By Robert Brodsky
December 23, 2010A bill to enhance protections for federal employees who blow the whistle on agency waste or misconduct died in the Senate's lame-duck session on Wednesday after the measure was blocked by an anonymous lawmaker.
The 2010 Whistleblower Protection Enhancement Act (S. 372), which advocates have worked on for more than a decade, actually passed the Senate on Dec. 10 by unanimous consent.
But to secure the support of House Republicans, provisions that would have provided whistleblower protection for employees at U.S. intelligence agencies were removed when the bill was returned to the House.
GOP lawmakers had expressed concern that the Senate-passed version could lead to national security disclosures similar to those published on the WikiLeaks website.
Although supporters argued the legislation did not permit the leaking of classified information, House Democrats agreed to remove the controversial provision. The measure then passed the House on Wednesday afternoon by unanimous consent.
Some House sponsors of the long-awaited bill thought the measure was finally on its way to becoming law. A news release by Rep. Edolphus Towns, D-N.Y., the outgoing chairman of the House Oversight and Government Reform Committee and a co-sponsor of the legislation, stated on Wednesday that the bill "now heads to the president's desk for signature into law."
The House revisions, however, forced the bill back to the Senate for another vote. Before the lame-duck session expired, a single unidentified senator placed a hold on the bill, a development first reported by The Washington Post.
The 11th-hour failure to pass the bill was déjà vu for its supporters. In 2008, the Senate passed a version by unanimous consent and the House passed a similar bill, but the chambers were unable to work out their differences before the 110th Congress adjourned.
During the past decade, the measure also has faced countless procedural hurdles from Senate Republicans. Among the Republican lawmakers who have placed holds on earlier versions of the whistleblower legislation are Sens. Jon Kyl of Arizona, Tom Coburn of Oklahoma, Kit Bond of Missouri, Jim Bunning of Kentucky, and Jeff Sessions of Alabama.
Before the bill's passage in the Senate earlier this month, Kyl indicated he would block the measure unless lawmakers revised it by narrowing the circumstances under which federal employees who allege retaliation for having blown the whistle on waste, fraud or abuse could seek earlier access to the courts after first bringing their case to the Merit Systems Protection Board. Kyl at that time never technically placed a hold on the bill.
A non-congressional source who closely followed the legislation said Kyl was likely not responsible for the hold placed this Wednesday. Kyl's spokesman did not respond to a request for comment. The bill reportedly had the backing of Senate Minority Leader Mitch McConnell, R-Ky.
Supporters of the measure vowed to identify the lawmaker who placed the hold. "This holiday season, a Republican senator gave taxpayers a secret Scrooge," said Tom Devine, legal director of the Government Accountability Project, a whistleblower protection and advocacy organization. "The senator who sabotaged this bill should come out of the closet. Good government groups want to give him the 2010 Friend of Fraud, Waste and Abuse Award. There will be a relentless search to find the politician who is a cowardly enemy of taxpayers."
The Government Accountability Project pledged to continue working toward passage of the bill in the next Congress. But with Republicans taking control of the House, some supporters believe getting attention for the measure might be difficult.
The scuttled bill would have provided new or expanded whistleblower protection rights to 40,000 Transportation Security Administration baggage screeners and federal scientists who challenge what they see as censorship.
The bill also would have changed the legal process for whistleblowers alleging retaliation from their supervisors, allowing alleged victims to seek a jury trial anywhere in the country. Appellate reviews of cases involving the 1989 Whistleblower Protection Act would no longer be sent exclusively to the Federal Circuit Court of Appeals, which has ruled in favor of government whistleblowers in only three of 211 cases. And the bill would have ended a provision in existing law that protects only "the first" person who discloses the misconduct.
The act also would give the Office of Special Counsel the authority to file friend-of-the-court briefs to support employees appealing MSPB rulings. MSPB would be required to file annual reports on the outcomes of whistleblower cases, and an experimental whistleblower ombudsman position would be created to advise employees of their rights in offices of inspectors general.
By Robert Brodsky
December 23, 2010