Senate Reintroduces Whistleblower Protection Enhancement Act

The Government Accountability Project (GAP) praised Senator Daniel Akaka and a bipartisan group of 11 other sponsors for today's introduction of the Whistleblower Protection Enhancement Act (WPEA).

The legislation, which provides whistleblower protections for federal employees, is identical to that unanimously approved last December by the Senate with one exception - removal of a loophole that would have excluded anti-retaliation protection for disclosures of "trivial" illegality which is minor, inadvertent, and occurs during the conscientious carrying out of official duties.

The bill includes protection for national security whistleblowers that the House removed last December after objections by retiring member Pete Hoekstra (R.-Mich.), the former ranking member of the House Permanent Select Committee on Intelligence. Although both parties agreed to the removal and the bill passed that chamber unanimously, GAP has learned over the last several weeks that House Republican leadership secretly asked Senate Republican leadership to block the legislation's passage, and the shrunken bill was killed on December 22 by a "secret hold" hours before Congress adjourned (see more below).

GAP Legal Director Tom Devine expressed appreciation for the bipartisan persistence by Senators Akaka, Charles Grassley (R.-Iowa), Joseph Lieberman (I.-Conn.) and Susan Collins (R.-Maine), stating: "These four Senate offices have been a bipartisan 'Good Government Gang of Four' with a marathon commitment since 2000 to pass this reform for both taxpayers and the public servants who defend them against bureaucratic abuses." Devine explained "The whistleblower bill always has had bipartisan public support, but these offices defend whistleblowers behind closed doors as well."

Devine called for quick action on the reform. "There is no excuse for Congress to place any lower priority on rights for those who fight corrupt government misspending, compared to budget cuts generally. Secrecy is the breeding ground for government corruption that only can be sustained if the public is ignorant of the truth. There is no substitute for whistleblowers as the public's, and Congress', eyes and ears to fight fraud, waste and abuse. Whistleblowers risk their professional lives for the last election's campaign rhetoric. This bill will be a litmus test whether new legislators represent a genuine commitment to change, or their victories reflect political false advertising campaigns."

The full text of the legislation can be viewed here: https://bit.ly/hXCcJ0

Protections

If approved, the legislation would systematically overhaul free speech rights for government workers. The WPEA:

* Closes judicially-created loopholes to the law's protection, such as canceling the effect of a Supreme Court decision, Garcetti v. Ceballo, which limits federal workers' free speech rights while carrying out job duties.

* Provides those covered by the WPA (current Whistleblower Protection Act) access to jury trials in federal district court to challenge major disciplinary actions.

* Ends 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 3-201 record against whistleblowers for decisions on the merits from October 1994 through July 2009), restoring all-Circuit review, as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act.

* Extends WPA rights to some 40,000 airport baggage screeners.

* Provides normal whistleblower rights to those who refuse to violate the law.

* Creates specific protection in the law for scientific freedom, making it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research.

* Removes the loophole that would have excluded anti-retaliation protection for disclosures of "trivial" illegality which is minor, inadvertent, and occurs during the conscientious carrying out of official duties

* Restores the unqualified, original "reasonable belief" standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.

* Makes permanent and provides 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," "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 by national security whistleblowers.

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

* Provides compensatory damages up to $300,000, and reimbursement for expert witness fees to prevailing whistleblowers, establishing consistency with other remedial employment laws.

* Modifies the burdens of proof to make it more realistic for the Office of Special Counsel to seek disciplinary accountability against those who retaliate.

* Provides the Special Counsel with authority to file friend of the court briefs in support of whistleblower rights cases appealed from the administrative level.

The 'Secret Hold' on the WPEA in December

This past weekend, GAP and the NPR show On The Media (OTM) announced an end to their "Blow the Whistle" campaign, which sought to identify which U.S. Senator placed a 'secret hold' during the final hours of the last session of Congress, killing the WPEA. The crowd-sourcing effort, which relied on citizens to contact their respective senators and report back findings, led GAP and OTM to eliminate all but two senators during the three month campaign. A shocking revelation about the 'secret hold' emerged during the campaign. According to GAP, based on multiple sources inside congressional offices, one of the two remaining senators killed the bill at the request of Republican leadership in the House of Representatives.

The complete results of the campaign, with citizen documentation for each senator, can be viewed here: https://www.wnyc.org/blowthewhistle

GAP and OTM are able to confirm, based primarily on information from our supporters and listeners (respectively), that all but two senators were not responsible for the hold on the bill. The final, remaining suspects are Republican Jon Kyl of Arizona, and Republican Jeff Sessions of Alabama. Both Senate offices have steadfastly refused to identify which one formally placed the hold. But the distinction is academic. Four times now since 2004, these two senators have taken turns placing holds that blocked Senate action on the WPEA.