Senate passes whistleblower protections — again

Joe Davidson
Columnist May 9, 2012

It wasn’t on the schedule of events for this Public Service Recognition Week, but the Senate sent an important signal of appreciation to federal employees when it approved whistleblower protection legislation.

With unanimous consent Tuesday evening, the Senate passed the Whistleblower Protection Enhancement Act — again.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

The bill has been around a dozen years and has been approved at different times by the House and the Senate. But those earlier victories did not lead legislation to law, and there’s no guarantee that will happen this time.

“We’ve had this thrill before,” said Tom Devine, legal director of the Government Accountability Project, a whistleblower advocacy organization. “It won’t matter until it’s on the president’s desk.”

The legislation, which would expand the scope of whistleblower protections, is designed to better shield workers who can risk their careers by disclosing significant mistakes in government operations. The legislation would:

●Extend protections to Transportation Security Administration and intelligence agency employees

●Prohibit the revocation of security clearances in retaliation for whistleblower disclosures

●Allow jury trials in certain cases for workers who sue agencies that allegedly retaliate against whistleblowers

●End the Federal Circuit Court of Appeals’ monopoly on whistleblower cases for a five-year period

●Facilitate the ability of the Office of Special Counsel (OSC) to discipline officials who retaliate against employees who blow the whistle.

The importance of whistleblowers was shown this week when OSC cited the efforts of Federal Aviation Administration employees to correct situations that could impair air safety.

“OSC has been handcuffed by several court decisions that narrowed the scope of protections for federal workers,” said Special Counsel Carolyn Lerner. “I commend the Senate for acting to strengthen the whistleblower law.”

Senate approval, however, is not the same as congressional approval. Time and again, Devine and other advocates have had their hopes rise, only to be disappointed by members of Congress, who otherwise praise efforts to fight government fraud, waste and abuse.

“This is the fourth time the Senate has unanimously approved similar legislation to restore protections for federal whistleblowers,” Devine said. “The spotlight now shifts to the House of Representatives, where action is long overdue. Despite unanimous [committee] approval last November, the House Committee on Oversight and Government Reform has not yet reported the bill to the full House.”

But the House has been in the whistleblower spotlight before, without it showing the way to final legislative action.

“This reform would have been law in December 2010, except that then-incoming House leaders asked Senate allies to place an anonymous hold, blocking final enactment on grounds that they [House leaders] would produce a better reform,” Devine said. “It is past time to prove it. The House [Republicans] won the last election on a pledge to reduce government waste, fraud and abuse. That commitment has rung hollow, as there has been no action to protect those who risk their professional lives to stand against federal wrongdoing. What are they waiting for?”

A spokeswoman for the House Permanent Select Intelligence Committee said it had no comment on the Senate bill, because staffers did not have time yet to study the legislation.

House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) said he is  “pleased the Senate approved much needed legislation to protect well intentioned federal employees who expose waste, fraud, and illegal behavior in the government. In many respects, this legislation mirrors efforts being undertaken in the House and I look forward to working out differences between the House and Senate so that legislation enhancing protections for whistleblowers becomes law.” 

His spokesman said the panel's report on the legislation will be filed soon.

The seeming inability of Congress to pass the legislation is mysterious because it has bipartisan support, and everyone is against government waste. Four senators, a Democrat, two Republicans and an independent — Daniel K. Akaka (D-Hawaii), Susan Collins (R-Maine), Chuck Grassley (R-Iowa), Joe Lieberman (I-Conn.) — issued a joint statement in praise of the bill after the Senate vote.

“Whistleblowers are critical to effective, accountable government,” said Akaka, the measure’s main sponsor. “My bill gives them the protection they need. The American people deserve to know that whistleblowers will be protected when they have the courage to come forward to disclose wrongdoing.”

Devine said a major hang-up has been concern in the House that national security could be compromised if sensitive issues were revealed during whistleblower disclosures.

Grassley doesn’t see it that way.

The legislation “is especially important in establishing whistleblower protection for employees in the intelligence community for the first time,” he said, “without endangering national security.”

Lieberman agreed, saying the protections for employees of the intelligence community would “strengthen our national as well as our economic security.”

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson. Follow the Federal Diary on Twitter: @JoeDavidsonWP

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