By TOM DEVINE, Legal Director for the Government Accountability Project
It is ironic that a major anti-secrecy reform was thwarted by a single senator’s secret “hold” just before Congress adjourned in December. Perhaps some good will come of this double-edged attack on the public’s right to know — if it sparks reform.
The Whistleblower Protection Enhancement Act — which would have offered expanded protection for federal employees against retaliation for reporting waste, fraud and abuse — had passed unanimously, first in the Senate and then a week later, on Dec. 22, in the House. The White House had made an unrestrained effort to deliver on this campaign pledge. It was supported by more than 400 organizations of all political stripes, with 80 million members. The National Taxpayers Union announced that support for the act would receive the highest priority on its legislative scorecard. Republicans had just changed the political landscape with election victories based on a mantra of cracking down against deficits, fraud, waste and abuse — the point of whistle-blower laws. Congress was poised to give the taxpayers a major legislative Christmas present.
So what happened?
The bill fell victim to a secret Scrooge, an anonymous Republican senator who personifies how a tyranny of one threatens congressional accountability. Late in the afternoon on the last day of the session, the House unanimously approved the Senate bill minus a few controversial national security provisions. That meant the otherwise intact, milder legislation had to go back to the Senate for another vote. Although Republicans and the Democratic Senate leadership both supported this formality to complete enactment, about an hour before adjourning, an anonymous GOP senator said no, put a hold on the bill and left town, killing the reform.
A hold is like a passive filibuster of one. It can be removed only through the same process to defeat a filibuster: 60 votes along with days of procedural hurdles that paralyze all Senate business. While theoretically the secret senator must come out after six days, that rule is no help at session’s end. Besides, there is no enforcement, and senators often “launder” holds by tag-team tactics, taking turns invoking a hold for five days at a time.
It is not as if the whistle-blower law was kneejerk political grandstanding. The legislation reflects 12 years of work in Congress to earn a painstaking consensus. The compromise that survived the Senate’s political gantlet contained two-thirds of what was originally sought, and had earned the overwhelming support of both earlier adversaries and champions.
Instead of being political window dressing, this law would have made a real difference against secrecy. It would have overturned 16 years of hostile rulings by a specialty court and administrative boards that gutted and rewrote the law as written by Congress, leaving a 3-210 track record against whistle-blowers. It would have also expanded the scope of rights, and finally given whistle-blowers access to the appeals court system instead of being limited to one specialty court.
Studies consistently have shown that whistle-blowers are more effective than audits, compliance departments and law enforcement combined in exposing institutional fraud.
Even without the proposed rights, under current law they have led to removal of unsafe drugs such as Vioxx (blamed for 50,000 fatal heart attacks); restoration of federal air marshal coverage that may have prevented a more ambitious rerun of 9/11; and delivery of mine-resistant armored vehicles that cut combat fatalities by one-third in Iraq and Afghanistan and reduced the risk of injury or death from improvised explosive devices by four to five times, according to field research conducted by the Marines. But without those rights, it is not fair to expect federal workers to act publicly if they cannot defend themselves.
The clubby Senate process itself is an open invitation to corruption. Special interests know that all they need to find is one senator with flexible ethics to anonymously kill whatever bill they don’t like. That senator has no reason to fear accountability. It is a total perversion of the democratic system.
While secret holds have bipartisan roots, it is Republicans who have a long history of using them to defeat whistle-blower protections. Secret Senate Republican holds have killed whistle-blower reform not just in 2010 but in 2004, 2006 and 2008.
Whistle-blowers risk their professional lives for Republican campaign rhetoric. Senate Minority Leader Mitch McConnell (R-Ky.) needs to restore GOP credibility, and show that he and his colleagues have heard the voters, by helping pass this law promptly in January. He has shown impressive party discipline when it comes to defeating Democrats. Now it’s time for the same resolve defending taxpayers.
Tom Devine is legal director of the Government Accountability Project in Washington.