An array of tin whistles

A look at whistleblower laws of recent decades

In 1978, Congress debated the Civil Service Reform Act extensively. It was a landmark, once-in-a-century effort. Naturally, there would be a lot of coverage. Deliberations in the Senate took 12 days, deliberations in the House took 13 days, and the House-Senate conference took place over at least 6 days, according to records recently discovered in the Library of Congress. Here are some of the mark-up sessions and other documents from those deliberations:

By contrast, research into the mark up of the Whistleblower Protection Act of 1989 revealed only one day’s worth of deliberations, and the Senate’s mark up of the Whistleblower Protection Enhancement Act of 2011/12 took only five minutes.

Contrast this give-and-take in 1978 over the role of the Special Counsel, as just one facet of law, versus the entirety of the discussion over the WPEA in the Senate, 33 years later.

June 1978:

Sen. Chiles offered that

My feeling is if you put a Special Counsel in and he is appointed by the President, you know, we are really having sort of two groups that are supposed to be doing the same thing, and that is protecting the workers. You have the Merit Board, and the Merit Board is a bipartisan board with staggered terms, and it is certainly supposed to be operating in the best interests and for the best results of protecting employees. And then you turn around and appoint a Special Counsel by the President, and then you get into the whole thing of how do you get rid of him. Is he for cause? Who can initiate?

He also raised the point that

If you have a Special Counsel, and I am concerned with what we did with the Special Prosecutor in this regard, we are starting to create individuals or posts with tremendous power but no accountability  You let the President nominate him, but then he can’t be removed except for cause. He is really sort of accountable to no one once he gets in that job.

Senator Jacob Javits (R-N.Y.) responded to Sen. Chiles’ concerns and said that

[A] Special Counsel appointed by the commission would not have the standing that a Special Counsel appointed by the President would. . . . I would hope that we could take a Presidential appointee subject to Senate confirmation, give him the necessary stature and then give him the necessary protection so then he is really acting as the independent prosecutor. . . [unintelligible] making him a Special Counsel is that we don’t necessarily want them to work together. We are a little bit concerned that the Merit Systems Protection Board may, like so many other boards, get impregnated with the views and the attitudes, et cetera, of the agency which it serves. Therefore, as a check and balance, especially for whistleblowers, we want to have somebody out there who can initiate a prosecution.

Sen. Chiles responded that

Now what happens, every time that we decide we can’t trust one group and so we are going to add another check, I think really what we do is we remove a little further from the people the ability to judge and assess responsibilities and to pinpoint that responsibility, and we diffuse it. But we also make it where government can’t work because they start working at loggerheads.

So I would rather have the responsibility be on the appointments of the Merit Protection Board, that board be confirmed by the Senate, make that board of some stature, make them responsible and allow them to appoint the Special Prosecutor or the Special Counsel, and have that chain of responsibility. I think when you start deviating from that, before long we are going to need somebody to check on the Special Counsel. Then we will have to give some independence to that person because we are afraid the Special Counsel, by virtue of his term or the fact he is only removed for cause — that is just looking at it philosophically.

October 2011:

Senator Joe Lieberman (I-Conn.): We’ll now go to the third item, and I think we can move pretty quickly here. The third item is the Whistleblower Protection Enhancement Act of 2011, introduced by Senator Akaka, co-sponsored by Senator Collins, myself, and several other senators, both on and off the committee.

This would restore and strengthen the Whistleblower Protection Act to protect federal employees who disclose information about government mismanagement and wrongdoing.

Senator Akaka, thank you for all the work you’ve done on this and I invite you to discuss the matter further and I know you have an amendment to it.

Senator Daniel Akaka (D-Hawaii): Thank you very much, Mr. Chairman, I’m pleased to join my good friends Senators Collins and Chairman Lieberman, really 14 of our colleagues who are sponsoring this bill to strengthen protection for federal employee whistleblowers.

Mr. Chairman, I do have an amendment I would like to offer, making minor changes to the bill: to clarify provisions on non-disclosure agreements, give GAO a little additional time to conduct its review of the legislation, and provide the Defense Department access to information and consultation rights in a couple of the intelligence provisions. This bill is first and foremost a good government measure. If federal whistleblowers are not protected from reprisal, as we know for reporting waste, fraud, abuse, and illegal activities, many will not take the risk and we’ll fail to protect taxpayers, public health and national security.

Congress strengthened the Whistleblower Protection Act in 1994 but the Merit Systems Protection Board and the Federal Circuit repeatedly interpreted the law in a way that is inconsistent with Congressional intent. So since 1994, federal whistleblowers have prevailed on the merits of their claims in the federal courts just 3 times in hundreds of cases, and that’s why this bill is necessary and I offer it again, Mr. Chairman.

Sen. Lieberman: Thanks very much Senator Akaka. Senator Collins, would you like to comment on the bill?

Senator Susan Collins (R-Maine): Thank you Mr. Chairman. In this Congress, Senator Akaka once again has led the efforts to strengthen our whistleblower protection laws and we’ve worked with a wide variety of members and stakeholders. We all know that whistleblowers play a crucial role in efforts to identify waste, fraud, and abuse. And that they help ensure the effectiveness of government programs.

We passed a similar bill last year by unanimous consent, but then the House stripped out some provisions related to the intelligence community employees. We’ve–since that time we’ve worked to achieve a consensus on how intelligence community personnel should be handled since obviously there were some legitimate issues there. And I think that this bill accomplishes that goal.

Sen. Lieberman: Thanks, Senator Collins. Further discussion? If not, first there is a substitute amendment, so we’ll ask that all in favor of Senator Akaka’s substitute amendment indicate by saying aye. [Chorus of ayes.] Those opposed, no. The amendment is adopted.

If there’s no further discussion, I move that we vote on the Whistleblower Protection Enhancement Act as amended. All in favor say aye. [Chorus of ayes.] Those opposed, no. The ayes have it and the measure is adopted. Thank you very much.

Transcript here and corresponding video here (beginning at 47:00).

Now, it’s not that the WPEA was any less controversial or thorny than the CSRA. It’s just that the deliberations were done behind closed doors, with lobbyists and staffers exchanging private memos, emails, and phone calls, away from public view. Contrasted with 1978, the people’s business in 2011-’12 was done in a secretive and cynical manner.

In fact, this is, or was, a point of contention between major whistleblower advocacy groups. On the one hand, there are the Government Accountability Project and the Project on Government Oversight, which apparently favor back-room deals and faux-deliberation before the public, to the detriment of whistleblowers. On the other hand, there is the National Whistleblowers Center, which objected to their methods.

The next issue on the agenda is expected to be reauthorization (and reform) of OSC and MSPB. It is hoped that the people’s business in 2013 will look more like the 1978 deliberations than the so-called deliberations of 2011-’12.

Photo by Gordon Wrigley released under a Creative Commons license.