By GAP Legal Director Tom Devine.
Congress wisely included “best practices” whistleblower rights for all employees of contractors, state or local governments receiving the $787 billion stimulus. But it included nothing to protect federal workers in a position to expose stimulus fraud. What happened, and what can be done?
What happened was simple: Key Senate offices objected that the full scope of expanded federal rights only had been subjected to House hearings and not processed through the regular order. There was no time to argue. But the whole law was passed out of “regular” order. The same rules should apply to accountability decisions as to spending.
House Speaker Pelosi already had rejected the same objections for three reasons: 1) federal employees have a vital oversight role to protect the taxpayers against fraud, waste and abuse 2) the legislation provides whistleblower protection for workers of the institutions receiving stimulus funds and 3) federal whistleblowers currently do not have viable rights. She correctly concluded, “(I)t is inconceivable that the people’s business had been conducted so long without whistleblower protections to encourage every public employee to do the right thing.”
It is not too late for accountability, however. Congress has more than enough time to finish institutionalizing best practice rights through the regular order for federal whistleblowers before the bulk of the spending begins in 110 days. The politicians owe it to the taxpayers.
Secrecy enforced by repression silences America’s best anti-corruption resource. Whistleblowers are the life blood for any credible commitment against fraud. Empowering them to file lawsuits under the False Claims Act explains why fraud recoveries in government contracts have risen from $26 million in 1985 to nearly one billion dollars annually since. A Price Waterhouse study of corporations globally found that employee disclosures were responsible for detection of more fraud than auditors, internal compliance officers and law enforcement combined. There is no excuse to leave this resource dormant.
After nearly 10 years it is time to blow the whistle on “normal” legislative channels through which good government and taxpayer groups dutifully have petitioned. This reform is languishing despite four hearings, eight committee approvals committees, and four full Senate or House votes. Three were unanimous, and the closest was 331-94.
Why isn’t this done? The legislative process has been a broken record of procedural sabotage trumping an overwhelming popular and political mandate. Three times secret holds have blocked votes on this anti-secrecy reform.
Meanwhile, employees who should be able to speak out to Congress end up remaining silent. They know that if they stick their necks out and face retaliation, they do not have a fighting chance to defend themselves. It is no secret that whistleblowers have lost 99 percent of cases at the Federal Circuit Court of Appeals since 1994, when Congress last unanimously strengthened the law. During the entire Bush administration, the U.S. Merit Systems Protection Board only ruled twice (out of 56 decisions) that whistleblowers were illegally harassed.
Another concern is extending equal whistleblower rights to FBI and intelligence employees, as the House twice has voted. That is a red hearing: The issue is merely whether to permit independent enforcement of pre-existing rights, as exists now for discrimination and privacy laws.
The FBI and other intelligence agencies will, and should, be involved with creating a new infrastructure. Reliable critical infrastructure defenses are a homeland security necessity that whistleblowers can help keep from degenerating into pork. FBI officials told Congress last week that the agency’s anti-fraud challenge will increase sharply.
Why should there be a national security loophole for accountability? There is no such loophole excluding whistleblowers at contractor, state or local agencies receiving federal money.
There is an overwhelming popular and legislative mandate for this anti-secrecy reform that has been blocked by abuses of secrecy in the legislative process. It is not fair to keep sacrificing justice for whistleblowers, or accountability for taxpayers, at the altar of the “right” way.