Whistleblower Protection – Where We Stand 243 Years After the First Whistleblower Law

This podcast features our Legal Director Tom Devine and was originally published here.

National Whistleblower Day is celebrated each year on July 30. America’s first whistleblower law was approved during the height of the American Revolution on July 30, 1778 when Congress acted on whistleblower disclosures made about wrongdoing and abuses by a senior officer of the Continental Navy.

The latest FEDtalk podcast episode examines the state of whistleblower laws in America, 243 years later. Guests for the program hosted by Debra Roth include co-chair of the Senate Whistleblower Caucus, Senator Chuck Grassley (R-IA); Tom Devine, Legal Director of the Government Accountability Project (GAP); Liz Hempowicz, Director of Public Policy for the Project on Government Oversight (POGO); and inaugural director of the House Office of the Whistleblower Ombuds, Shanna Devine.

“Whistleblowers are patriotic people who ought to be respected,” said Senator Grassley. He called these issues “not just important to Members of Congress and a small network of interest groups in Washington D.C. They’re very important for the entire nation because whistleblowers play a critical role in our government, to make government responsive.”

Senator Grassley expressed his concerns about the lack of quorum at the Merit Systems Protection Board (MSPB), which has resulted in a backlog of 3,500 cases, including hundreds of whistleblower cases.  Senator Grassley called on President Biden to nominate “qualified board members who have sound reputations and will adjudicate cases fairly. Not all of the nominations the Senate has received from the past presidents have lived up to that standard….we need to get these cases moving and this backlog settled.”

Senator Grassley provided an update on legislation he is pursuing, including to strengthen incentives and protections for whistleblowers who report potential money laundering, strengthen the False Claims Act, strengthen fraud civil remedies, and establish stronger whistleblower protection for FBI employees. “Wherever there are gaps in our existing whistleblower laws, I am working to close those gaps,” said Senator Grassley.

GAP’s Tom Devine laid out the state of affairs for whistleblowers.  He said we are at a “real crossroads time for freedom of speech and whistleblower rights. Best of times and worst of times for whistleblowers. Best of times because we are in the middle of a revolution for freedom of speech. In 1978 the U.S. passed the first national law, in 1998 Great Britain followed, now we have 62 national whistleblower laws. The European Union just passed sweeping freedom of speech laws in 2019.  In the U.S., 86% of voters want stronger rights for government WBers according to a recent poll – we won the cultural revolution in the U.S.”

“Bad news is that while we were pioneer rights, our rights are now like dinosaur rights we’ve fallen so far behind the rest of the world. There’s almost a grand canyon like gap between our beautiful rights on paper and our rights in reality” GAP’s Devine said. “In fact, it’s gotten so bad that due to political vulnerability the only enforcement game in town, we haven’t even had an administrative law final decision in over 4 years,” at the MSPB.

POGO’s Hempowicz discussed legislative efforts to strengthen whistleblower rights, including by focusing on the affirmative right to privacy for whistleblowers as a means to prevent retaliation.  She cited broad support for the bipartisan Whistleblower Protection Improvement Act of 2021, which was approved by the House this summer.

Roth and Hempowicz discussed required federal workforce training on whistleblowers.  “The training is not working,” Hempowicz asserted. “There has to be large scale leadership in this space. There has to be actual accountability when people are retaliating against whistleblowers.  There needs to be enforcement of punishing supervisors instead of promoting them when they retaliate to get them out of the office. We need to be more inclined to hold people accountable.” Roth observed the need to close the gap between law and culture within the federal bureaucracy.

Shanna Devine, Director of the Office of the Whistleblower Ombuds, provided an overview of the new organization in the House of Representatives and the work done over the past two years to stand the office up. The purpose of the office is to promulgate best practices for intake of whistleblower disclosures by House offices, as well as to provide training and resources to member and committee offices.