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Protecting Whistleblowers since 1977

Criticisms of S. 372 Are Flawed and Dangerously Misleading -- the Whistleblower Protection Enhancement Act Should Be Passed Immediately

Shanna Devine, December 15, 2010

We’re at the crossroads of a breakthrough for free speech rights; however, there has been a divergent campaign in the 11th hour. Today, Ms. Julia Davis wrote an article titled “Kill the Bill” – referring to S. 372, the Whistleblower Protection Enhancement Act. Curiously, days earlier this same author joined a letter by whistleblowers that supports S. 372.

In the Examiner, Davis writes, “Proponents of the corrections for the bill argue that unless the bill is fixed before it’s signed into law, whistleblowers rights will be catapulted backwards into the dark ages.”

The aforementioned statement, unaddressed, is dangerously misleading for anybody unfamiliar with the current state of federal whistleblower protections, because whistleblowers do not have viable rights under current law.

A few examples of how the Whistleblower Protection Act has been gutted over the years through judicial activism may help put Davis’ statement into context. Currently, you are not eligible for federal whistleblower protection if:

  • you are not the first person who discloses given misconduct;
  • you make a disclosure to your co-worker;
  • you make a disclosure to your supervisor;
  • you disclose the consequences of a policy decision;
  • and the kicker: if you blow the whistle while carrying out your job duties.

S. 372 would overhaul these judicially created loopholes, so that the law can protect federal whistleblowers as intended. The law would:

  • Expand of whistleblower protection coverage to 40,000 TSA baggage screeners
  • Create protections for scientific freedom
  • Codify and provide a remedy for the anti-gag statute
  • Bar a Patriot Act hybrid secrecy category that overrides federal whistleblower rights
  • Offer Title 5 employees access to jury trials to challenge major disciplinary actions (for the first time in history)
  • End the Federal Circuit Court of Appeals monopoly on appellate review
  • Protect more than just the "first person" who discloses given misconduct
  • Bar Critical Infrastructure Information -- a hybrid secrecy category created by the Patriot Act -- from overriding WPA free speech rights.
  • Provide government contractors the right to make classified whistleblowing disclosures to Congress
  • Provide the Office of Special Counsel with authority to file friend of the court briefs in court to support employees appealing MSPB rulings
  • Create a whistleblower ombudsman as a five year experiment to advise employees of their rights in Offices of Inspectors General (OIG) for title 5 employees.

These are just some of the numerous huge benefits to federal whistleblowers that this law contains, which is why so many notable whistleblowers and good government groups supported it in recent letters. 

The letter signed by 30 whistleblowers (including Ms. Davis!) states that, albeit imperfect, S. 372 provides much needed whistleblower protections to overturn the status quo:

It leaves us far better off than without it. No one contends S. 372 is perfect, or as strong as the House version (H.R. 1507)...But even though not perfect, S. 372 is more than just a good deal. It is a much needed breakthrough, and the reality is that there is no time left to "fix" S. 372 further in this Congress.

While S. 372 does not include every reform that the whistleblower community has sought, it will dramatically improve the status quo for Title 5 employees, and offers small steps forward for national security employees. Over the past decade, the whistleblower community has worked tirelessly to pass the strongest possible whistleblower reform. If it was possible to make changes to the bill and still receive the necessary votes for passage, GAP would wholeheartedly support that approach.

Unfortunately, arcane Senate procedures make it virtually impossible to pass flawless legislation. After overcoming five secret Senate holds in the past decade, this bipartisan reform finally passed the Senate last Friday by unanimous consent. If any changes are made to the legislation, it will have to be sent back to the Senate for a second unanimous vote. Even if there was time for a second vote (which there is not), it would not clear unanimous consent with the changes that a vocal minority is demanding.

Now S. 372 must pass the House, and it needs positive reinforcement from the audience it is intended to protect: Whistleblowers and the public. Almost 100 organizations, ranging from the American Federation of Government Employees to National Taxpayers Union to American Civil Liberties Union have sent a letter to the House of Representatives, urging passage of S. 372 without delay. 

The campaign to strengthen federal whistleblower protections will not stop after S. 372 is signed into law, but it will remain dead in the water for the foreseeable future if this reform does not pass in the 111thCongress.

Shanna Devine is Legislative Coordinator for the Government Accountability Project, the nation's leading whistleblower advocacy organization.