Déjà Vu—Again—for Whistleblowers

Last week, there was another big push in the 14-year effort to upgrade protections for federal workers who blow the whistle on waste, fraud, abuse, and illegality. On Friday, the last day before Congress broke for the elections, we and our allies in Congress were working on a miracle—we tried to move the Whistleblower Protection Enhancement Act (WPEA, S. 743, as amended) through both chambers with passage by unanimous consent. It was a heroic effort by the very committed cosponsors of the bill, their staff, and our allies, but in the end, there wasn’t enough time. Again.

Last week’s emails and calls to Members of Congress and letters of support almost pushed it over the finish line. By Friday morning we learned the bill was expected to pass the House by unanimous consent around noon, and that the Senate was poised to follow suit. We were truly thrilled! But it was a short-lived victory dance, as bumps developed in this all-too-familiar road. We heard a lot of things about what happened to derail the bill, including that House Speaker John Boehner had decided not to pass any bills by unanimous consent on that last day before breaking for the elections (in fact, they didn’t) and that the “intelligence community” had concerns about parts of the bill—parts that, in fact, were no longer in the bill! In the end, we were told that the last minute issues could not be resolved in time. Just as in years past, an unforeseen obstacle arose at the eleventh hour, and Congress failed to pass the bill.

But the fight isn’t over yet.

Even though legislators in both chambers have left D.C. to woo voters in their home states for campaign season, the House and Senate are expected to convene pro forma sessions until the November elections. Pro forma means a few Members gavel in briefly and usually conduct very little formal business. It also means that Congress has not officially adjourned. So, there is a possibility that the WPEA could pass by unanimous consent in pro forma session.

While that may be another long-shot, we are placing our bets on this bill getting done one way or another this year. Senators Akaka (D-Hawaii), Collins (R-Maine), Grassley (R-Iowa) and Representatives Issa (R-Calif.), Cummings (D-Md.), Platts (R-Pa.), and Van Hollen (D-Md.), and their other cosponsors are extremely committed and their staff are working extremely hard to make this bill law. The WPEA would be an important part of the legacies of Senator Akaka and Representative Platts, both of whom are retiring this year.

The prospects for passage this year are better than fair, in part because the bill now contains only previously agreed upon, non-controversial reforms. The pending version of the WPEA is a reconciled version of the House and Senate bills (S. 743, as amended in the House). Unfortunately, some of the reforms for which we fought hardest were the ones removed in order to get the agreement necessary for passage. At the beginning of this Congress, we were told that jury trials for federal whistleblowers and the new protections for national security and intelligence community workers would never pass the House. POGO and our partners committed to doing everything we could to try to convince members that these essential reforms would dramatically improve accountability—a goal with nearly ubiquitous support.

Indeed, POGO and our allies spent the past 21 months meeting with members and their staffs, supplying information, applying strategic pressure, shoring up support, helping whistleblowers be heard, garnering media attention, working with key allies, facilitating negotiations—all to no avail. In the end, we were told the bill would certainly be blocked if it contained those reforms. It was a very hard pill to swallow given the amount of energy, heart, and soul invested by so many of us—and the high stakes for whistleblowers and taxpayers.

S. 743 (as amended by the House and Senate cosponsors) is the Senate-passed bill, with a few technical corrections and the following exceptions:

• Sunset for all circuit appellate court review was shortened from five years to two years (section 108)
• Limited district court access and jury trials for certain whistleblower cases and Merit Systems Protection Board summary judgment authority in certain whistleblower cases were eliminated (previously sections 117 and 118)
• Expanded procedures for making classified disclosures to Congress was eliminated (previously section 119)
• Title II, regarding Intelligence Community whistleblowers and security clearance protections, was removed entirely

Every reform in the scaled-back version of S. 743 is a common-sense reform that reflects a true bipartisan agreement to enhance protections for federal whistleblowers and increase government accountability to taxpayers. To read a summary of the reforms in S. 743, please click here.

Unfortunately, every day that the bill does not become law means the public is deprived the benefit of disclosures from federal government whistleblowers about fraud, waste, and abuses, which could remain ongoing. Every day that passes means more fear and intimidation of would-be whistleblowers and more suffering by those who stick their necks out for us. Every day without these reforms means the good guys in government don’t have the tools they need to protect whistleblowers and taxpayers.

Let’s continue to do all we can to ensure Congress finally sends these critical reforms to the President’s desk this year. Doing the people’s work is more important than campaigning, and when it comes to safeguarding taxpayer dollars, our brave truth-tellers have waited long enough. Please take action now!

Suzie Dershowitz contributed to this piece.