Federal whistleblower bill passes the Senate

The Senate late Friday passed a bill enhancing protections for federal employees who blow the whistle on agency waste or misconduct, bringing the decade-in-the-making measure one step closer to finally becoming law.

The chamber approved the 2010 Whistleblower Protection Enhancement Act (S. 372) by unanimous consent, after its sponsors agreed to modify language on whistleblower access to jury trials to address concerns from an Arizona Republican.

"For far too long, federal employees have feared retaliation for disclosing government wrongdoing," said Sen. Daniel Akaka, D-Hawaii, the bill's lead author. "This legislation strengthens critical protections federal whistleblowers need to help us stop waste and abuse."

Last week Akaka requested unanimous consent to move the measure forward. But according to sources on and off Capitol Hill, Sen. Jon Kyl indicated he would stall the bill unless lawmakers revised it by narrowing the circumstances under which federal employees who are alleging retaliation for blowing 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's office did not respond to a request for comment.

This is not the first time the whistleblower bill has faced obstacles. Senate Republicans, including Kyl, Tom Coburn of Oklahoma, Kit Bond of Missouri, Jim Bunning of Kentucky, and Jeff Sessions of Alabama have stalled versions introduced during the past 10 years. In 2008, the Senate passed the act 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.

Angela Canterbury, director of public policy at the Project on Government Oversight, a watchdog group, said while the 2010 bill is not perfect, it includes "so many very good, and a few landmark, reforms."

The latest version of the legislation, which the Senate Homeland Security and Governmental Affairs Committee approved last December, would provide new or expanded whistleblower protection rights to 40,000 Transportation Security Administration baggage screeners, federal scientists who challenge censorship, government contractors and intelligence agency employees.

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 close a loophole in existing law that protects only "the first" person who discloses given misconduct.

The act also would give the Office of Special Counsel the authority to file friend of the court briefs to support employees appealing Merit Systems Protection Board 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.

The bill had 13 co-sponsors, including three Republicans, and the support of more than 60 public interest groups -- collectively known as the Make It Safe Coalition.

"Congress can and must enact a whistleblower reform law that ensures that federal whistleblowers who are punished for speaking the truth have the tools they need to fight that retaliation, and win," the coalition wrote in a Nov. 18 letter to House and Senate leadership.

But, some whistleblower advocacy organizations argue the measure does not go far enough.

The National Whistleblowers Center, the Federal Ethics Center and the National Security Whistleblowers Coalition said the bill would be a step backward because it limits rights to protected activity and court access. For example, it gives the Merit Systems Protection Board the authority to dismiss whistleblower claims without a hearing, based on affidavits executive agencies file.

"Many of its positive features are thwarted by carefully drafted fine print that will negate, in practice, the ability of employees who report waste, fraud and abuse to obtain protection," the National Whistleblowers Center said in a statement. "Without major corrections to S. 372, most federal employees who are retaliated against for blowing the whistle will continue to lose their cases."

The House version of the whistleblower legislation, sponsored by Rep. Chris Van Hollen, D-Md., has not moved out of the Oversight and Government Reform and the Homeland Security committees, but congressional sources said the measure could be revived now that the bill has cleared the Senate.

The White House has indicated President Obama would sign the bill if it reaches his desk.

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