GAP Hails Quick Action by Civil Service Leaders to Restore Whistleblower Rights

(Washington, D.C.) – The Government Accountability Project (GAP) applauds members of the Senate Homeland Security and Governmental Affairs Committee for acting quickly today to plug a government accountability loophole created last May when the Supreme Court’s Garcetti v. Ceballos decision canceled constitutional free speech rights for government workers carrying out their job duties.

Senators Daniel Akaka (D-HI) and Susan Collins (R-ME), with other committee leaders introduced the “Federal Employee Protection of Disclosures Act,” S.274, which includes this reform amidst a general overhaul of the Whistleblower Protection Act. In response to the court ruling, last June the Senate agreed to identical legislation by unanimous consent as an amendment to the 2007 National Defense Authorization Act. The reform was killed by House leaders in a joint conference committee after intensive back room pressure by the White House and Justice Department, despite backing by four Senate and House committee chairs.

GAP has been pushing the reform for seven years, along with a diverse coalition of 45 good government groups.

GAP Legal Director Tom Devine praised the Senate leaders for moving quickly. “If the first 100 hours are reserved for leadership by Democrats, restoring credible whistleblower rights should be enacted in the first minute of bipartisan consensus. It is the foundation for effective congressional oversight and a prerequisite for enforcement of ethics reform. If Congress is serious about those goals, it will start protecting its witnesses.”

The legislation restores the mandate of the Whistleblower Protection Act (WPA), which has been gutted by judicial activism since 1994, when Congress unanimously strengthened the WPA. The amendment also strengthens the due process enforcement structure for WPA paper rights, and applies them to a broader set of harassment scenarios, such as security clearance actions, retaliatory investigations and gag orders.

Specifically, the legislation would –

  • Codify the legislative history for “any” protected disclosure, meaning the WPA applies to all lawful communication of misconduct. This restores “no loopholes” protection and cancels the effect of Garcetti v. Ceballos on federal workers.
  • Restore the unqualified, original “reasonable belief” standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.
  • Make permanent and provide 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.
  • Codify protection against retaliatory investigations, giving whistleblowers a chance to end reprisals in their early stages.
  • Bar the President from imposing ex post facto “intelligence employee” status to strip employees of their merit system rights after they assert them by filing a lawsuit.
  • End 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 2-129 record against whistleblowers from October 1994 to October 2006), restoring all-Circuit review, as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act.
  • Restore independent due process review of security clearance determinations for whistleblower reprisal, unavailable since a 1985 Supreme Court decision.
  • Provide specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff.
  • Strengthen the Office of Special Counsel’s authority to seek disciplinary sanctions against managers who retaliate.
  • Authorize the Special Counsel to file friend of the court briefs.

The legislation covers 94.4 percent (1.67 of 1.77 million) of federal employees, and 88.3 percent (755,000 of 855,000) of national security whistleblowers at agencies like the Pentagon, Department of Homeland Security, Department of Energy (DOE) and Nuclear Regulatory Commission (NRC). But, the bill does not contain five critical reforms approved last year by the House Government Reform Committee in two bills, H.R. 1317 and H.R. 5112. These include protection for national security whistleblowers at the FBI and intelligence agencies, protection for government contractors, protection for federal baggage screeners, jury trials for a fair day in court, and neutralization of the government’s use of the “state secrets privilege” as a way to cancel whistleblower trials.

Jury trials are the cornerstone of Congress’ Sarbanes-Oxley reform for corporate workers, and were approved in 2005’s Energy Policy Act for employees at the DOE and NRC. The legislation also does not address the Office of Special Counsel’s abdication of leadership by Special Counsel Scott Bloch, who has effectively terminated that agency’s mission to help whistleblowers and turned it into a magnet for contempt by federal workers.

GAP Legislative Representative Adam Miles commented, “When first proposed in 2000, the Senate bill would have solved the breakdown of whistleblower law. But the legislation has not changed significantly during a six year secrecy tidal wave. We urge the Senate to modernize this legislation before a final vote. The composite Senate and House committee-passed bills last session reflect the best practices of global whistleblower law.”