The new Democratic leadership must prove it can lead. It should start by acting on a bipartisan reform favored last Congress by everyone except the White House and Republican congressional leadership – whistleblower reform. Over the next two years, potentially every crucial political battle will depend on learning the truth from whistleblowers. Democrats should give them the rights they need to make a difference.
Currently, whistleblowing is professional suicide for government employees. The Whistleblower Protection Act (WPA) has become a trap that sustains secrecy enforced by repression. Its paper rights are worthless due to discredited enforcement channels, such as administrative hearings where whistleblowers’ track record since 2003 is 0-53 for decisions on the merits. Judicial appeals are limited to the Federal Circuit Court of Appeals, a FISA-like specialty court, where Federal whistleblowers have only won two of 129 cases since 1994. By contrast, corporate workers have access to jury trials in federal court to enforce their rights.
Since 2002, a legislative fix to this problem has been approved unanimously five times by Senate and House committees. But congressional leadership silently killed each effort by refusing to schedule floor votes.
Last summer, a core of Senate champions secured unanimous approval by attaching the legislation to the defense authorization bill. During an ensuing joint House-Senate committee, whistleblower rights received support from five Senate and House committee chairs and agreement was reached on consensus language.
But it vanished in the back rooms.
We do not know what happened for sure. We know the anti-secrecy reform was secretly killed right after the White House shrilly intervened, insisting that protecting whistleblowers who challenge national security breakdowns would somehow threaten national security. Around the same time, House leadership secretly added language to end funding for the government’s institutional whistleblower against waste and fraud in Iraq – the Special Inspector General who caught massive corruption.
On Election Day, voters rejected government abuses of power. Whistleblower protection makes political sense because it matches the public’s stated reasons for the results. At the top of their list was eliminating corruption. Whistleblowers are the human factors for credible anti-corruption campaigns, which are empty if the government abandons its witnesses.
On national security, whistleblowers were the Paul Reveres warning for years of airline and other security breakdowns that made 9/11 inevitable. But the dark side of the bureaucracy killed those messengers instead of listening. The 9/11 Commission’s bottom line was that the tragedy was caused by information bottlenecks, leaving the officials the public counted on flying blind and innocent Americans vulnerable.
Whistleblowers are the public’s eyes and ears for matters directly impacting our families. FDA scientist Dr. David Graham successfully exposed the dangers of pain killers like Vioxx, which caused over 40,000 fatal heart attacks in the United States. The drug was finally withdrawn after his studies were confirmed. Scientists like NASA’s Dr. James Hansen refused to cooperate with censorship of their warnings about global warming; namely that we have five years to change business as usual, or Mother Nature will turn the world on its head.
Whistleblower reform is a win-win bargain. For six years we’ve been told that public safety means spending more while shedding luxuries like constitutional rights. But it doesn’t cost to listen. Whistleblower protection makes us safer by strengthening freedoms, instead of canceling them. Moreover, it saves taxpayers money – a lot. The Justice Department concedes that since contractor whistleblower rights were enacted in 1986, their disclosures of fraud have resulted in $15 billion in recoveries.
Most fundamental, the Democrats can prove they want to exercise the right to know. You cannot have effective congressional oversight without an infrastructure of safe channels for the flow of information.
There is little work left for the new leadership – besides finding time for a vote. Last Congress, Representative Henry Waxman (D.-CA) earned unanimous Democratic support for a bill that upgrades federal whistleblower rights through a structural overhaul with normal court access for enforcement. Representatives Ed Markey (D.-Mass) and Carolyn Maloney (D.-NY) introduced the Paul Revere “Freedom to Warn Act,” co-sponsored by soon-to-be Judiciary Chairman John Conyers (D.-MI). It creates one consistent, coherent system for whistleblowers that locks in “best practices” for whistleblower rights for all corporate and government workers.
This issue will be a weathervane to see new leadership is serious about reform. If they are, they will give those who defend the public a fair chance to defend themselves.
Tom Devine and Adam Miles work at the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization, based in Washington, D.C.