If you looked to last night’s elections to send a clear message to President Donald Trump and congressional leaders to stop the anti-press rhetoric and reinvest in transparency and accountability in politics, you fell a little short, but it is clear that those who care about press freedom, transparency and accountability woke up to a rearranged political environment this morning. Here are a few initial thoughts about how things could shake out for freedom of the press and the free flow of information in the House of Representatives.
On FOIA issues, Rep. Elijah Cummings (D-Md.) is likely to become chairman of the House Oversight and Government Reform Committee in January. Cummings has been an active champion of strengthening FOIA and opposing carve-outs to disclosure that are routinely proposed in legislation. The Oversight committee has broad jurisdiction to delve into matters of its choosing and historically has conducted oversight of administrations when the opposing party controls the White House. Investigations may contribute more to the public’s understanding of Trump’s finances — Cummings could subpoena Trump’s tax returns — and the Committee may in some way seek to build a public record of dealings by this administration, from the spending and other scandals that plagued Trump’s first Environmental Protection Agency administrator Scott Pruitt to foreign government spending at Trump hotels.
The House Judiciary Committee has jurisdiction over the administration of the courts, a shield bill and anti-SLAPP legislation, so the likely ascension of Rep. Jarrold Nadler (D-NY) to the chairman position could give those legislative efforts a forum for advancing at least in the House. While the committee could do a lot for press freedom, it may be busy with other priorities, such as the independence of the Justice Department, the Mueller investigation and related issues. On the other hand, a shield bill, anti-SLAPP legislation or court transparency could provide low-hanging fruit for him to show commitment to bipartisanship. Nadler had expressed support for the shield bill in 2013.
The big, obvious question in all this is how big a role will bipartisanship play in the next two years? While Republicans and Democrats fight over bigger issues such as the economy, health care and immigration, will they work together to advance legislation that perhaps falls a bit under the radar? Proactive disclosure requirements, strengthened public protections against abusive lawsuits (anti-SLAPP), improve electronic court filing and access, and a media shield bill could advance on a bipartisan basis, but will it? Even if it does, would the president sign such legislation?
The result of the Mueller investigation could shift the dynamic considerably even as the administration makes the case that Republican loyalty to the president yields electoral benefits. We have to keep reasonable expectations given that advancing legislation through Congress is difficult even when one party controls both chambers and the White House, but doing so in divided government is challenging, to put it mildly.
Did voters send a clear, strong message that public officials need to actively promote American values, including press freedom and transparency, at home and abroad? Not really. Rep. Greg Gianforte, who, after bodyslamming Guardian reporter Ben Jacobs, agreed to apologize and donate to the Committee to Protect Journalists, was re-elected. Republicans may conclude from the results of the 2018 midterm elections that, true or not, they need to hook themselves to Trump’s coattails for success in 2020, in which case political costs to standing up to the president — even to call him out publicly for his rhetoric against the press — may continue to be high.
On the other hand, the president now has another foil in the Democratic-controlled House as he faces likely inquiries into the administration, his finances, and his family business dealings. He may turn his attention to attacking Democrats and shift his focus away from the news media, however he will have plenty of opportunities to continue his rhetorical attacks against the press — just today he railed against CNN’s Jim Acosta and other reporters yet again during his post-election press conference — and the president may conclude that his success campaigning to hold the Senate shows it works.