steve Driehaus (D-OH) introduced a bill (HR 6026) that would require Congressionally mandated reports to be published. It is stuck in the House Oversight Committee, and seems unlikely to be enacted in this Congress.

ANTI-SLAPP PROTECTION. Economically powerful corporations and lobby groups often attempt to intimidate and silence their critics by filing meritless civil suits that burden critics with overwhelming legal costs. These are called "SLAPP" suits (Strategic Lawsuit Against Public Participation). Some states, such as California, have anti-SLAPP laws aimed at protecting ordinary citizens' rights to public discourse — and the laws accrue to the news media's benefit also (Dole SLAPP case). Rep. Steve Cohen (D-TN) introduced a bill (HR 4364) that would help protect citizens against frivolous SLAPP suits. It did not get out of the House Judiciary Committee. Cohen won reelection, so he could reintroduce the bill in the 112th Congress.