The Project On Government Oversight has advocated for federal whistleblower reforms for almost forty years, fighting to preserve the right of whistleblowers to expose government waste, fraud, and abuse, while also fighting for retaliation protections for those who come forward. For years, we’ve helped to lead the Make It Safe Coalition (MISC), a group of diverse advocates who lead the charge on reforms for federal whistleblower protections. Today, we joined a Coalition statement marking the 30th anniversary of the Whistleblower Protection Act (WPA).
While anniversaries are often cause for celebration, they also provide opportunity to reflect on how far we’ve come, and the path ahead. Federal whistleblowers have prevented or stopped countless incidents of waste, corruption, abuse, and illegality under the authorities of the WPA, but as times change to reveal new problems, the law must evolve in kind. We need leaders in Congress to pass the next round of common sense reforms to the WPA. The Coalition’s letter highlights the need for these reforms and calls on Congress to take swift action.
Make It Safe Coalition Statement on 30th Anniversary of the Whistleblower Protection Act of 1989
April 10, 2019 marks the Whistleblower Protection Act’s (WPA) 30th anniversary. The Make It Safe Coalition’s (MISC) Steering Committee commemorates the anniversary with a call to bridge the still-wide gap between the rights and the reality of implementing that landmark legislation’s free speech principles. The Act became effective on April 10, 1989. Since then the MISC, a non-partisan, trans-ideological good government coalition, has grown to 75 member organizations committed to the rights of whistleblowers. Inexcusably, federal whistleblowers still have weaker rights than their contractor counterparts and nearly all private sector whistleblowers.
Congress unanimously enacted rights in the Whistleblower Protection Act four times – first, as part of the Civil Service Reform Act of 1978, second, in the WPA, third, in the 1994 amendments, and fourth, in the enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA), a law that took thirteen years of advocacy in Congress until it passed. Despite this clear mandate, Congress had to restore these rights three times after hostile judicial activism functionally canceled them; a trend so far halted by the WPEA.
If paper rights have survived, however, actual protection is on life support. The commitment of administrative agencies charged with enforcement has been a roller coaster. Currently, the U.S. Merit Systems Protection Board (MSPB), responsible for federal employee administrative due process, does not have any Members, so justice is being denied by default. Furthermore, in any given year federal government whistleblowers have had only a five to ten percent chance of winning a ruling that their rights were violated. This is a devastating reality for those brave employees who have risked so much to protect the public.
In the upcoming MSPB Reauthorization bill, Congress can finish what it has started four times before. In 2012, Congress left unresolved three basic but fundamental rights: (1) jury trials for federal workers, (2) protection against retaliatory investigations, and (3) temporary relief such as job reinstatement while a lawsuit proceeds. The first two rights have been standard provisions in all private sector whistleblower laws since 2002. To put this disparity in context, a federal contractor employee blowing the whistle has stronger due process rights to challenge retaliation than a federal employee disclosing the same misconduct. The need for temporary relief is particularly vital for whistleblower cases that often take 5-10 years to adjudicate. The MISC believes it will only get worse. The MSPB’s backlog is now 2,000 cases, because since 2016 it has been unable to issue final decisions. This wastes valuable resources and taxpayer dollars.
Congress needs to light the way for the next decade of whistleblowers to work without fear or the stigma associated with whistleblowing. Whistleblowing should be celebrated as heroic, because they risk everything to protect the public from government misconduct such as gross waste of taxpayer dollars, national security lapses, and public health violations.
Statements by Steering Committee members are below:
Marcel Reid/Michael Cray, ACORN 8:
Like the first whistleblower protection law passed by the Continental Congress on July 30, 1778 and the False Claims Act signed into law by Abraham Lincoln on March 2, 1862 — Truth, Transparency & Accountability are the principles ACORN 8 was founded on. The Whistleblower Protection Act helps to ensure that those principles can be adhered to in the public sector.
Tom Devine, Government Accountability Project:
“The Whistleblower Protection Act of 1989 was the global pacesetter to establish free speech rights. When Congress passed it, the U.S. was the world’s only nation with a national whistleblower law. Now there are 48, and this month a European Union Whistleblower Directive will become the law for those 27 nations. But the WPA’s promise will keep being an illusion until Congress provides whistleblowers with justice from juries, protection against criminal witch-hunts and temporary relief while cases drag out for years. Federal whistleblowers expose abuses of power that harm America the most. It is unacceptable that they are the only significant sector of America’s labor force where whistleblowers cannot enforce their rights through a trial by jury. They are the only significant group without the right to legally challenge retaliatory investigations as soon as they are opened. Congress needs one more mandate to enforce the rights it unanimously, repeatedly has passed.”
Pete Sepp, National Taxpayers Union:
For many years, the taxpayer advocacy community has affirmed with one voice that whistleblower protection is taxpayer protection. It is vital for public officials on all points of the ideological spectrum to embrace and celebrate the fact that courageous public servants are willing to come forward and protect our nation from waste, fraud, and abuse the resources that everyday Americans have provided to government. But now those same public officials must honor whistleblowers, by ensuring that the laws give them the full recognition they deserve as guardians of the Treasury. On the 30th Anniversary of WPA, we are reminded not only of achievements, but of challenges.
Danielle Brian, Project On Government Oversight:
“Thirty years of federal whistleblower protections have empowered countless federal employees to expose abuses of the worst kind, often preventing unthinkable catastrophes or exposing corruption or waste of taxpayer dollars. But like any longstanding statute, time and experience have revealed weaknesses in the law that must be rectified. We cannot expect whistleblowers to protect us if we’re not willing to protect them for coming forward. We should, at a minimum, extend the right to a jury trial, explicitly protect whistleblowers from retaliatory investigations, and increase access to temporary stays of personnel practices while retaliation cases are ongoing. We look forward to continuing our work with Congress to strengthen whistleblower protections for all federal employees.”
Shanna Devine, Public Citizen’s Congress Watch:
“Federal whistleblowers are our nation’s most dedicated civil servants, as they risk their professional and personal security to hold our government accountable for abuses of power that betray the public trust. Congress has a duty to protect these courageous truth tellers by providing them with the same protections afforded to whistleblowers in the private sector, including a fair day in court by their peers.”
Jacqueline Garrick, Whistleblowers of America:
“Whistleblowers of America is grateful for the protections afforded to employees for the last 30 years by the WPA, but there is still more work that needs to be done for ethical federal employees to have equal protections and rights under the law as other American workers. The residual effect of retaliation and workplace trauma can result in years of suffering from posttraumatic stress, depression, and suicide. Employees need a Workplace Promise that promotes their protections and allows for continuous process improvements.”