After 13 Year Campaign, S. 743 Sent to President's Desk
(Washington, DC) – The Government Accountability Project (GAP) hailed today's Senate passage of S. 743, the Whistleblower Protection Enhancement Act (WPEA), by unanimous consent. The legislation would provide millions of federal workers with the rights they need to safely report government corruption and wrongdoing. The bill reflects an unequivocal bipartisan consensus, having received the vote of every member in the 112th Congress. The House of Representatives unanimously approved S. 743 in September, and the Senate immediately followed suit during the lame duck session. The text of the bill can be read here.
GAP Legal Director Tom Devine commented: "After a 13 year roller coaster campaign, Congress unanimously has given whistleblowers who defend the public a fighting chance to defend themselves. This is a major victory for taxpayers and public servants, but a major defeat for special interests and bureaucrats. Free speech rights for government employees never have been stronger.
"It would be dishonest to say our work is done, however, or to deny that government whistleblower rights are still second class compared to those in the private sector. House Republicans blocked two cornerstones of the legislation: jury trials to enforce newly-enacted protections, and extension of free speech rights to national security workers making disclosures within agency channels."
Devine singled out retiring Senator Daniel Akaka (D-Hawaii) as the pioneer in the thirteen year legislative campaign to pass the WPEA, stating "Senator Akaka has run and won a marathon victory for whistleblowers and taxpayers."
Other pioneer and current champions include Senators Charles Grassley (R-Iowa), Susan Collins (R-Maine), Joseph Lieberman (I-Ct.), Claire McCaskill (D-Mo.), Patrick Leahy (D-Vt.) and Carl Levin (D-Mi.). A full list of Senate sponsors can be viewed here. House passage was led by Republicans Darrell Issa (Ca.) and retiring member Todd Platts (Pa.) – who has sponsored the House bill for over a decade – as well as House Democrats Chris Van Hollen (Md.) and Elijah Cummings (Md.).
In the waning days of the last Congress, in December 2010, the WPEA – after passing both the Senate and House by Unanimous Consent in some form – was killed by an anonymous Senator's "secret hold" in the last hours of the session. This time, however, the bill is expected to pass before adjournment. That same backroom procedural sabotage previously had killed the reform in 2004, 2006 and 2008.
Over the past 13 years, GAP has spearheaded efforts to pass the WPEA, heading a coalition of hundreds of groups demanding these protections. Intensive dialogue between the Make It Safe Coalition (MISC), which GAP coordinates, the Obama administration, and both chambers of Congress has paved the way for this development.
Devine noted that after the House removed the national security whistleblower provision from the bill, last month the Obama administration made good on its promise to take executive action on those rights, if Congress didn't: "In a Presidential Policy Directive, President Obama kept his word and restored the lion's share of national security rights that the House removed. It is only fair to give credit where due. This is the first time in history that a President unilaterally has made it easier for his employees to challenge his own administration's actions. The White House also had led the drive for whistleblower jury trial rights later removed by House leaders."
What the Bill Does
The most significant benefits in the WPEA are listed below:
1.) Expanded Protection for Disclosures of Government Wrongdoing
- Closes judicially-created loopholes that had removed protection for the most common whistleblowing scenarios and left only token rights (e.g. only providing rights when whistleblowers are the first to report misconduct, and only if it is unconnected to their job duties). (Sec. 101, 102)
- Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions. (Sec. 101, 102)
- Cancels the 1999 precedent that translates "reasonable belief" to require irrefragable proof ("undeniable, uncontestable, or incontrovertible proof") before they are eligible for protection. (Sec. 103)
- Protects government scientists who challenge censorship. (Sec. 110)
- Codifies and provides a remedy for the "Anti-Gag" Statute – a rider in the Appropriations bill for the past 24 years – that requires a statement notifying employees that agency restrictions on disclosures are superseded by statutory rights to communicate with Congress, whistleblower rights, and other statutory rights and obligations. (Sec. 104(a), (b) and 115)
- Clarifies that protection of critical infrastructure information does not override WPA protection. (Sec. 111)
2.) Expanded Coverage and Fair Processes
- Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA in light of its consistent track record of narrowing the law's protections. (The Court has a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits), restoring all-Circuit review for a two-year experiment as mandated in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)
- Establishes explicit whistleblower protections for Transportation Security Administration employees. (Sec. 109)
- Overturns an unusual Merit Systems Protection Board (MSPB) practice that allows agencies in some cases to present their defense first and allows the MSPB to rule on the case prior to the whistleblowers' presenting their evidence of retaliation. (Sec. 114)
- Requires that the President's exercise of his discretionary power to impose national security exemptions that deprive employees of Title 5 whistleblower rights must be done prior to the challenged personnel action. (Sec. 105)
- Provides compensatory damages for prevailing whistleblowers under WPA cases that prevail after an administrative hearing, (Sec. 107(b)), including retaliatory investigations (Sec. 104(c)).
3.) Administrative Authorities
- Provides the Office of Special Counsel (OSC) with authority to file friend-of-the-court briefs to support employees appealing MSPB rulings. (Sec. 113)
- Makes it easier for OSC to discipline those responsible for illegal retaliation by modifying the burdens of proof (Sec. 106(b)), and by ending OSC liability for attorney fees of government managers, if the OSC does not prevail in a disciplinary action (Sec. 107(a)).
- Requires the designation of Whistleblower Protection Ombudsmen in Inspectors General Offices to educate agency personnel about whistleblower rights. (Sec. 117)
- Requires the MSPB to report on the outcomes of whistleblower cases, from the administrative judge through the Board appeal, in its annual reports. (Sec. 116(b))
- Requires the Government Accountability Office (GAO) to study the impact and feasibility of changes in the number and outcome of cases before the MSPB, the Federal Circuit, or any other court; and to provide recommendations to Congress regarding whether the MSPB should be granted summary judgment authority and whether district courts should have jurisdiction over some WPA cases. (Sec. 116)