Hearing Set for Tomorrow Morning; Passage would set “Gold Standard” for Whistleblower Rights

(Washington, D.C.) – The Government Accountability Project (GAP) applauds the House Committee on Oversight and Government Reform for advancing the most significant whistleblower rights legislation in U.S. history.

The legislation, the “Whistleblower Protection Enhancement Act of 2007,” is co-sponsored by Committee Chairman Henry Waxman (D-CA), Ranking Member Tom Davis (R-VA), and Rep. Todd Platts (R-PA). The Committee will hold a hearing on the legislation tomorrow morning and the panel is expected to mark-up and approve the legislation at a business meeting on Wednesday. GAP Legal Director Tom Devine will testify in support of the whistleblower legislation on Tuesday, February 13, at 10:00 a.m., at the full Committee hearing at 2154 Rayburn House Office Building.

Devine commented, “The Oversight Committee is close to approving a gold standard for public employee free speech rights, and a breakthrough for government accountability.” He continued, “Quick passage of legislation to restore genuine whistleblower rights also would be proof that the new Congressional leadership is serious about two primary voter concerns – effective oversight that ends a pattern of non-transparent government, and structural reform to combat corruption.”

GAP is a founding member of the Make it Safe Coalition, a non-partisan network of organizations whose members pursue a wide variety of missions that span defense, homeland security, medical care, natural disasters, scientific freedom, consumer hazards, and corruption in government contracting and procurement. These groups are united in the cause of protecting those in government who honor their duties to serve and warn the public. At the beginning of this month, the coalition held a day-long summit on the state of whistleblower rights. Devine’s testimony seeks to reflect the coalition’s across-the-board consensus on the need for and structure to achieve significant whistleblower rights reform.

The Oversight Committee’s legislation meets nearly every requirement for reform endorsed by the “Make it Safe Coalition.” Notably, it restores the mandate of the Whistleblower Protection Act (WPA), which has been gutted by judicial activism since 1994, when Congress unanimously strengthened the WPA. The legislation strengthens the due process enforcement structure for WPA paper rights, granting whistleblowers the right to challenge reprisals in federal district court with their rights decided by a jury of the taxpayers they purport to defend.

Specifically, the legislation would:

  • Codify the legislative history for “any” protected disclosure, meaning the WPA applies to all lawful communication of misconduct. This restores “no loopholes” protection and cancels the effect of the Supreme Court’s Garcetti v. Ceballos decision on federal workers.
  • Provide federal employees and contractors access to jury trials in federal district court to challenge reprisals.
  • Extend rights to all national security whistleblowers, including those at the FBI and intelligence agencies.
  • Extend rights to federally-funded contractors.
  • Restore the unqualified, original “reasonable belief” standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.
  • Make permanent and provide a remedy for the anti-gag statute – a rider in the Treasury Postal Appropriations bill for the past 17 years – that bans illegal agency gag orders. The anti-gag statute neutralizes hybrid secrecy categories like “classifiable,” “sensitive but unclassified,” “sensitive security information” and other new labels that lock in prior restraint secrecy status, enforced by threat of criminal prosecution for unclassified whistleblowing disclosures by national security whistleblowers.
  • Codify protection against retaliatory investigations, giving whistleblowers a chance to end reprisals by challenging preliminary “fact-finding” charades.
  • Bar the President from imposing ex post facto “intelligence employee” status to strip employees of their merit system rights after they assert them by filing a lawsuit.
  • End the Federal Circuit Court of Appeals monopoly on appellate review of the Whistleblower Protection Act (The Court has single-handedly gutted the WPA, leading to a 2-129 record against whistleblowers from October 1994 to October 2006), restoring all-Circuit review, as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act.
  • Restore independent due process review of security clearance determinations for whistleblower reprisal, unavailable since a 1985 Supreme Court decision.
  • Provide specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff.
  • Strengthen the Office of Special Counsel’s authority to seek disciplinary sanctions against managers who retaliate.

GAP Legislative Representative Adam Miles commented, “This legislation reflects seven years of bipartisan cooperation from oversight committees in the House and the Senate. Their commitment to protecting our families and tax dollars is reflected in this bill. The new congressional leadership should respect this commitment by scheduling ‘up or down’ votes without delay.”