Washington, D.C. – The Government Accountability Project (GAP) today released a letter, sent from the leaders of one House Committee to another, supporting an overhaul of the nation’s whistleblower laws that was added by the Senate to the FY 2007 defense authorization bill. House Government Reform Committee Chairman Tom Davis (R-VA) and ranking Democrat, Henry Waxman (D-CA), sent the letter to House Armed Services Committee Chairman Duncan Hunter (R-CA) and Ranking Member Ike Skelton (D-MO), leaders of the House delegation for a joint conference with Senate counterparts charged with merging Senate and House versions.
Representative Todd Platts (R-PA), pioneer sponsor of parallel House legislation, initiated the letter. It calls for House conferees to plug a government accountability loophole created in May by a Supreme Court ruling, Garcetti v. Ceballos, which left government workers without constitutional free speech rights to challenge illegality when carrying out their job duties.
In June, by unanimous consent the Senate added an amendment to the defense authorization bill to restore the judicially-gutted Whistleblower Protection Act (WPA). Since the House version of the defense bill does not include whistleblower protection, the joint conference committee will strive to finalize a consensus sometime after the August recess.
“Support for the whistleblower amendment in the Senate is likely to remain strong,” says GAP Legislative Representative Adam Miles. “This leaves the decision to protect public servants largely in the hands of Chairman Hunter, who could guarantee a government accountability breakthrough for national security by supporting the Senate provision.”
Although the House defense bill does not have a whistleblower amendment, many similar reforms are included in two House bills: H.R. 1317, which passed the Government Reform Committee 34-1 in September 2005; and H.R. 5112, aimed at protecting national security whistleblowers, which passed 34-0 in April. The letter from Reps. Davis, Waxman, and Platts notes that “the Government Reform Committee has been actively working on the issue of whistleblower protections since 2000…The Committee’s experience has demonstrated repeatedly that whistleblowers can be America’s first line of defense against threats from outside, as well as from bureaucratic breakdowns within the government that can be equally dangerous. Committee investigations and hearings repeatedly have confirmed this conclusion.”
Senate leadership previously refused to schedule a floor vote on the whistleblower protections at the urging of the Department of Justice (DOJ). The DOJ, while refusing to ever testify at any House hearings on whistleblower rights and with no public record against whistleblower protections in that body, is now demanding that the conferees strip out all Senate provisions. These provisions were, in summary, adopted after two hearings, three unanimous committee approvals, the support of four senior committee chairmen, and last month’s vote.
“The Senate vote was a good government breakthrough that came despite back room arm twisting by the Department of Justice,” stated GAP Legal Director Tom Devine. “The real test will come in the House. Will the Armed Service Committee walk the walk of independence from the administration, or will there be a back room rubberstamp for the administration, leaving homeland security at the mercy of a bureaucracy that hasn’t learned the lessons of 9/11? Voters should pay attention to this one. It will make a real difference for America’s safety.”
Thirty-five citizen organizations in the Make it Safe Coalition are urging House conferees to support the reforms.
GAP has updated its research of WPA court decisions through August 7, 2006. Whistleblowers have a 2-53 record for decisions on the merits at the administrative level since 1999, and not a single victory since 2003 when the Bush administration appointed a new Chairman of the Merit Systems Protection Board. At the Federal Circuit Court of Appeals, which holds a monopoly over judicial interpretation of the WPA, whistleblowers have a 1-122 won-loss record for final decisions on the merits since Congress voted to strengthen the WPA in 1994. The Senate amendment would reassert legal rights for government employees by overturning the activist Federal Circuit decisions that underlie the abysmal record for whistleblowers at the administrative and appellate level. Federal Circuit decisions routinely have ignored Congress’ explicit, repeated intention to protect whistleblowers for “any” lawful disclosure of misconduct. The legislation also ends the Federal Circuit’s monopoly over the WPA.
The Senate amendment came in response to a May Supreme Court decision, Garcetti v. Ceballos, which canceled constitutional free speech rights for public employees who blow the whistle during the course of their job duties. The Supreme Court ruled that first amendment protection for on-the-job speech is unnecessary because a “powerful network of legislative enactments” protects employees for telling the truth on the job. But the Federal Circuit’s activist decision (Willis v. Dept. of Agriculture, 1998) already had erased WPA coverage for employees who disclose waste, fraud, abuse, or illegality pursuant to their job duties. The Supreme Court decision effectively left public employees without any constitutional or statutory protection for on-the-job whistleblowing disclosures. If enacted into law, the Senate amendment would specifically address this government accountability loophole.