By Charles S. Clark
November 3, 2011A key House panel on Thursday approved recently revived whistleblower protection legislation, building bipartisan momentum for expanding protections against retaliation to airport baggage handlers, national security employees and some federal contractors.
The unanimous vote by 35 members of the House Oversight and Government Reform Committee moves the bill (H.R. 3289) to other committees in an effort to close what some call "judicially created loopholes" that have limited the number of whistleblowers who win legal cases.
During the markup, the bill was renamed the Platts-Van Hollen Whistleblower Protection Enhancement Act in honor of key sponsors Reps. Todd Platts, R-Pa., and Chris Van Hollen, D-Md.
"Federal employees who discover waste, abuse and mismanagement in their agency need to be able to alert agency leaders and Congress without fear of reprisal from supervisors and within the confines of the law," said Rep. Darrell Issa, R-Calif., chairman of the committee. He stressed the importance of a two-year pilot program that will extend protections to employees of prime nondefense contractors and expects a progress report in a year. Also praising the bill was ranking member Rep. Elijah Cummings, D-Md., who said it would "clarify the disclosures that are covered and correct misguided court rulings," while expanding protections to transportation security officers and employees of intelligence agencies.
Platts recapped the history of whistleblower legislation going back to 1989 and said the continuing obstacles to safeguards by courts and the Merit Systems Protection Board have meant "we're back to where we started." Only three of 219 whistleblower cases that have made it to appeals courts have prevailed, he said.
Del. Eleanor Holmes Norton, D-D.C., bemoaned the "astonishing refusal" of courts and the board to assure protections for employees who disclose damaging information by using "legal technicalities. In this age of WikiLeaks, I'd hate to wake up and find out about something through WikiLeaks instead of an employee coming forward."
During the markup, the panel approved an amendment by Rep. John Tierney, D-Mass., intended to ease stress on whistleblowers in national security agencies by allowing them to speak to their direct supervisors instead of necessarily going to the agency chief.
The panel defeated an amendment by Rep. Bruce Braley, D-Iowa, who invoked the Tea Party -- both the original and the modern -- in calling for restoration of earlier language allowing whistleblowers a trial by jury. Issa, though he had voted for such a right in the past, opposed that proposal as a "bonanza for the trial lawyer bar" that would kill the bill in the Judiciary Committee. Committee members approved an amendment by Rep. Jackie Speier, D-Calif., requiring a Government Accountability Office study of the effectiveness of federal whistleblower hot lines.
The bill would provide protections aimed at scientific freedom, require better definitions of terms such as "classifiable" and "sensitive security information," and allow the Office of Special Counsel to seek disciplinary accountability against supervisors who retaliate against whistleblowers as well as file friend of the court briefs.
The bill's re-emergence was applauded in a statement by a bipartisan coalition of whistleblower protection and openness advocacy groups that includes the Government Accountability Project, American Federation of Government Employees, the Liberty Coalition, the National Taxpayers Union, OpenTheGovernment.org, Project on Government Oversight, Taxpayers Protection Alliance, and the Union of Concerned Scientists.
POGO Director of Public Policy Angela Canterbury said in an email to Government Executive: "We are gratified that this critical reform cleared the committee unanimously. It will go a long way to better protect whistleblowers and taxpayers. However, we will continue to work to strengthen the bill as it moves to the House floor."
The coalition favors a Senate version (S. 743) of the bill that has cleared the Senate Homeland Security and Governmental Affairs Committee; it includes some limited whistleblower access to jury trials and reviews by circuit courts. Additionally, the groups "would like to see H.R. 3289 strengthened by removing summary judgment for the Merit Systems Protection Board, preventing the administration from choosing to appeal substantial impact cases to the court that consistently rules against whistleblowers, and addressing new developments in case law regarding the marking of unclassified information and agency rule-making."
MSPB had no comment on the legislation.
CORRECTION: This story has been corrected to reflect that the panel approved the amendment by Rep. Jackie Speier, D-Calif., requiring a Government Accountability Office study of the effectiveness of federal whistleblower hot lines.
By Charles S. Clark
November 3, 2011