The world abandoned COVID-19’s best antidote: Whistleblowers
This op-ed was written by our Legal Director Tom Devine and Deputy International Director Samantha Feinstein and was originally published here.
Dr. Wenliang Li is now a Chinese folk hero. In the winter months of 2019, before the deadly pandemic took hold across the world, Dr. Li spoke up against his government’s suppression of the coronavirus SARS-CoV-2. The retaliation he suffered as a result was short-lived; Dr. Li was among the first of the millions worldwide who have died from the disease. While the public outcry after his death led to some accountability, scores of other whistleblowers in China still faced retaliation for stepping forward.
China hardly is alone. Whistleblower suppression has spread across the globe as fast as the virus. Ironically, the world has united around efforts to stop the spread of the virus, but not of whistleblower suppression.
Governments around the world left whistleblowers in a legal lurch before the pandemic even started. We at the Government Accountability Project, along with the International Bar Association, studied whether 37 national whistleblower laws from around the world provide credible rights.
Our report found that many laws are Trojan horses, traps structured to expose dissenters without offering them meaningful protection. Even the most well-written laws often are irrelevant. Out of 37 countries with whistleblower laws passed before 2018, 89 percent had fewer than 15 publicly reported legal decisions, and 22 countries had none. For those who try to exercise their rights under their country’s law, the track record is spotty: Whistleblowers worldwide won their cases only 21 percent of the time — in the United States, less than 10 percent.
The system was ill-equipped to handle massive influxes of coronavirus whistleblowers: from doctors warning of the dangers, to tipsters flagging fraud, to poultry workers reporting unsafe working conditions. Coronavirus whistleblowing in the United States may have increased whistleblower intakes by 30 percent at the Department of Labor. Yet the United States’s whistleblowing protections have not changed to meet the challenge.
In response to the Great Recession of 2008, Congress passed the $700 billion American Recovery and Reinvestment Act of 2009. The stimulus package provided best-practice whistleblower protections for workers at companies receiving the funds to report waste, fraud and abuse. The law prohibited a broad range of retaliation, allowed access to a jury trial in federal court after administrative exhaustion with the Office of the Inspector General, and included best practices for burdens of proof and complete remedies including compensatory damages, attorneys’ fees and expenses.
In the aftermath, Inspector General Peggy Gustafson, in her December 2011 congressional testimony before the Ad Hoc Subcommittee on Contracting Oversight of the Senate Committee on Homeland Security and Governmental Affairs, credited the strong whistleblower protections in the Recovery Act for the low level of fraud in the act. She acknowledged the important role whistleblowers play in identifying waste, fraud and abuse before it festers into scandal. Yet none of the enacted or pending coronavirus packages includes this accountability safeguard for what could be $6 trillion in spending.
The lack of whistleblower protections in COVID-19 stimulus laws is not because Congress members have not tried. Last fall, then-Sen. Kamala Harris (D-Calif.) introduced the COVID-19 Whistleblower Protection Act, which would institute strong whistleblower protections for employees or former employees of recipients of funds under the CARES Act or other legislation meant to address COVID-19, including confidentiality and protection against gag orders; a similar bill was introduced in the House by Reps. Jackie Speier (D-Calif.) and Jamie Raskin (D-Md.). But the bills did not advance through the legislative process and were not included in the Biden administration’s stimulus proposal.
Sadly, U.S. passivity has been matched by other national governments. All have failed to appreciate and understand the life-and-death significance of the truth during the pandemic. A global pandemic requires rights with extra teeth to protect emergency whistleblowing. So far, the response has been virtually nonexistent, except for suspect hotlines without reprisal protection. It is unfortunate that, while the pandemic’s spread is slowing, credible rights for whistleblowers to prevent the next wave are at a standstill. As we brace for emergencies to come, the warning flares could be withheld and the death knells unheard.
Whistleblowing can save lives. But it is unrealistic to expect that whistleblowers will protect the public when they cannot protect themselves.