GAP Releases SRC “Talking Points”; Caucus Rallies against Legislation to Protect U.S. Families

(Washington, D.C.) – The Government Accountability Project (GAP) and Public Citizen today disclosed Senate Republican Caucus “talking points” attacking S. 2663, bipartisan legislation to strengthen and reform the Consumer Product Safety Commission (CPSC). Objections to whistleblower protections were the first item in the Republican Caucus broadside. The talking points were compiled by the office of Sen. Jim DeMint (R-SC) and constitute a wholesale attack on the legislation that protects America’s families from unsafe products.

“At their core, the Republican Caucus objections are based on a belief that it is more important to back industry trade groups than it is to protect our families,” stated GAP Legislative Representative Adam Miles. “Anyone concerned about the role special interests play in the legislative process should be shocked by Sen. DeMint’s parroting of misplaced industry concerns.”

“The Republican Caucus has identified whistleblower protection as the number one reason to oppose this legislation,” said David Arkush, director of Public Citizen’s Congress Watch division. “They say the whistleblower provision will stop employers from firing disruptive employees, but the law has nothing to do with that. Industry is fighting for the right to punish people who attempt to protect the public from safety hazards, plain and simple, and legislators who support that position should be ashamed.”

The talking points appeared to mirror objections from the National Association of Manufacturers (NAM). NAM insists that whistleblower rights would lead to increased litigation, disregarding the evidence to the contrary, with some 35 other corporate whistleblower laws. GAP Legal Director Tom Devine put the Republican Caucus attack in perspective: “This choice is between covering up defective products and having a trial when necessary to protect those who warn the public. It is a no-brainer to put public safety ahead of trimming corporate legal fees.” He added, “Since 2002, Congress has rejected similar challenges to whistleblower rights five times in the areas of accounting fraud, nuclear safety, pipeline safety, ground transportation, and defense contracting. Is the safety of America’s families less important?”

The legislation may be brought to the Senate floor early next week. S. 2663 is supported by a diverse group of 46 organizations, which sent a letter in support of whistleblower rights in the bill earlier this week. Its primary sponsor is Sen. Mark Pryor (D-AR). The legislation reflects a bipartisan package negotiated by Sen. Pryor, Sen. Inouye (D-HI), and Sen. Ted Stevens (R-AK).

GAP is providing detailed response points to the concerns expressed by the Republican Caucus and trade groups that focus specifically on the legislation’s whistleblower provision.

GAP’s Responses

Objection: It would be legally impossible to fire employees.

Response: This is flat-out wrong. The whistleblower provision uses the same legal standards as four other laws passed by Congress since 2002 to protect whistleblowers, including Sarbanes-Oxley (publicly-traded corporations); Pipeline Products Safety Act; Energy Policy Act (nuclear power and nuclear weapons industry); and the 9/11 law (ground transportation workers). This is also the same standard used in the Federal Employee Whistleblower Protection Act. None of the affected industries have complained afterwards that it is impossible to fire workers because of the whistleblower laws. In fact, they are severe underdogs to prevail when they try to exercise this right. SOX whistleblowers only have won three percent of lawsuits filed.

Objection: The employer will face fines in excess of $250,000 automatically if it acts against an employee who contacts the CPSC.

Response: No “fines” are relevant unless the employee first proves illegal retaliation. Then the normal remedy for a prevailing whistleblower is to be “made whole,” which means no worse off than if the retaliation had not occurred. There is a $250,000 cap on punitive damages. These are rarely awarded in whistleblower cases, but necessary for deterrence and to send a message when there is an egregious act of covering up particularly dangerous products or especially ugly retaliation.

Objection: This will dramatically expand the scope of federal whistleblower protections.

Response: This objection recognizes that the whistleblower provision will be a significant reform that makes a difference. That is why it is essential for the bill as a cornerstone of enforcement. Without it, corporate violators will have a blank check to fire any employee who cooperates with a government investigation of its illegality.

However, there is not a single provision in S. 2663 that is unprecedented; all are in the five other laws Congress has passed since 2002 to protect corporate whistleblowers. The significant precedent would come if Congress did not protect whistleblowers about products that directly threaten consumers, breaking a pattern of five straight legislative mandates for enforcement of public health and safety laws

Objection: An employee is immunized from discipline merely by notifying the CPSC of anything the employee believes is a violation.

Response: Notification only makes the anti-retaliation rights relevant. The employee must still prove retaliation, and the employer will win even then by showing it would have acted anyway for independent reasons. Further, notification cannot be a mere belief. The bill requires the employee to pass the “reasonable belief” test of illegality, a foundation standard of credibility in civil and criminal law.

Objection: The law will be a “boon” for the trial lawyers.

Response: This red herring is an insult to the non-profit, non-partisan group of organizations that have been leading the fight for this legislation on behalf of America’s families. In addition, the Republican attack seems to be focused on an earlier version of the bill, which included a provision modeled on the federal False Claims Act. That legislation provides an incentive for employees of contractors who disclose violations of contracting law, and may recover a percentage of the money that is returned to the U.S. Treasury. The provision in the CPSC legislation that modeled this approach has been removed.