The Washington PostDemocracy Dies in Darkness

Mike Pence says he advocates for a free press. Here’s his shaky history with transparency.

Vice President Pence. (Michael Conroy/Associated Press)
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Speaking in front of Washington's top political journalists a few days ago, Vice President Pence said he is — and has always been — an advocate of a free and independent press.

He talked about his time as a radio commentator in the 1990s — a “Rush Limbaugh on decaf,” as he had been described. He also brought up his sponsorship of a federal shield law that would have protected reporters from having to testify or reveal their confidential sources.

Pence sponsored versions of the legislation a few times when he was in Congress. Although the Free Flow of Information Act never became law, Pence's advocacy for the news media earned him praise from journalists, including an award from a newspaper association.

But while Pence does have a track record of supporting a free press and the First Amendment, that record is tainted and his stance on the public's right to know has become muddled, critics say.

During his time as Indiana governor, for instance, Pence found himself rebuked by free speech and open-government advocates — once because of a widely criticized plan to create a taxpayer-funded news service, and again when his staff deleted Facebook comments that disagreed with his stance on same-sex marriage.

To this day, a Facebook page called Pencership exists.

The headline of an editorial by the South Bend Tribune in northern Indiana reads: “On issues of transparency, Pence isn't clear.”

Pence says he and Trump 'strongly support a free and independent press' (Video: Reuters)

But one can argue that Pence is remarkably different from his boss when it comes to treatment of the press, said Anthony Fargo, a media law professor at Indiana University.

“I don't believe that he shares President Trump's view that the media are the enemies of the people,” Fargo said. “I don't think he's ever been someone who'd view or think or believe that.”

But, he added, there have been “troubling issues.”

Hackers accessed a private email account Pence used for official business as Indiana governor

The most recent: news of Pence's use of his personal email account while conducting state business as governor. The Indianapolis Star first reported it last week, following a months-long effort to access emails from Pence's AOL account.

Marc Lotter, Pence's spokesman, rejected comparisons with Hillary Clinton's use of a private email server when she was secretary of state, saying that Pence did not communicate classified information and that his actions were “consistent with Indiana law.” The state's public access counselor, who provides advice concerning public records laws, has reached the same conclusion.

But the use of a personal email account, while not illegal, is hardly an encouraging sign of a transparent administration, said Fargo, the media law professor.

It also raised concerns about whether the public has access to all of Pence's state-related emails. More broadly, it shines a light on Indiana's murky rules for government officials' use of private emails, said Steve Key, executive director and general counsel for the Hoosier State Press Association.

Following the Star's story, Pence's attorneys delivered 13 boxes of state-related emails to the Indiana State House, the paper reported.

“That's not meaningful disclosure. It's after-the-fact disclosure in a form that's virtually impossible to search in a meaningful way,” said Gerry Lanosga, a journalism professor at Indiana University.

Pence's attorneys also have been embroiled in a nearly two-year-long legal battle to withhold a document that some say should be considered public record. Critics of the former governor said he's setting a dangerous precedent that would give the executive branch the power to decide what's public and what's not without much accountability.

The legal dispute is over an email attachment that Republican Texas Gov. Greg Abbott's chief of staff sent in 2014 to several officials in other states, urging them to join a federal lawsuit challenging President Barack Obama's executive order on immigration. Among the recipients was Pence's then-chief of staff, James Atterholt.

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Pence's attorneys argued that a judicial review of his decision not to disclose “constitute[s] intermeddling with the internal functions of the executive branch,” court records say. The Indiana Court of Appeals disagreed, saying in an opinion issued in January that the state's public records law “does not provide for any such absolute privilege.”

The appeals court, nevertheless, ruled in favor of Pence and decided the email attachment, which outlined legal theories supporting the lawsuit against Obama, is considered privileged attorney-client communication.

William Groth, a Democratic lawyer who requested emails concerning Indiana's decision to join the federal lawsuit against Obama and who later sued Pence, has asked the Indiana Supreme Court to review the case.

Lotter said the litigation over the attachment shouldn't be characterized as an email controversy.

“It's not a lawsuit about emails,” he said, adding that the emails Groth requested were released. “It was a lawsuit centering on the attachment.”

Key, of the Hoosier State Press Association, said that the controversies — including the firestorm over an ill-fated state-run news agency, JustIN, dubbed “Pravda on the Plains” by the Atlantic — shouldn't overshadow the steps Pence had taken in the name transparency.

He brought up a few examples, saying he thinks Pence “was and remains an advocate of the free press.”

In 2015, Pence vetoed a bill that would have allowed government agencies to charge a fee — up to $20 an hour — when employees have to spend more than two hours searching for records requested by reporters or members of the public.

“The cost of public records should never be a barrier to the public's right to know,” Pence said in a statement.

Last year, the governor vetoed a bill that would have limited public access to records of private university police departments that operate like their public counterparts. He called it “a disservice to the public and an unnecessary barrier to transparency.”

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Going back a few more years, Pence in 2011 defended journalists' role as a watchdog for government officials. At that time, he was a congressman co-sponsoring the Free Flow of Information Act for the fourth time.

“Compelling reporters to testify, and in particular, compelling them to reveal the identity of their confidential sources, is a detriment to the public interest,” Pence said in a statement. “Without the free flow of information from sources to reporters, the public is ill-equipped to make informed decisions.”

He further said: “As a conservative who believes in limited government, I know the only check on government power in real time is a free and independent press. The Free Flow of Information Act is not about protecting reporters; it is about protecting the public's right to know.”

Although Pence has had “run-ins” with advocates of a free press and open government, “his actions have always been favorable,” Key said.

What is now unclear for public access supporters is whether Pence will remain a free press advocate while working for a president who has repeatedly assailed the media and denounced negative stories about his administration as “FAKE NEWS.”

“He's in a situation now where he's not the guy in charge,” said Fargo, the media professor. “What would be fascinating is how much discussion he and the president had had behind the scenes about issues of transparency and the value of the free press.”


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