|Chairman Issa (center) and Ranking Member Cummings (Issa's left).|
By DANA LIEBELSON
With what Ranking Member Elijah Cummings (D-MD) said was a "tremendous spirit of bipartisanship" yesterday, members of the House Committee on Oversight and Government Reform unanimously passed the "Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011" (WPEA).
The House bill (H.R. 3289) and a similar measure in the Senate (S. 743) have the potential to save billions of taxpayer dollars by protecting legitimate whistleblowers who expose waste, fraud, and abuse. POGO has been a strong supporter of this bill, which modernizes and expands the Whistleblower Protection Act of 1989.
The WPEA was introduced in the House by Oversight Committee Chairman Darrell Issa (R-CA) and was co-sponsored by the Committee’s Ranking Member, Elijah Cummings (D-MD), as well as Reps. Todd Platts (R-PA) and Christopher Van Hollen (D-MD), the co-sponsors of last year’s version of the bill.
Ranking Member Cummings deserves credit for proposing to change the name of the bill to honor Reps. Platts and Van Hollen for their longstanding commitment to whistleblower reforms. The “Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011” was approved by the Chair and Committee. POGO finds it fitting.
Restoring and modernizing federal whistleblower protections has widespread support from both sides of the aisle. More than 400 taxpayer, environmental, science, consumer, faith-based, civil rights, and transparency groups have expressed their support, in addition to the more than 50 organizational members of the Make it Safe Coalition.
Provisions in the bill
The House bill protects lawful disclosures by federal employees for more government accountability (for a more comprehensive look at whistleblower reform, click here). If passed, the WPEA would provide intelligence community workers safe, legal channels for disclosures of wrongdoing, and for the first time, the ability to have a trial in district court.
The bill also includes a two-year pilot program to extend protections to federal contractors, which POGO supports. However, the bill currently is modeled on existing protections for defense contractors, which haven’t worked particularly well. POGO would like to see this pilot program succeed, and therefore is recommending the inclusion of the best practices found in the whistleblower protections for the recipients of Recovery Act funds.
POGO’s director of public policy, Angela Canterbury, said that POGO is particularly pleased with the Chairman’s and Committee’s strong support of the provisions to protect intelligence community workers. POGO also strongly supports two amendments that were added to the bill—one by Rep. John Tierney (D-MA) to ensure warnings made by intelligence community whistleblowers to supervisors in the chain of authority are also protected, and an amendment by Rep. Jackie Speier (D-CA) asking for a Government Accountability Office (GAO) report on how agency whistleblower hotlines are working.
A vigorous debate
A third amendment by Rep. Bruce Braley (D-IA) that would allow whistleblowers access to jury trials was not approved. Federal whistleblowers currently do not have normal access to the civil justice system or “a day in court.” H.R. 3289 does allow for bench trials in district courts, a solid step forward, while the S. 743 allows for a limited right to a jury in district courts for a 5 year “test” period. POGO has long advocated for federal whistleblowers to be able to exercise their right to a jury trial, as the laws protecting most private sector whistleblowers and federal workers who face discrimination can have their claims heard by a jury of their peers.
Rep. Braley in 2010.
When Braley introduced his jury trial amendment—an amendment POGO strongly supported—a vigorous debate followed. Braley said he offered his amendment in the “Spirit of the Tea Party”—both the original that birthed our revolt from the oppression of King George and the recent Tea Party rallies where the Constitution is often celebrated. He said the right to a jury trial is grounded in the Declaration of Independence and ensconced in the 7th Amendment of the Constitution. Rep. Patrick Meehan (R-PA) objected to the amendment over what he described as the “delicate balance” of frivolous lawsuits and cases with merit. Braley countered that there were already safeguards built into the civil justice system for that concern. Meehan then protested that using those procedures complicates things in court, and that Congress should spare judges that burden.
Not much of this had to do with how the safety net of access to court for the few who need it can make the entire administrative system more functional—beginning with improving organizational culture to take whistleblower claims and rights more seriously from the start. Also, no one mentioned how by all reasonable calculations the number of cases that would proceed to a jury trial would be rather minimal—conservatively estimated to be no more than 50 cases per year.
In the end, Issa explained the politics of the provision. When asked, Issa acknowledged he voted in favor of versions of the bill that passed in the two previous Congresses which included access to jury trials for federal whistleblowers. But, he said, in order to prevent the Judiciary Committee from gutting the access to district court altogether and allow the good reforms in the bill to pass the House, it would not be possible to include Braley's amendment. In addition, he suggested that there might be room to allow whistleblowers going before a jury with other claims to also have their whistleblower claims heard by that jury.
A Step Forward
The unanimous passage of this bill is a promising step towards protecting those who blow the whistle on wrongdoing in the federal government—but the fight isn’t over. The Committee’s decision means the bill now goes before the full House for a vote, and improvements are still needed. A similar bill cleared a Senate committee last month and is awaiting a vote in that chamber.
“Though the legislation passed by the Committee today does not contain every reform we have sought, it will go a long way to improve the status quo for whistleblowers and increase government accountability to taxpayers,” said Canterbury. “We’ll keep working to strengthen the bill and push for enactment before the end of the year. It’s time for Congress to deliver on their promises for more transparency and accountability.”
Dana Liebelson is POGO's Beth Daley Impact Fellow.