Congress needs to protect government whistleblowers

This op-ed was written by Government Accountability Project’s Legal Director Tom Devine.

“Whistleblowers play an integral part in identifying and rooting out waste, fraud, abuse, mismanagement, and corruption within federal agencies.” This statement by House Judiciary Weaponization Subcommittee Chair Jim Jordan (R-Ohio) reflects bi-partisan rhetorical support for those who risk their careers to defend the taxpayers. Unfortunately, unlike corporate workers, government employees do not have credible free speech rights against retaliation. Whistleblowing about federal misconduct remains the sound of professional suicide, and taxpayers are the losers. Who are federal government whistleblowers, and why do they matter? The legal definition is an applicant, current, or former employee who discloses information that they reasonably believe evidences illegality, gross waste, gross mismanagement, or a substantial and specific danger to public health or safety. Translated into English– they are public servants who use free speech rights to challenge abuses of power that betray the public trust. Why do they matter? They change the course of history by exposing misconduct that can only be sustained by secrecy.

Consider a sampling of how they’ve made a difference. They have:

  • increased annual recoveries from around $10 million to over $2 billion through whistleblowing False Claims Act lawsuits;
  • forced removal of Pfizer’s killer pain killer Vioxx from the market, after it had killed over 40,000 Americans from heart attacks—almost as many as who died in the Vietnam war but from a drug the government had officially decreed as safe;
  • prevented the Transportation Security Agency from going AWOL during a planned Al Qaeda attack for a far worse version of 9/11, preventing the attack in the process;
  • lawfully pioneered exposure of blanket, illegal domestic surveillance. This surveillance added Big Brother to the household of every American family with a phone or computer, laying the foundation for congressional action outlawing it;
  • exposed and ended the practice of oil industry lobbyists censoring federal research on climate change;
  • forced delivery of effective MRAP and land mine clearing vehicles to Iraq and Afghanistan, cutting land mine casualties from 60 percent to 5 percent;
  • prevented disastrous nuclear accidents by forcing compliance with Nuclear Regulatory Commission safety requirements, such as preventing the systematically illegal Three Mile Island cleanup from risking a meltdown that would have forced evacuation of part of the East Coast;
  • successfully challenged TSA’s policy of refusing to allow (or withholding) Covid protective gear, after exposing that the airports were substantial vectors for the pandemic’s first wave; and
  • successfully defended government inspection of food, with over 500 whistleblowers defeating bi-partisan efforts on five separate occasions that would have imposed corporate honor systems, which had the potential to sharply increase food poisoning incidents.

This list could go on indefinitely, but the point is clear – sometimes whistleblowers are right, and sometimes they are wrong, but they allow society to deal with threats that those abusing power won’t let anyone know about. They are the lifeblood for both accountability to the public and for law enforcement, where they are a win-win bargain for all but crooks. We don’t need appropriations for people to tell the truth. It costs nothing to listen. And unlike most law enforcement strategies, whistleblower rights fight crime by strengthening freedom rather than canceling it.

What happens when we don’t protect whistleblowers? 9/11 occurred because the FBI wouldn’t allow Regional Counsel Colleen Rowley to do her job and raid the terrorists before they struck. It broke America’s heart to watch the Challenger space shuttle crash with all its astronauts – an accident that likely wouldn’t have happened had a whistleblower’s warnings been heeded. In a world where whistleblowers are ignored, taxpayers are the biggest losers. Congress passed best practice whistleblower rights in 2009 to address Republican concerns that President Obama’s $700 billion stimulus would be a magnet for corruption. Inspectors General unanimously testified that the whistleblowers played a major role in keeping that spending remarkably scandal-free. But Congress didn’t upgrade outdated rights before passing the billion-dollar Covid relief package, and Justice Department Inspector General Michael Horowitz conservatively estimated $100 billion of fraud. Unless we protect the whistleblowers, we can expect similar results from trillions more in new spending on infrastructure and climate change. Whistleblowers are also bipartisan because abuses of power are bi-partisan. Unfortunately, what for four decades was a virtually unanimous bipartisan mandate to protect whistleblowers evaporated when some were key witnesses in the Ukraine impeachment hearings. However, this year’s hearings on the FBI and IRS demonstrate how they are the fuel for aggressive congressional oversight by both parties. The bi-partisan consensus badly needs to be restored because whistleblower rights for government workers desperately need maintenance. America’s Whistleblower Protection Act was a global pacesetter that Congress has unanimously reaffirmed three times since 1978. But all laws need regular maintenance, and America’s pioneer law has de[1]generated into a Trojan Horse.

The two Achilles’ heels have been a number of loopholes and the lack of credible due process enforcement. For example, the administrative Merit Systems Protection Board has a monopoly on enforcement, but its vulnerability to political pressure blocked confirmations and led to an empty Board with a 3,500-case backlog. Lacking judicial independence, the administrative judges who conduct hearings rule against whistleblowers in over 95% of initial merits decisions. The solution is simple and[1]obvious: give civil service employees the same free speech rights as corporate workers. Those defending the taxpayers deserve protection as strong as those defending the shareholders. This means adding four new teeth to current law:

  • Permit jury trials if there is no timely administrative decision. This would take politics out of whistleblower justice. Federal employees are the nation’s only major labor group denied a day in court to challenge violations of free speech rights, despite making the disclosures that are most significant for voters;
  • Establish realistic legal burdens to obtain temporary relief. It is almost never available under current law and is essential when cases commonly drag out over five years. By that time, even winning may be too late for those who have lost their homes, gone bankrupt, frequently lost their families, and had their professional reputations irrevocably ruined;
  • Close loopholes that erase the law’s benefits. There are numerous arbitrary loopholes in current law, such as excluding whistleblower coverage for Public Health Service employees challenging Covid policy abuses. The worst is the vacuum of credible rights to challenge retaliatory security clearance actions. Clearances are a prerequisite to see classified information, necessary for some 3.5 million civil service and government contractor employees to do their jobs. As the Weaponization hearings demonstrated, whistleblowers are almost defenseless if the FBI or any other agency decides to purge them through the back door of arbitrarily yanking their clearances to avoid the fuss of defending a termination. National security whistleblowers will continue to be sitting ducks until this loophole is closed;
  • Permit lawsuits when retaliatory investigations are opened. Investigations are a knee-jerk first reaction to find any dirt on whistleblowers. As long as a probe is open, it has a broad chilling effect even if later dropped. This key provision would establish parity with all other whistleblower laws, even the Military Whistleblower Protection Act.

Congress needs to catch up with the bi-partisan mandate whistleblowers have with the public. After the 2006 elections, 79% of swing voters called for stronger whistleblower protections. By 2020, that support had jumped to 86%, according to a 2020 Marist poll. Politicians give speeches against fraud, waste, and abuse, but whistleblowers risk their professional lives. Chairman Jordan’s praise was welcome and well-deserved, but words without action can be empty. Whistleblowers need rights, not compliments.