Groups Seek Whistle-Blower Protection in Bailout Legislation

By Joe Davidson
Wednesday, September 24, 2008

Amid the swirl of activity on Capitol Hill surrounding legislation for a $700 billion bailout of financial giants is a little-noticed effort to protect Frank and Flo Fed if they reveal things their agencies are doing wrong.

Good-government groups have long wanted to strengthen protection for whistle-blowers and they had a good chance to get such legislation passed before the financial markets took a dive. Now that all the attention is on rushing the bailout through Congress, those groups are trying to get on board.

Yesterday, 40 organizations sent a letter to the Senate Banking, Housing and Urban Affairs Committee and the House Financial Services Committee urging members to include whistle-blower protection in the bailout legislation.

"At a minimum, any credible solution must address one of the current crisis' fundamental causes -- corruption and other abuses of power sustained by secrecy," the letter said. "Otherwise, the taxpayers could end up giving $700 billion more to repeat the same disasters. Congress must prove it has learned this lesson. Any genuine solution must be grounded in transparency, with all relevant records publicly available and best practice whistleblower protection for all employees connected with the new law."

The letter was signed by a variety of organizations from across the political spectrum. They include the American Library Association, the Union of Concerned Scientists, the Liberty Coalition, the Society of Professional Journalists, the Government Accountability Project and the Project on Government Oversight.

Whistle-blower coalition leaders say they already had more than enough support to secure amendments to the Whistleblower Protection Act that was passed in 1989. The House and Senate overwhelmingly approved separate versions last year, but efforts to reconcile them have languished until recently.

"We are working with other sponsors and supporters of the bill to try to get it enacted before adjournment," said Leslie Phillips, communications director for the Senate Homeland Security and Governmental Affairs Committee.

But whether that's as part of the bailout remains to be seen.

One factor Congress has to consider is the White House veto warning against the House version. "It could compromise national security, is unconstitutional, and is overly burdensome and unnecessary," says the threat.

But if the House language is included in the bailout legislation, it would be very tough for the president to follow through on that threat.

One way or another, the coalition hopes the amendments become law soon. They are designed to close looming loopholes that are the result of court decisions.

While the law sought to protect whistle-blowers for "any" lawful disclosures of government wrongdoing, the U.S. Court of Appeals for the Federal Circuit has turned the definition around so much that it's reminiscent of President Bill Clinton saying: "It depends on what the meaning of the word 'is' is."

Now, "any" no longer applies "if the disclosure is made to co-workers, supervisors or others in the chain of command, or those suspected of wrongdoing; if the disclosures are made during the course of doing one's job duties; if the disclosure challenges illegal or similarly improper policies; and if the whistleblower is not the first to make a disclosure," said Tom Devine, legal director of the Government Accountability Project.

The amendments would make "any" mean "any."

Another sore point with the coalition is a 1999 court decision that Devine says makes it almost impossible for whistle-blowers to qualify for protection, regardless of context. While Congress said employees must reasonably believe a disclosure is about misconduct, the court said workers must prove the bad deeds with "irrefragable" evidence.

Merriam-Webster says irrefragable means "impossible to refute," and that's an almost impossible standard to meet. The amendments would restore the reasonable-belief standard.

The court's interpretation leaves whistleblowers frustrated and angry. Many put their careers on the line to make government honorable, with nothing but scars to show for it.

Ask David Ross, who was a Food and Drug Administration doctor two years ago when he warned managers about evidence of fraud involving an antibiotic drug the agency had approved. The drug, Ketek, was linked to liver failure and death.

"I did everything right," Ross said. "I tried to work through the system."

But he found himself marginalized and forced out of the agency. The court's rulings left him cold. "Because of the court's impossibly high standard, I was left with fewer rights than a criminal -- all because I was trying to prevent more deaths," he said. "I did not even bother asking for whistle-blower status, because it would have been like painting a target on my back."

A lot can go wrong when a massive bailout is rushed through the legislative process. Whatever that process produces, federal workers shouldn't be afraid to speak up, and they should be protected when they do.

Contact Joe Davidson atfederaldiary@washpost.com.

View all comments that have been posted about this article.

© 2008 The Washington Post Company