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OpEdNews Op Eds    H4'ed 12/29/10

Whistleblower Protections Halted by Tyranny of One

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Shanna Devine is the Legislative Campaign Coordinator at GAP [the Government Accountability Project]. Welcome to OpEdNews, Shanna. The Whistleblower Protection Enhancement Act failed to pass in the lame duck House session just concluded. Boy, that's disappointing: to you, the crew, who worked your tails off to get this passed, and to all of us who are worse off without the legislation. Take a minute, Shanna, and break this down for us. Why is whistleblower protection important in the first place? Why is S. 372's defeat so bad all around, regardless of one's politics?

photo credit: GAP

Whistleblower protection is a cornerstone of our nation's security, because whistleblowers are the eyes and ears to abuses of power that betray the public trust. If they are not empowered to disclose wrongdoing, the pubic at large remains vulnerable to unchecked abuses of power, gross mismanagement, waste, fraud, and public safety threats. Often whistleblowers do come forward, at great personal cost, because they feel the stakes are too great to remain silent observers. Take for example sweetheart contracts that have interfered with the shipment of lifesaving military equipment, to contaminated beef used for children's fast food burgers, to illegal domestic surveillance under the guise of national security, without whistleblowers the public would remain unaware and vulnerable to these types of abuses that affect our daily lives. Public safety and taxpayer protection are bipartisan issues, which is why this reform has champions across the ideological spectrum; from Goldwater republicans to liberal democrats, everyone except the wrongdoer sees the benefits of strong whistleblower rights.

S. 372 would have strengthened protections so that federal whistleblowers would have a fighting chance to defend themselves against retaliation. Unfortunately current law, the Whistleblower Protection Act (WPA), remains a would-be whistleblowers best excuse to turn a blind eye to government abuse. The law has been gutted over the years through judicial activism to eliminate coverage under the most frequent scenarios: Currently, you are not eligible for federal whistleblower protection if : you are not the first person who discloses given misconduct; you make a disclosure to your co-worker; you make a disclosure to your supervisor; you disclose the consequences of a policy decision; and the kicker: if you blow the whistle while carrying out your job duties.

S. 372 would have overhauled these judicially created loopholes, so that the law can protect federal whistleblowers as intended. It also would have
  • Offered Title 5 employees access to jury trials to challenge major disciplinary actions (for the first time in history)
  • Ended the Federal Circuit Court of Appeals monopoly on appellate review
  • Expanded whistleblower protection coverage to 40,000 TSA baggage screeners
  • Created protections for scientific freedom
  • Codified and provided a remedy for the anti-gag statute
  • Barred a Patriot Act hybrid secrecy category that overrides federal whistleblower rights
  • Protect more than just the "first person" who discloses given misconduct
  • Barred Critical Infrastructure Information -- a hybrid secrecy category created by the Patriot Act -- from overriding WPA free speech rights.
  • Provided government contractors the right to make classified whistleblowing disclosures to Congress
  • Provided the Office of Special Counsel with authority to file friend of the court briefs in court to support employees appealing MSPB rulings
This system of secret holds - has it always been around or are we just hearing about it more now? It seems so cowardly to outwardly support a bill [that has garnered virtually universal bipartisan support over the years] and then stab it in the back like that. Is there any defense against such a sneaky strategy?

We did not see the use of anonymous holds until the second half of Bush's presidency, beginning in 2004. It is a procedure unique to the Senate, and indeed a cowardly way to kill legislation. Senators McCaskill (D-MO) and Grassley (R-IA), two loyal champions of whistleblower rights, introduced a bill in the 111th congress that would eliminate the option for secret holds. If I recall correctly, their bill was killed in the backrooms by the very tool it intended on overturning " a secret hold. Another dangerous and shameless tactic is use of the "revolving hold." Because an office can only hold a bill anonymously for a certain number of days, it can coordinate with another office to place a secret hold right as it's hold is lifted, as so forth. This procedure was used to kill the Whistleblower Protection Enhancement Act in the 110th Congress. I cannot think of any defense for the use of secret holds. Often an office will put an "informational hold" on a bill if it has a question about substance, etc, but that does not require withholding its identity. No office wants to be held responsible for killing the Whistleblower Protection bill, but the fact that S. 372 has fallen victim to this spineless strategy once again is indicative of its strength. As long as secret holds exist, there will always be a call that can be made, a favor, an exchange, a deal brokered in the final hours to kill strong legislation without being held accountable.

Explain, please, how Wikileaks derailed the bill. Do you really believe, if not for Wikileaks, the bill would have passed? How was it counterproductive to defeat this bill? You understand all the ins and outs of this, but many of our readers do not.

I wouldn't say that Wikileaks derailed the bill. Rather, a few influential Republican offices in the House exploited the recent Wikileaks activity as an opportunity to run a disinformation campaign about the legislation. It was pure fear mongering based on an absolute fabrication of the facts, and it turned a historically bipartisan, pro national security measure into a partisan debate. Because there was no basis for the Wikileaks argument, I believe that the offices opposing the legislation's national security provisions would have found another way to garner sufficient Republican opposition for S. 372, as passed in the Senate with protections for national security whistleblowers. One of their mantras was that there was no need to rush passage in the lame duck, that whistleblower reform could be taken up in the 112th congress when Republican leadership had more time to review the bill. That argument carried little weight, however, because the House had already held hearings on the Whistleblower Protection Enhancement Act, passed it with overwhelming bipartisan support in two previous Congresses, and attached it to the stimulus bill earlier this Congress. Regardless, opposing offices were only willing to move the legislation forward without national security protections, and they knew that move would require a second, very risky Senate vote.

Where to begin with how counterproductive it was to defeat this bill. The opportunity to kill this legislation was created because select Republican offices insisted on the removal of national security protections, so I must once again stress how counterproductive it was from a policy perspective to remove protections for whistleblowers on the frontlines of our nation's security. To debunk Rep. Hoekstra's claim that this reform would allegedly make it easier for whistleblowers to publicly disclose classified information, S. 372 actually created a foothold for whistleblowers to safely disclose national security concerns within their agencies and to appropriate congressional committees, including the House Intelligence Committee and Oversight and Government Reform Committee that Rep. Hoekstra and Rep. Issa sat on as ranking members. Now that Rep. Hoekstra is retiring and was defeated in his race for governor, I'll be curious to see if the revolving door syndrome kicks in.

Given the current debt and deficit, it was a huge blow to our economy to see S. 372 die in the Senate. Countless studies indicate that whistleblowers are the number one safeguard of taxpayer dollars. Each year, whistleblower lawsuits under the False Claims Act save taxpayers nearly one billion dollars. A recent PricewaterhouseCoopers study of corporations globally found that employee disclosures were responsible for detection of more fraud than auditors, internal compliance officers, wand law enforcement combined. This is one of the main reasons that S. 372 ultimately had unanimous support in both chambers with the exception on one secret senate office, because no politician could credibly campaign against waste, fraud and abuse without supporting the Whistleblower Protection Enhancement Act.

So, the bill that "no politician could credibly campaign against" was nevertheless defeated in a sneaky and underhanded fashion. Now what? Back to square one in the new session of Congress?

Given the unanimous support for this legislation in Congress' final days, with the exception of one mystery office, S. 372 is poised for passage in the opening of the 112th Congress. There was an overwhelming consensus for the vast majority of the legislation even before national security protections were removed in the House. Through a minor technical fix, GAP will work to address last minute concerns without discarding carefully crafted provisions or compromising the whole package.

The American public is fully behind this reform. It is time for Congress to catch up and protect those who protect taxpayer dollars and the public at large. It would be politically advantageous for the new Republican leadership to take this government accountability bill under its wings and finalize a twelve-year campaign to strengthen federal whistleblower protections.
Anything you'd like to add before we wrap this up?

This interview would be incomplete without expressing my gratitude to all of the committed whistleblowers and advocates (including staff at OpEd News!) that have gone beyond the call of duty to help advance this reform. Most organizations were eager to lend their name to this cause, and today more than 400 groups endorse enhanced federal whistleblower rights. It has been a privilege to coordinate support for legislation to better protect our courageous civil servants, and given the breadth of our campaign, I am confident that we will see our efforts bear fruit in the months to come.

Thanks so much for talking with me, Shanna. We will follow this bill's progress with great interest. Good luck to you!


GAP website

Whistleblower Urges Congress to Act Now! Wednesday, December 15, 2010 interview with Jim Murtagh, president of IAW [International Association of Whistleblowers]


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Joan Brunwasser is a co-founder of Citizens for Election Reform (CER) which since 2005 existed for the sole purpose of raising the public awareness of the critical need for election reform. Our goal: to restore fair, accurate, transparent, secure elections where votes are cast in private and counted in public. Because the problems with electronic (computerized) voting systems include a lack of (more...)

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