WASHINGTON - June 23 - The Senate yesterday acted quickly to plug a government accountability loophole created less than one month ago, when the Supreme Court’s Garcetti v. Ceballos decision canceled constitutional free speech rights for government workers carrying out their job duties. Senate bill S. 494, which includes that reform amidst a general overhaul of the Whistleblower Protection Act, was agreed to by unanimous consent as an amendment to the 2007 National Defense Authorization Act, passed 96-0 last evening. For the last three Congresses, the Senate Homeland Security and Governmental Affairs Committee (HSGAC) approved similar legislation, but until yesterday Senate leaders had refused to permit a floor vote.
The House version of the defense bill does not address whistleblower rights, although the House Government Reform Committee has passed an even broader-ranging version of the Senate reform, with two bills (HR 1317 and HR 5112) that together provide jury trials for whistleblowers and extend protection to national security employees and government contractors. The fate of S. 494 will be determined by a conference not expected until late in the session. But the Senate action makes it a foregone conclusion that federal whistleblower law will be strengthened. The remaining questions are – How much stronger will it become, and will rights be extended to all government workers and contractors who defend taxpayers?
The Senate vote is a milestone in a six year campaign by the Government Accountability Project (GAP) and a good government coalition that has swelled to 30 citizen organizations, spanning the ideological spectrum from taxpayer watchdogs and national security professionals, to civil liberties coalitions and federal labor unions.
GAP Legal Director Tom Devine commented, “We’re elated – it is long overdue for Congress to protect federal workers and declare war on government misconduct. The Senate acted quickly and responsibly to close the accountability gap created by the Supreme Court. This unanimous Senate mandate for whistleblowers proves there is a political imperative among voters, and a viable base in Congress to restore open government. Now the question is whether House leaders get the message.”
The legislation reflected efforts by a bipartisan coalition including Senator Daniel Akaka (D.-HI), HSGAC Chairman Susan Collins (R.-ME), Finance Committee Chairman Charles Grassley (R.- IA), Senator Carl Levin (D.–MI), Senator Joseph Lieberman (D.-CT), and Senate Armed Services Chairman John Warner (R.-VA).
Devine singled out Senate staff for particular praise. “The backbone for the victory was tireless efforts by a team of invisible heroes on the staffs of Senators Akaka, Collins and Levin. They proved that Congress sometimes still engages in sustained, collegially bi-partisan hard work to make a difference.”
The good government coalition includes the National Treasury Employees Union, American Federation of Government Employees, National Security Whistleblowers Coalition, the Liberty Coalition, American Library Association, American Whistleblowers League, U.S. Bill of Rights Foundation, Center for Corporate Policy, Coalition for Democratic Rights and Civil Liberties, Common Cause, Defenders of Wildlife, Federation of American Scientists, Fund for Constitutional Government, Goverup.com, HALT, Information Trust, Integrity International, National Taxpayers Union, National Whistleblower Center, NO Fear Coalition, OMB Watch, Openthegovernment.org, Public Employees for Environmental Responsibility, Sustainable Energy and Economy Network, Taxpayers Against Fraud, the Union of Concerned Scientists, and others.
S. 494 restores the mandate of the Whistleblower Protection Act (WPA), which has been gutted by judicial activism since 1994, when Congress unanimously approved it as the strongest free speech law in history – on paper. The amendment also strengthens the due process enforcement structure for paper rights, and applies them to a broader scenario of harassment such as security clearances, retaliatory investigations and gag orders. Specifically, the legislation would –
- Codify the legislative history of “any” protected disclosure, meaning the WPA applies to “any” lawful communication of misconduct, restoring the scope of protection already approved by three unanimous votes and canceling the effect of Garcetti v. Ceballos on federal workers.
- Restore the unqualified, original "reasonable belief" 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 – and make it prohibited for an agency to issue an illegal gag order. The anti-gag statute has banned spending to cancel WPA free speech rights due to hybrid secrecy categories like “classifiable,” “sensitive but unclassified,” “sensitive security information” and other new labels that lock in prior restraint secrecy status, enforced by threat of criminal prosecution for unclassified whistleblowing disclosures.
- Codify protection against retaliatory investigations, giving whistleblowers a chance to end reprisal by challenging preliminary witch-hunts.
- Bar the President from imposing ex post facto “intelligence employee” 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 1-119 record against whistleblowers since 1994, when Congress voted unanimously to strengthen the Act), restoring all-Circuit 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.
The Senate bill does not contain five critical reforms in House-passed legislation, H.R. 1317 and 5112. These reforms are: protection for national security whistleblowers at the FBI, CIA, NSA and other intelligence agencies, protection for government contractors, protection for baggage screeners, jury trials for a fair day in court, and neutralization of the government’s use of the “state secrets privilege” as a way to cancel whistleblower trials. Devine emphasized that the coalition will not ease its efforts until those reforms are achieved as well. Jury trials are the cornerstone of Congress’ Sarbanes-Oxley reform for corporate workers, and were approved in last year’s Energy Policy Act for employees at the Department of Energy and Nuclear Regulatory Commission.
The Senate action follows U.S. leadership that won similar whistleblower rights last December for U.N. employees. Late last year, U.N. Under-Secretary General for Management Christopher Burnham stated, “If we are going to have a culture here of ‘I am not going to lie, cheat, steal or tolerate those who do,’ we have to have a whistleblower protection policy.” Burnham, previously the State Department’s Chief Financial Officer, engineered U.N. approval for new whistleblower rights that are the gold standard for freedom of expression at international organizations.
GAP Legislative Representative Adam Miles commented, “The Senate has applied our U.N. anti-corruption policy to fight misconduct at home. Now House leaders are on the spot to do the same. Before the November elections, House leaders have a basic choice to make: Will they act to protect whistleblowers that defend the public, or maintain the wall of secrecy that harms the taxpayer? The choice should be clear.”
Devine put the Senate action in perspective. “The Senate victory is a burst of sunlight in what has become the dark ages of government secrecy.”
Government Accountability Project
The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization with offices in Washington, D.C. and Seattle, WA.