For 25 years, the Whistleblower Protection Act has promised protections to federal workers who blow the whistle on waste, fraud, and abuse in the government. As we celebrate the anniversary of this preeminent law, we’d like to take a look at some of the developments in whistleblower protections in recent years. Though progress has been made, we still have a long way to go.
After more than a decade of advocacy by the Project On Government Oversight and our partners both in the government and in civil society, the protections set out in the original Whistleblower Protection Act have been improved greatly by the Whistleblower Protection Enhancement Act of 2012 (WPEA), legislation signed into law in December 2012. A real victory, the WPEA closed judicially created loopholes, expanded coverage of the original protections, and codified an “anti-gag” statute championed by Senator Chuck Grassley (R-Iowa).
Unfortunately, the Whistleblower Protection Enhancement Act hasn’t been fully implemented properly.
In a study released last week, Senator Grassley reviewed implementation of the robust “anti-gag” provisions in the WPEA, giving each of the executive branch’s 15 Departments a letter grade based on the Departments’ own documentation. The study found implementation to be sorely lacking across the board. The highest grade was a B for the Department of the Treasury, but most agencies fell into the D to F categories. The review highlights the fact that most Departments’ nondisclosure agreements violate the anti-gag provisions, thwarting efforts to protect would-be truthtellers from retaliation by their employers. The “anti-gag” provision is meant to supersede nondisclosure agreements.
In an op-ed on the review, Senator Grassley said, “Sweeping dirt under the rug violates the golden rule of Housekeeping 101. Out of sight may be out of mind, but covering it up doesn’t make it clean.” We and the other members of the Make It Safe Coalition, a support coalition for whistleblowers and whistleblower advocates, couldn’t agree more.
Senator Grassley has proven to be a tireless champion for whistleblower protections, recently testifying in a House Oversight hearing on the FDA’s spying on whistleblowers earlier this year. POGO’s Angela Canterbury also testified at that hearing. POGO is very pleased that Senator Grassley announced this week his intent to form a Whistleblower Protection Congressional Caucus for Members of Congress to become more informed and to more formally organize support for whistleblowers and government accountability.
An obvious lowlight for whistleblower protections in the government is the lack of protections within the intelligence community. Whistleblowers handling classified information have very limited legal channels through which to report wrongdoing—a gap in protections that has been noted by Edward Snowden and has affected other NSA whistleblowers such as Tom Drake. Presidential Policy Directive 19 aims to cover whistleblowers with security clearances, but the directive is an internal system without independent oversight or adjudication. It also does not explicitly cover intelligence community contractors. Reports on implementation have been slow to surface.
However, thanks to Senators Susan Collins (R-Maine) and Ron Wyden (D-Ore.), the Senate Select Committee on Intelligence included some protections for national security and intelligence community whistleblowers in the Intelligence Authorization Act for Fiscal Year 2014. The proposed reforms would provide statutory protections for those with security clearances or access to classified information—a real first. The bill is currently being reconciled with the House version and hopefully will soon become law.
A development involving “national security sensitive” positions is particularly troubling. The deeply flawed Kaplan v. Conyers, Northover, and MSPB court decision stripped federal employees of their right to appeal a personnel action—which may even include discrimination or retaliation for whistleblowing. The court held that federal agencies have unlimited discretion to take adverse actions pertaining to the eligibility to occupy a national security position without any review. In the wake of this decision, agencies may abuse the designation of “national security sensitive” to strip employees’ rights to blow the whistle, even if the employees are not accessing classified material.
Following the decision, POGO’s Angela Canterbury testified before the Senate Homeland Security and Governmental Affairs Subcommittee on Efficiency and Effectiveness of Federal Programs and the Federal Workforce. In her testimony, Canterbury called for congressional action, saying, “It’s time for Congress to be far less deferential to this Administration and others on claims of national security that undermine our liberties and cloak wrongdoing. Congress must assert its constitutional powers to restore the balance between the branches of government.”
Bipartisan legislation introduced in the House by Delegate Eleanor Holmes Norton (D-D.C.) and seven cosponsors, H.R. 3278, and in the Senate by Senator Jon Tester (D-Mont.) with original cosponsors Senators Grassley and Claire McCaskill (D-Mo.), S. 1809, aims to do just that. The reform would reverse the activist court decision, clarifying the civil service and whistleblower protections Congress always intended.
In a press release from the Make It Safe Coalition celebrating the 25th anniversary of the WPA’s passage, Canterbury notes:
Today marks a quarter-century of a landmark law that promises to protect all Americans and their tax dollars by preventing the suppression of government wrongdoing and the intimidation of truthtellers. But all federal workers still do not have a fighting chance at justice when they suffer for having blown the whistle on waste, fraud, and abuse. In spite of critical recent reforms with extraordinary, bipartisan support for whistleblower protections—more must be done. In particular, our national security workforce—including contractors—must have real protections for making legal disclosures of wrongdoing.
To fully honor the strides made in the Whistleblower Protection Act 25 years ago, we need to continue to fight for the rights of all whistleblowers, not just some.