Legislative Update

Free Flow of Information Act Clears Committee
On Thursday, October 4, 2007, the U.S. Senate Judiciary Committee passed S.2035,  the Free Flow of Information Act, by a vote of 15 to 2. The Act seeks to protect the public's right to information through a free press. 

This bipartisan, compromise legislation is supported by Senators Lugar, Judiciary Committee Ranking Member Arlen Specter (R-PA), Charles Schumer (D-NY), Chris Dodd (D-CT), Judiciary Committee Chairman Patrick Leahy (D-VT), and Lindsey Graham (R-SC). The bill now awaits Senate floor action.

Introduced by Representatives Rick Boucher (D-VA) and Mike Pence (R-IN), the Free Flow of Information Act was approved by the House of Representatives on October 16 by a strong bipartisan vote of 398-21.

“This legislation confirms America’s Constitutional commitment to press freedom and advances our foreign policy initiatives to promote and protect democracy,” Senator Lugar said.  “We must lead by example and the role of the media as a conduit between government and the citizens it serves cannot be devalued.”

“This committee bill makes some modifications to the earlier legislation introduced in the House by Congressman Mike Pence, and Senator Chris Dodd and myself in the Senate.  Bills are moving forward in both houses and I am grateful for the continued progress addressing this important issue,” Senator Lugar added.

The bill would set national standards that must be met before a federal entity may issue a subpoena to a member of the news media in any federal criminal or civil case. It would set out certain tests that civil litigants or prosecutors must meet before they can force a journalist to turn over information. For example, litigants or prosecutors must show, that they have tried unsuccessfully to get the information in other ways and that the information is essential to the case. These standards were based on Justice Department guidelines and common law standards.

Additional protections are included to ensure that information will be disclosed in cases where it is needed to prevent a terrorist attack, significant harm to our national security, death, kidnapping, or substantial bodily harm. Journalists who witness crimes also cannot refuse to share their eyewitness observations.

By providing the courts with a framework for compelled disclosure, the legislation would promote greater transparency of government, maintain the ability of the courts to operate effectively and protect whistleblowers who identify government or corporate misdeeds.

Express Lane Eligibility in SCHIP
Senator Lugar sent the following letter to his Senate Republican colleagues on Wednesday, October 31, 2007, to address misconceptions regarding the Express Lane eligibility option in the SCHIP bill.

SCHIP, or the State Children’s Health Insurance Program, was created by Congress in 1997 to provide health coverage to low-income children.  Lugar has been a long-time supporter of legislation to expand health coverage for children and in 1999 authored legislation which allowed schools and school districts to share school lunch program information with state health insurance agencies for outreach and enrollment activities.  He has continued to cosponsor bills, which seek to increase health coverage among uninsured, low-income children. 

“I am writing to correct some misconceptions regarding the Express Lane eligibility option in the SCHIP bill.

“More than 70% of low-income, uninsured children are in families that are already enrolled in the Food Stamp program, the Women with Infants and Children (WIC) program, or the National School Lunch Program (NSLP). The idea of Express Lane is to give states the flexibility to find a child income-eligible for Medicaid or SCHIP based on the fact that they have already been found eligible for nutrition assistance or other comparable programs that operate under similar financial guidelines. Express Lane was included in then-Majority Leader Frist’s child health bill during the previous Congress, which the Administration supported.

“Express Lane is targeted at the very poorest uninsured and eligible children who have been the hardest to reach through other methods. For example, in my own state of Indiana there are approximately 70,000 children currently enrolled in Indiana's SCHIP program, yet approximately 39,000 children are eligible but not enrolled. 

“The Administration has voiced concern that Express Lane eligibility would allow illegal immigrants into the program. Express Lane eligibility does not change eligibility standards for Medicaid or SCHIP and thus undocumented immigrants would remain barred from coverage. Express Lane simply allows states to use relevant eligibility data from other programs. If states were using data from a program that did not have a citizenship determination, the state would need to find independent documentation of citizenship or satisfactory immigration status, using normal Medicaid/SCHIP procedures. The Express Lane language is explicit in requiring citizenship documentation. 
           
“Furthermore, it is important to note that the compromise agreement for the first time requires explicit determination of citizenship status for SCHIP rather than self-declaration. Therefore, the citizenship provisions of the bill are now more stringent than current law. 

“There is also a concern that the Express Lane language would allow families of higher income levels into the SCHIP program. It is important to note that the income thresholds of almost all other need-based programs are substantially lower than SCHIP eligibility levels, so it is highly unlikely that any otherwise ineligible children would receive health coverage. For example, programs like WIC and School Lunch go up to 185% FPL, calculated based on gross income. In most states, SCHIP extends to 200% FPL, subtracting from gross income such things as child support payments, certain work expenses, etc.

“However, the Administration has implied that because other programs -- such as School Lunch -- have differing standards of income eligibility, they are vulnerable to fraud and abuse, and therefore SCHIP would be in jeopardy of signing up ineligible children.  Individuals participating in the School Lunch program are subject to income verification and/or audits.  Those who intentionally attempt to defraud the program become ineligible and punitive actions could be considered.  If the Administration is suggesting that there are problems administering their own programs, we would be happy to work with them on this.

“In the meantime, it is important to note that the Express Lane provision requires CMS and states to audit children who receive Express Lane eligibility and to report the results. If 3% or more of Express Lane children are ineligible for health coverage, corrective action plans are required, and federal sanctions apply to funding for children in the sample.

“Also worth noting, when Express Lane eligibility has been used for the School Lunch program and for WIC, program integrity improved and administrative costs fell, according to research by USDA and the GAO.

“In my view, the Express Lane provision in the SCHIP bill meets the important Republican priorities of a) targeting SCHIP coverage to eligible but un-enrolled children under 200% of poverty, and b) increasing efficiency and reducing red tape. “