Although it had been a trying couple of weeks (if not decades), things were looking promising for federal whistleblowers on the final day of the 2009-2010 session of Congress. Earlier that month, the Senate had passed the Whistleblower Protection Enhancement Act (WPEA) by unanimous consent. By midday, the legislation had also passed the House of Representatives, again by unanimous consent, with certain protections stripped. Headed back to the Senate, passage was expected to be merely a formality to a bill that was a decade in the making.
Instead, the legislation was sabotaged by one (or more) senator's anonymous secret hold: a sinister tactic that allows for a senator to halt legislation from being voted on – while remaining anonymous. That's right – key whistleblower protections allowing federal workers to report government corruption and shine a light on secret wrongdoing had been thwarted by an elected official who chose to act from the shadows. So much for government accountability. And back to the drawing board for GAP and federal whistleblowers. Or so it appeared.
In early 2011, GAP teamed with the NPR program On The Media for a "Blow the Whistle!" project to identify the senator(s) who placed the secret hold. Specifically, On The Media built an online database that utilized a "crowdsourcing" methodology to identify the guilty party. On The Media's listeners and GAP supporters called their respective Senators, noted who they were speaking with (which Congressional office staffer), and asked them to state on the record whether the office was responsible for the hold. Together, we were able to determine that one of two Republican Senators (Jon Kyl of Arizona or Jeff Sessions of Alabama) had placed the hold at the behest of Republican House leadership.
The event turned a defeat into a victory. The public was shocked at the entire storyline of what happened, and as such, demands grew for Senate secret hold reform, which was already under consideration by a number of Senators for previous affronts to democracy. That reform is now a reality, at least in part. And Senators now know the public cares about federal whistleblower protections, and will think twice about undercutting the workers who put their livelihoods on the line to safeguard the public. For the full, detailed story, read below.
On December 10, 2010, the Senate passed the Whistleblower Protection Enhancement Act (S. 372) through unanimous consent – a procedure used to swiftly pass noncontroversial legislation. The benefits of the legislation were clear, as a litany of good-government measures aimed at enabling our country's federal workforce to report wrongdoing had wide bipartisan support, as well as from a host of prominent whistleblowers. GAP had been working on this reform for over a decade, and had seen failures through last-minute backroom deals – often in conference committee meetings – to keep this legislation from becoming a reality.
The legislation was sent to the House of Representatives, and 90 good-government groups urged its passage. However, red herring national security concerns that the bill would provide support for WikiLeaks sparked additional complications. GAP generated a petition on Change.org to urge Rep. Darrell Issa, who contemplated asking for the bill to be delayed until the next session. In less than 18 hours, over 500 citizens had urged the Representative to bring the legislation forward for a vote (along with 63 more good-government groups). On December 22, 2010, the final day of the Congressional session, a bipartisan agreement was brokered in the 11th hour, where modified legislation extended coverage only to non-intelligence employees. In an unheard-of-agreement between Speaker Nancy Pelosi (D-Ca) and Minority Leader John Boehner (R-Oh), the legislation also passed in that chamber by unanimous consent.
The WPEA was sent back to the Senate for a final vote when, hours before the session ended, it died at the behest of an anonymous hold placed by a senator. Under the rules of the last Congress, the 'secret hold' process allowed a single senator to hold a bill anonymously for up to six days. This maneuver does have a proper use – it was originally devised to allow senators adequate time to review complex legislation when things got too hectic, and bills moved too quickly. But the use of it had become perverted. Senators were often employing a tag-team approach to holds, taking turns stopping a bill for five days at a time while remaining anonymous, then passing it off to another. The process repeats, back and forth between two senators, and bills are put in permanent limbo. But using a hold with just hours remaining in the session, like what happened with the WPEA, effectively allowed a senator to secretly kill legislation before the requirement to go public becomes operative – essentially, a running-out-the-clock strategy.
GAP Legal Director Tom Devine had appeared on On The Media in early December, discussing the state of the legislation and what journalists could look forward to if it passed. As a media analysis program, On The Media had an interest in looking at whistleblower protections, with the symbiotic nature of journalist-whistleblower relationships.
In early January 2011, following the holiday season after the hold, GAP and On The Media joined forces in an effort to discover the senator(s) responsible for taking this action. On The Media asked its listeners, and GAP asked its supporters, to contact their respective senators' offices and ask if they were the party who wrongfully killed this paramount legislation. Then, however the senators answered, people reported the correspondence to On The Media or GAP, and it went into the online database. This is an excellent example of online "crowdsourcing" – the open call to, and reliance on, members of the public to achieve a specific task. Within days, our joint campaign attracted attention from other media outlets.
Shortly after the campaign started, the Senate voted to limit the practice of the secret hold. Those changes were already being contemplated, but the news on the WPEA demise and the project, along with several other bills' similar untimely deaths, helped raise public awareness about this hurtful tool before it was changed. Democratic Senator Ron Wyden (OR) spoke with On The Media to explain the changes to the hold process. Additionally, On The Media spoke with Marine Corps whistleblower (& GAP client) Franz Gayl – whose disclosures were personally responsible for getting life-saving equipment more quickly to our troops – to illustrate just what type of federal worker would get the protections they desperately need (Gayl's success story can be read here).
The campaign was immediately a huge success, with hundreds of people reporting on the 87** senators who remained in office from the prior term (the results for all senators can be viewed easily here.) Steadily, senatorial staff confirmed one-by-one, in response to their constituent's calls, that their office was not responsible for this injustice. About one month after we began, all but five senators verified they did not place the hold.
**It should be noted that the database omitted the 13 senators who did not return to office. Through internal connections and previous correspondences, GAP was able to rule out all 13 of these individuals, many by direct conversation. If all 87 then-current senators were eliminated, GAP would have obtained specific confirmation at that time from each of these 13 individuals and made it publicly available. But it did not come to that.
However, these last five Senators proved difficult to encourage a public admission of their actions (one way or another). Remaining suspects by the middle of February included Republican Senators Jon Kyl (AZ), Mitch McConnell (KY) James Risch (ID), Jeff Sessions (AL), and David Vitter (LA).
GAP took a couple of actions at this point. First, using the online petition site Change.org, GAP supporters sent over 1,200 emails to the remaining senators, demanding that they stand up and publicly declare whether they were the culpable party.
GAP then singled out each Senator, one at a time on blogs and in emails to our supporters, challenging their stances on why they would not comment, and what else that meant. In many cases during the project, staffers of the remaining offices simply promised to call constituents back (but never did), or dismissed the issue "as a matter of policy" that their office doesn't comment on holds. That didn't sit well with GAP, and we doubt it sat well with the public. At GAP, we have a simple belief: Senators – our public representatives – should take responsibility for their actions.
We asked supporters to call their Senators and ask a different series of questions (rather than just asking if they placed the hold). New questions included:
- Why does the Senator consider whistleblower protection to be something that his constituents don't have a right to know his position on?
- Does the Senator think there are issues that his constituents do not have the right to know his position on?
- Specifically, what issues does the Senator believe his constituents do not have the right to know his position on?
Sen. Vitter confirmed he did not place the hold two days after our blog and electronic appeal to supporters went out. Sen. McConnell confirmed he did not take the action the day we were going to send out his targeting (we chose to focus on one Senator each day for five days. Hence, there is no McConnell link in the above paragraph). By the beginning of March, there were only three remaining. Weeks went by without any budge from those offices. GAP and On The Media decided to end the project, informing the remaining three offices that they would be considered a prospective culprit for this hold, unless they verified otherwise. Days before finalization, Sen. Risch confirmed he did not place the hold.
And then there were two. In summarizing the responses from these offices, the On The Media project website lists the pertinent information:
Jon Kyl (AZ)
Number of times contacted: 23
Notes: Since 2-17-2011, three constituents have received the following letter in reply to inquiries about his role in killing the Whistleblower Protection Enhancement Act:
"Thank you for contacting me about the Whistleblower Protection Enhancement Act (S.372). The Senate passed S. 372 on Dec 14, 2010 and the House passed a different version of the legislation on Dec 22. With only hours left in the session, the Senate did not have sufficient time to review the House's changes and reconcile the differences between the two bills. "
Jeff Sessions (AL)
Number of times contacted: 20
Notes: 3-8-2011 - From the website bamafactcheck.com: Asked whether Sessions is the source of the hold, Sessions spokeswoman Sarah Haley would neither confirm nor deny Tuesday. "As an office policy, we do not comment on holds," she said.
3-9-2011 - George Altman of the Mobile Press-Register received the following from Sessions's Press Secretary Sarah Haley: "This legislation is not pending in the 112th Congress, and you cannot put a hold on a bill that doesn't exist, so of course we do not have one." This is not a confirmation that Senator Sessions is denying placing the hold.
Then, while we were ending the campaign, a bombshell hit. Based on multiple sources inside congressional offices, GAP confirmed that one of the two remaining senators killed the bill at the request of Republican leadership within the House of Representatives. GAP Legal Director Tom Devine announced the finding on On The Media, and the revelation is detailed here. Devine said it best:
Whistleblowers risk their professional lives to fight government fraud, waste and abuse. How can taxpayers trust any politician who campaigns on that pledge, and then secretly kills rights for government workers who risk their careers to deliver it? House leadership owes taxpayers an explanation as to why they started sabotaging those campaign promises just weeks after the election, before they even began governing. Even more important, Speaker John Boehner owes taxpayers a commitment that this will not happen again.
Less than one week after the project officially ended, the WPEA was reintroduced in the Senate. Since the campaign ended, Senator Kyl's and Sessions' offices have steadfastly refused to identify whether they 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. It could have been either of them, or both.
The Current State of the WPEA
As of December 2011, the WPEA has passed the committee stage in both the House and the Senate. Rep. Darrell Issa has personally made it a priority to pass the bill through the House of Representatives. GAP continues to lobby for the passage of the WPEA. Now, with the secret hold having less arrows in its quiver, federal whistleblowers may finally get the protections they need. For the latest news on the WPEA, click here.
It should be noted that the reform to the secret hold process does not prevent the actions taken against the WPEA from happening again. Senators can now only tag-team for up to 48 hours (instead of 6 days), but after that, Senate Leadership must take responsibility for the hold. Also, the ability to "run-out-the-clock" at the end of the congressional session still remains.
But this episode is still a victory for government accountability and transparency. Senators and key House Republican leadership tried to suppress whistleblowers while they remained in the shadows. They were not successful in staying hidden. GAP is forever thankful and grateful to all of its supporters and On The Media listeners who took the time to stand up against government secrecy. This was an amazing project to work on that saw real results.
GAP would like to give a special thanks to On The Media for our joint quest to find which senator tried to put a roadblock in-between whistleblowers and journalists.
Key Resource: On The Media's Blow the Whistle! Project