"Why does a financial services company from Texas care about a media shield bill in Washington?" It's a very good question, one posed by Bill McCartney, a senior vice president of the huge San Antonio–based company USAA, which specializes in automobile and property insurance. There he was at a January state Senate hearing in Olympia, testifying against a bill that would have protected journalists from having to disclose confidential sources and erected roadblocks for those wanting reporters' notebooks and other material used to gather news.
The Reporter Shield Bill
Senate summary (PDF)
Original House version (PDF)
Substitute Senate version (PDF)
USAA's high-profile appearance in the debate was one of the mysteries surrounding the demise of the bill, which failed to get a floor vote in the Senate during the waning days of the just-concluded 60-day session. The bill seemed to have everything going for it. State Attorney General Rob McKenna, a Republican star with a healthy respect for media, requested the bill and advocated strongly for it. He had an influential ally in King County Prosecutor Norm Maleng, also a Republican. Exposé-loving Democrats signed on, too, giving the bill an unusual degree of bipartisan support. It passed overwhelmingly in the House, 87-11.
Then the bill got to the Senate and ran into fierce opposition. "It's weird," says state Rep. Lynn Kessler, D–Hoquiam, a sponsor in the House. "All of a sudden, Cliff Webster was all over it." Webster is a high-powered lobbyist who had been hired, according to Kessler and others, by USAA. "It's like somebody came in and said, 'Stop this.'"
USAA's involvement alone didn't kill the shield bill, judging by interviews with key players in the debate. The lethal injection was a mix of some resentment of the media, perhaps a tad of partisanship by Democrats against the Republican attorney general, and a whole lot of nonpartisan disagreement by people arguing either that the bill went too far or that it didn't go far enough.
USAA, which had already helped kill a shield bill in Texas, amped up that debate. "It hurt," McKenna says, alluding to the company's local lobbyist. "He riled up members of both parties." Unfortunately, the real meaning of the USAA story got lost.
Company exec McCartney came to address legislators at the Senate hearing. He explained that USAA, with 180,000 clients locally, was dead set against the bill in light of a TV report about the company that aired in San Antonio two years ago. The report called attention to USAA's decision to outsource work to an Indian company, a decision that laid-off workers believed cost them their jobs but which McCartney said was incidental to the company's downsizing. When the reporter interviewed a company executive vice president, McCartney says, "she starting placing in front of him these proprietary, confidential documents. He immediately became flustered." He wanted to know how she got the documents. Eventually, USAA sued to find out.
USAA was particularly interested in retrieving several pages of a managerial training manual that had handwritten notes, which could potentially identify the leaker, according to Mark Cannan, the attorney representing the station, WOAI-TV. He said that the company claimed in court that the manual and other material had been stolen. That claim was later dismissed. By that time, however, a trial court judge had already ruled that the reporter must turn over the documents that could identify her source. The station appealed, but before the appeals court could rule, the source, who turned out to be a former employee, waived confidentiality.
What to make of the case? For McCartney, it serves as a warning about shield laws. Had one been in place in Texas, he doesn't believe USAA would have been able to identify the reporter's source. Which is precisely why the case serves, in fact, as a textbook example of the necessity of shield laws. As Cannan points out, "there was information in the public interest that would not have come to light" without a promise of confidentiality to a source. The reporter and her source were guarded only by case law that had been weakened over time. One judge ruled against WOAI and another might have.
Proponents of the shield bill in Washington would have done well to make this point, because one of their big problems was failure to present compelling examples of why the bill was needed. A leading opponent of the bill, Brian Weinstein, D–Mercer Island, argued that state case law here seemed to be working just fine. He noted that the attorney general had testified that no reporters in this state have been forced to disclose confidential sources. "If it's not broken, it doesn't need to be fixed," Weinstein says.
McKenna and others did, however, testify that reporters frequently have to fight courtroom battles over subpoenas for information related to both confidential sources and so-called "work product," like notebooks. While journalists have usually prevailed, the effort can cost in the tens of thousands of dollars. That is especially hard on small media outlets. Journalists are concerned that such requests are increasing in the wake of the Judith Miller affair, whereby a judge ordered The New York Times reporter jailed for her refusal to identify a source. David Boardman, managing editor of The Seattle Times, talks about "a scent of fresh meat" in the air that is attracting government officials to go after confidential sources, whereas before they didn't think it would be fruitful.
But the bill's proponents didn't make that argument forcibly enough to convince the senators who thought the legislation went too far. Of particular concern was the possibility that it could shield important information about a criminal case—though no one had a compelling example to offer in support of that, either—only far-fetched hypotheticals.
Meanwhile, the Western Washington Chapter of the Society of Professional Journalists (SPJ) was telling legislators that the bill was too weak. While the bill offered an absolute privilege for confidential sources, it stipulated a four-part test that would determine whether a journalist's work product had to be turned over. SPJ wanted something close to an absolute privilege for work product, too. The organization rallied some support in the Senate, including Majority Leader Lisa Brown, D-Spokane, according to Olympia insiders.
But Brown decided that there wasn't time to resolve differences, given the short session. Bill sponsor Sen. Adam Kline, D-Seattle, was annoyed. "I can't tell you how embarrassed I am by that argument," he says, noting that the Legislature was finishing the session earlier than expected. Kline and McKenna thought they had the necessary votes. Other legislators counted differently. Kline and McKenna both indicate that they will bring the bill back next year. Why not invite the company from Texas back, too? Only this time, maybe legislators will come armed with a few pointed questions.