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A New Golden Age for Whistleblowers

by Tom Devine and Adam Miles

Congress is about to get serious about attacking government corruption sustained by secrecy and enforced by fear. Before Christmas, the Senate unanimously joined the House to approve legislation reviving the moribund Whistleblower Protection Act. The House and Senate versions need to be speedily reconciled and enacted. This would give federal employees genuine legal rights as honest public servants. Now they often face the daunting choice of acting conscientiously, risking their career and livelihood, or toeing the bureaucratic line and turning a blind eye to waste, fraud and abuse. The public will be the real winner when the reconciled bill becomes law. This is why the reform is nicknamed the "Taxpayer Protection Act."

Whistleblowers use freedom of speech to challenge abuses of power that betray the public trust. They change the course of history by refusing to sacrifice their own principles, unwilling to go along with corrupt practices. By exercising their freedom to warn, they prevent avoidable disasters before all that is left is damage control.

Consider examples of how they have made a difference for America's families. Disclosures by David Graham, a Food and Drug Administration scientist, forced market withdrawal of the painkiller Vioxx, which caused over 40,000 fatal U.S. heart attacks after our government officially labeled it safe. Climate-change whistleblowers, like Rick Piltz at the White House and James Hansen of the National Aeronautics and Space Administration, exposed how gags, censorship and oil-industry collusion turned some $2 billion of climate-change research into anti-scientific propaganda and delayed urgently needed action. The Marines' Franz Gayl demonstrated that hundreds of American combat fatalities in Iraq might be traceable to Pentagon mismanagement, which unnecessarily delayed delivery of mine-explosion-resistant armored vehicles.

The consequences of gagging federal workers are clear. Actuary Richard Foster was threatened with termination if he exposed the Medicare prescription-drug bill's true price tag. Congress ended up passing a law (by one vote) that cost $200 billion above its stated price. Whistleblowers protect the federal Treasury. Since public citizens were empowered to file whistleblower lawsuits on behalf of taxpayers in 1985, they have increased the government's civil fraud recovery 120-fold, from $26 million to $3.14 billion last year.

The voting public understands the value of whistleblowers. A Democracy Corps survey last February found 79 percent of voters are more likely to support a Congress that passes "a strong whistleblower law to protect government employees from retribution if they report waste or corruption." This was second only to stopping illegal government spending.

The Pentagon's Ernest Fitzgerald called whistleblowing "committing the truth," because you're treated like a criminal, and subjected to public humiliation, isolation, stripped duties, termination and criminal investigation. In theory, harassment is illegal under the Whistleblower Protection Act, which, after unanimous 1989 and 1994 votes, was powerful free-speech law - on paper. But hostile judicial activism has made it a trap that rubberstamps almost whatever retaliation is challenged. Through last October, the special court with monopoly power over the law ruled against whistleblowers in 183 out of 185 decisions on the merits.

Tragically, the WPA's toothlessness is a primary reason federal workers remain silent observers after witnessing government lawlessness or waste. The last straw was a 2006 Supreme Court decision, Garcetti v. Ceballos, stripping public employees of protection for speaking out about wrongdoing while doing their job - when it matters most.

The revived WPA has four cornerstones:

• Restoring the original WPA rights to federal employees.

• Protecting government contractors, law-enforcement and national-security-intelligence agency employees against all forms of reprisal, including loss of security clearance.

• Providing whistleblowers normal access to court, including jury trials.

• Empowering Congress to receive national-security disclosures, ending the corrupt tradition of sealing a cover-up by classifying it. Every presidential candidate endorses this ethics reform. Unfortunately, President Bush has threatened four times to veto it.

Congress needs to promptly finish what it started and stand up to the president. Supreme Court Justice Louis Brandeis's insight over a century ago retains its wisdom today: "If corruption is a social disease, sunlight is the best disinfectant."

Tom Devine is legal director and Adam Miles is legislative representative for the Government Accountability Project.

© 2008, The Providence Journal Co.

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