Whistleblower legislation is especially urgent now
This op-ed was written by Government Accountability Project’s Legal Director, Tom Devine, and was originally published here.
This fall will be the season of truth for truth-tellers. Much of the nation was transfixed by the testimony of witnesses to the Jan. 6 Committee. But none of those political appointees or career civil servants who blew the whistle had credible rights against retaliation. Politicians have slathered them with lavish praise for their courage, but whistleblowers need rights, not compliments. This fall will be a test for Democrats if they back up their rhetoric with leadership to schedule votes and use their majority to pass laws. For Republicans, it will be a test whether their primary loyalty is to voters or to former President Trump.
Whistleblowers are people who use freedom of speech to challenge abuses of power that betray the public trust. Two recent events illustrate what happens when we listen to these messengers, and what happens when we allow the messenger to be silenced. This past spring, a Netflix documentary — “Meltdown: Three Mile Island” — traced how brazen nuclear safety violations in the Three Mile Island (TMI) cleanup threatened a full meltdown that could have taken out the East Coast. It was prevented because three engineers blew the whistle.
By contrast, when Congress approved multi-trillion-dollar spending increases after the last election, it failed to update America’s antiquated whistleblower law for government contractors. Not surprisingly, Justice Department Inspector General Michael Horowitz estimated there could be upwards of $100 billion in fraud. When Congress passed the $700 billion stimulus in 2009, it included best practice whistleblower protection for that spending, which was remarkably fraud- and scandal-free.
Whistleblowing laws traditionally have enjoyed unanimous, bipartisan support. That all changed when President Trump branded the impeachment whistleblowers as traitors who should be hanged. In the aftermath, it has become far too partisan an issue, with the exception of Sen. Charles Grassley (R-Iowa). The voters know better. A Marist poll of likely voters before the 2020 elections found that 86 percent wanted stronger whistleblower protection laws. Recent swing state surveys sustain the trend.
There can be no credible debate about whether whistleblowers are bipartisan. They are bipartisan because abuses of power are bipartisan — not limited to any party or ideology. The Government Accountability Project represents numerous whistleblowers challenging both the Trump and Biden administrations. Minority parties are crippled when those accused of abusing power succeed in concealing the truth. That is why both parties, and the country, need whistleblowers.
The TMI incident shows why those with the courage to speak out deserve gold-standard legal rights against retaliation. In the U.S., too often these rights are fool’s gold. We pioneered whistleblower protection but our laws are dated compared to global best practices. In key respects, they are dinosaur rights, weaker than those found in countries in Europe, Africa and the South Pacific. The stranger-than-fiction truth revealed in “Meltdown” vividly illustrates why this is unacceptable.
Weak laws matter because profiles in courage are the exception, rather than the rule. U.S. laws are a disorganized patchwork of over 60 inconsistent and piecemeal statutes passed over 70 years and are in various stages of antiquity. For example, although they provide the most significant evidence and public warnings, federal employees who blow the whistle do not have a day in court to seek justice from a jury of the citizens they risked their careers to defend. Unlike every other major sector of the U.S. labor force, their free-speech rights are limited to administrative hearings by a dysfunctional agency vulnerable to political pressure, which already faces a backlog of over 3,000 cases.
There’s a real chance this year to replace false advertising with genuine rights. We are at a crossroads for serious legislative reform that Congress can achieve before it adjourns. Eight bills would create credible whistleblower rights for government employees, including: those in the civil service; intelligence community employees; government contractor whistleblowers, whether worker or owner; all who challenge law enforcement abuses, whether citizens, victims or anyone else; Department of Veterans Affairs employees; Department of Energy and Nuclear Regulatory Commission employees; judicial employees; and even soldiers under the Military Whistleblower Protection Act.
Every legislator who is committed to fighting fraud, waste and abuse should vote for these bills. If democracy dies in the darkness, the credible flow of truth is what keeps the lights on. Will Congress flip the switch?