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Has the bell tolled on whistleblower legislation?

By Joe Davidson
Thursday, December 16, 2010; B03

It seemed so close.

After 12 years of working to improve protections for federal employees who blow the whistle on government waste, fraud and abuse, Congress was on the verge of passing legislation to make that happen.

For whistleblowers and their advocates, those 12 years included compromises with opponents and fights with friends, including a late-breaking one this week.

After the Senate approved the Whistleblower Protection Enhancement Act on Friday, using a unanimous consent procedure, the greater protections seemed in sight. The House was poised to consider the bill, and advocates could almost taste victory.

Then Rep. Peter Hoekstra (R-Mich.) put up a roadblock that could derail the bill.

Hoekstra has objected because he thinks that, as the top Republican on the House Intelligence Committee, he had not been properly consulted about the measure, according to congressional sources. Republicans also have decided to link the whistleblower bill to the controversy over the classified information revealed by WikiLeaks.

Calls and e-mails to Hoekstra's office requesting comment were not returned. But Rep. Darrell Issa (R-Calif.), who had favored the legislation, now thinks it should not be considered during the waning days of the lame-duck session.

Citing "new areas of concern that have been raised by the WikiLeaks" disclosures, Kurt Bardella, a spokesman for Issa, said the congressman believes the measure should be considered next year, when Republicans control the House.

The irony here is that as legitimate avenues for exposing not classified information but valid, documented concerns about government operations are blocked, the more attractive routes such as WikiLeaks become.

Issa's conversion from supporting the legislation to wanting it held until next year amounts to a major blow for the bill's immediate prospects.

With so little time left on the congressional calendar, a suspension of the House rules would be required for the measure to pass before members go home. It takes a two-thirds vote to suspend the rules, which means supporters of the legislation would need 40 to 45 Republicans to vote with the Democratic majority in favor of the measure.

Opposition by Issa, who is set to be chairman of the Oversight and Government Reform Committee next year, makes it much more difficult to win the needed GOP support.

If enough Republicans go along with the attempt to paint civil servants who try to correct the waste, fraud and abuse - which both Republicans and Democrats routinely denounce - with the same critical brush that's reserved for those who leak classified information, getting the needed supermajority could be tough.

"We're optimistic that, after reviewing the 12-year history of this carefully crafted compromise, no House office will feel their voices haven't been heard," said Tom Devine of the Government Accountability Project, a whistleblower advocacy organization. His words were optimistic, but his voice reflected growing concern. "After 12 years, every one of these issues has been put under a microscope and reflects a careful compromise."

The feature of the legislation that supporters consider the most significant is a five-year pilot project allowing jury trials, in certain situations, for workers who take legal action against agencies that allegedly retaliate for exposing wrongdoing.

Hoekstra isn't the only one unhappy with the legislation. After the bill passed the Senate, the National Whistleblowers Center, which also supports whistleblower rights, sent a letter to Congress denouncing the measure.

"If this mistake becomes law, it will set back current rights and will legalize the firing by federal agencies of whistleblowers that report violations of the law," the letter said.

That generated a quick and vigorous response from more than 90 organizations supporting the measure. In a letter to the House, the organizations said: "While [the bill] does not include every reform that our community has sought, it will dramatically improve the status quo - for whistleblowers and taxpayers. Please do not delay in making this whistleblower protection legislation, with strong bipartisan support, law. If you are serious about responding to American voters, reducing the debt, and ensuring the integrity of government, you will do all you can to make whistleblower reform a reality this year."

In another open letter, 30 whistleblowers lashed out against the National Whistleblowers Center, saying the center's stance "very well could leave us in peril. We cannot reconcile this recklessness given NWC's consistently expressed advocacy for strengthening whistleblower rights." The legislation, the whistleblowers added, provides "us stronger rights than ever before in our history."

It's unlikely the House will make the changes the whistleblower center wants, and there's no chance the Senate will reconsider the bill before it adjourns. So while the family feud within the whistleblower community isn't enough to derail the legislation this year, the unexpected moves by Republicans could be.

Rep. Chris Van Hollen (D-Md.), the chief sponsor of the measure in the House, said he is "continuing to work with Mr. Hoekstra and all my colleagues in the House to discuss their concerns and move forward with the Senate-passed bill."

Time is running out.

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