Whistling Freedom

Tom Devine

March 08, 2007

Tom Devine is the Government Accountability Project's legal director.

Effective congressional oversight requires safe channels for the flow of information. That means protecting whistleblowers, those who exercise freedom of speech when it counts, to challenge abuses of power that betray the public trust. They are the lifeblood for any credible anti-corruption campaign. Their rights will determine whether oversight uncovers the tip or the iceberg. 
 
Last month, the House Government Reform Committee lived up to its name, unanimously approving legislation to replace the discredited Whistleblower Protection Act (WPA) with a gold standard for federal employee free speech rights. House leaders have promised an imminent floor vote to deliver on their commitment for government ethics reform. There is no time for the Senate to delay catching up. Over the next two years, every crucial political battle could depend on learning the truth from whistleblowers, so there is no excuse for delay with this reform.

Active voters get it. A February Democracy Corps survey found 79 percent of regular voters more likely to support a Congress that passes “a strong whistleblower law to protect government employees from retribution if they report waste or corruption.” This was second in importance to them only to ensuring that the bureaucracy spends money on what it was approved for, instead of itself.

Whistleblowers are poised to bear witness as the public’s eyes and ears about issues vital to our families, our bank accounts, and our national security. Look what they’ve accomplished without rights:

• FDA scientist Dr. David Graham successfully exposed the dangers of the painkiller Vioxx, which caused over 50,000 fatal heart attacks in the United States.
• NASA scientist Dr. James Hansen refused to cooperate with censorship of warnings about global warming, namely that we have a short window in which to change business as usual, or suffer serious and unpredictable consequences. The country heard the wakeup call.
• Gary Aguirre’s case exposed the SEC’s possible vulnerability to massive corruption involving hedge funds, a vulnerability that could create a new wave of financial victims. 
• A host of national security whistleblowers, modern Paul Reveres, have made a record of pre-9/11 warnings that were systematically ignored. They keep warning to this day: Inside the bureaucracy, few lessons have been learned. 

Quick congressional action is imperative. Until that happens, they are defenseless. The severity of retaliatory acts by supervisors corresponds directly to how greatly they feel threatened. That translates to unprecedented peril over the next two years for whistleblowers who report wrongdoing to Congress.

The law is currently professional suicide for federal employees. The WPA has become a trap that sustains secrecy enforced by repression, rubberstamping any retaliation whistleblowers challenge. Its paper rights are worthless, due to discredited enforcement channels. Since 2003, whistleblowers’ track record at administrative hearings is 0-33 for decisions on the merits. Judicial appeals are limited to the Federal Circuit Court of Appeals, a specialty court whose pro-government bias mirrors FISA’s on domestic surveillance. It has ruled against whistleblowers in 178 out of 180 decisions on the merits since Congress strengthened the law in 1994.

Ironically, the free speech law has become the best reason why some 500,000 federal employees annually look the other way or remain silent observers after witnessing government lawlessness or waste. By contrast, corporate whistleblowers have access to jury trials in federal court to enforce their rights.

After years of hearings, the current House reform bill restores the law’s original boundaries, in the process erasing the federal impact from last year’s Garcetti v. Ceballos Supreme Court decision that stripped government employees of all free speech rights while doing their jobs. It extends seamless, “best practices” whistleblower protection to all taxpayer-financed employees and finally provides normal access to court to enforce their rights

From 2002 to 2006 Senate and House committees unanimously approved a legislative fix six times—and each time the effort was silently killed when congressional leadership refused to schedule floor votes. Last summer, Senate champions secured unanimous approval by attaching a modest version to the defense authorization bill. After White House objections, however, it vanished in the back rooms of a joint House-Senate committee.

There is little work left for the new leadership—besides scheduling votes. This issue will be a test to see if new leadership is serious about reform. If they are, in a few months those who defend the public will have a fair chance to defend themselves.