On Tuesday afternoon, December 17, by unanimous consent the Senate approved S. 274, legislation to restore and strengthen the Whistleblower Protection Act (WPA) for federal government workers. That good government law has been gutted and discredited by 13 years of hostile court rulings, which made it nearly impossible to qualify for protection under the law. S. 274 also plugs a government accountability loophole created last year when the Supreme Court’s Garcetti v. Ceballos decision canceled constitutional free speech rights for government workers carrying out their job duties. The Senate action follows House approval of similar legislation, setting the stage for the two chambers to reconcile their legislation and present a composite bill for final approval. President Bush already has promised to veto stronger whistleblower rights, but an overwhelming veto-proof majority in the House and unanimous consent approval in the Senate indicate that Congress would likely be able to over-ride a presidential veto.

The Senate has given a Christmas present to the taxpayers. This was possible because of a marathon commitment to public service by key Senate offices. Now Congress must act promptly to convene a conference committee and get this reform in the law books, so it can start making a difference. Until then government employees are virtually defenseless when harassed for defend ingthe public against fraud, waste and abuse. From October 1994-October 2007, whistleblowers had a 2-183 record at the Federal Circuit with a monopoly on appellate review of WPA cases for decisions on the merits.

The WPA reform was first introduced in 2000, but has been struggling for eight years to achieve this year’s House and Senate approvals. Senators Daniel Akaka (D-HI), with Chairman Joseph Lieberman (I-CT) and Ranking Member Susan Collins (R-ME), have led Senate Homeland Security and Governmental Affairs Committee efforts to pass the “Federal Employee Protection of Disclosures Act.â€? Senators Charles Grassley (R-IA), Carl Levin (D-MI) and Richard Durbin (D-IL) also were key pioneer sponsors. In 2004 and 2005 the bill passed committee, only to be blocked from Senate votes by procedural holds. Last year Senators Levin and John Warner (R-VA) obtained its Senate approval as part of the Defense Authorization funding bill, but it was killed in conference committee.

The legislation has four cornerstones: 1) restoring the 1994 high water mark of government employee free speech rights on paper, the strongest in history when enacted; 2) restoring normal appellate judicial review by ending the monopoly of the Federal Circuit Court of Appeals that since its 1982 creation has rubber-stamped retaliation and gutted every version of federal whistleblower through hostile judicial activism; 3) plugging the “security clearance loophole” in whistleblower law that has meant national security employees have no due process rights and routinely are functionally fired and blacklisted as disloyal when they challenge security breaches; and 4) creating enforceable rights against gag orders, including those that bar government workers from classified whistleblowing disclosures to Congress.

Specifically, the legislation would:

• Codify the legislative history for “anyâ€? protected disclosure, meaning the WPA applies to all lawful communication of misconduct. This restores “no loopholesâ€? protection and cancels the effect of decision like Garcetti v. Ceballos on federal workers.

• Restore the unqualified, original “reasonable beliefâ€? standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.

• Make permanent and provide a remedy for the anti-gag statute – a rider in the Treasury Postal Appropriations bill for the past 17 years – that bans illegal agency gag orders. The anti-gag statute neutralizes hybrid secrecy categories like “classifiable,â€? “sensitive but unclassified,â€? “sensitive security informationâ€? and other new labels that lock in prior restraint secrecy status, enforced by threat of criminal prosecution for unclassified whistleblowing disclosures by national security whistleblowers.

• Codify protection against retaliatory investigations, giving whistleblowers a chance to end reprisals in their early stages.

• Bar the President from imposing ex post facto “intelligence employeeâ€? status to strip employees of their merit system rights after they assert them by filing a lawsuit.

• End the Federal Circuit Court of Appeals monopoly on appellate review of the Whistleblower Protection Act (the Court has single-handedly gutted the WPA, leading to a 2-183 record against whistleblowers from October 1994 to October 2007), restoring all-Circuit judicial review, as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act.

• Restore independent due process review of security clearance determinations for whistleblower reprisal, unavailable since a 1985 Supreme Court decision.

• Provide specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff.

• Strengthen the Office of Special Counsel’s authority to seek disciplinary sanctions against managers who retaliate.

• Authorize the Special Counsel to file friend of the court briefs.

S. 274 does not contain five critical reforms passed in March by the U.S. House of Representatives in H.R. 985, co-sponsored by Chairman Henry Waxman (D-CA) and Rep. Todd Platts (R-PA). The House-passed reforms include protection for national security whistleblowers at the FBI and intelligence agencies, protection for government contractors, protection for federal baggage screeners, jury trials for a fair day in court, and reinforced protections for federally-funded scientists. The House passed H.R. 985 by a 331-94 vote, a veto-proof majority, despite a threat to veto the legislation issued by the Bush administration the day prior to the vote.

Whistleblower advocates are optimistic the Senate will defer to those House provisions, because it has been passing similar laws for corporate employees. Jury trials are the cornerstone of Congress’ Sarbanes-Oxley reform for corporate workers, and were approved in 2005’s Energy Policy Act for employees at the DOE and NRC. In August, Congress approved jury trials to enforce whistleblower rights for all government and corporate ground transportation workers as part of the 9/11 law. This month Congress also approved jury trial whistleblower rights for Defense Department contractor employees in an amendment to the FY2008 defense authorization bill sponsored by Senator Claire McCaskill (D-MO), who is also a member of the Governmental Affairs Committee, and Senator Collins. In December Homeland Security Senators Mark Pryor (D.-Ark) and McCaskill persuaded the Senate Commerce Committee to approve jury trials for all corporate workers employed by producers for some 15,000 retail products regulated by the Consumer Product Safety Commission.

It is easy to be cynical about the lack of achievements in a partisan, polarized Congress. But on whistleblower rights for federal workers, both the House and Senate are turning on the lights after seven years of the bureaucratic Dark Ages.

Government Accountability Project Legal Direct Tom Devine and Legislative Director Adam Miles are the authors of this post.

This entry was posted on Wednesday, December 19th, 2007 at 1:00 pm and is filed under Politics .