Holding the Government Accountable

House off to Strong Start on Whistleblower Protections in 2017

Yesterday, the Government Operations Subcommittee of the House Committee on Oversight and Government Reform (HOGR) held a hearing marking the fifth anniversary of the passage of the Whistleblower Protection Enhancement Act (WPEA). The hearing included a panel of government employees and whistleblower protection advocates, who faced questions from Members of Congress that made it clear the Committee is dedicated to improving whistleblower protections and enforcing current protections.

The Project On Government Oversight was invited to testify at the hearing, and our remarks focused on the need for continued Congressional oversight and enforcement of protected and meaningful channels of communication between agency employees and Congressional offices.

Members from both sides of the aisle shared this view, calling into question, for instance, the legality of gag orders issued by the new administration in its first week. In addition, Subcommittee Chairman Mark Meadows (R-NC) announced that he, Committee Chairman Jason Chaffetz (R-UT), and Senate Judiciary Committee Chairman Chuck Grassley (R-IA) were sending a joint letter to the White House highlighting the important role whistleblowers play in Congressional oversight and the proper functioning of the executive branch. The letter correctly states “protecting whistleblowers who courageously speak out is not a partisan issue—it is critical to the functioning of our government.”

Subcommittee Ranking Member Gerald Connolly (D-VA) highlighted a bill he and Representative Sean Duffy (R-WI) reintroduced together this session that would close a recently uncovered loophole in the WPEA. The Follow the Rules Act would undo the effect of a decision handed down by the Merit Systems Protection Board (MSPB) in Rainey v. State, which removes whistleblower protections in cases where employees refuse to obey an order that would cause them to break a rule or regulation set by the agency. Currently, you can refuse to follow an order that would break the law but not one that would break a regulation—leading to confusion and leaving employees on the hook for these regulatory violations.

Representative Dennis Ross (R-FL) commented that whistleblower protections must be a shield for whistleblowers but also a sword to cut through the wrongdoing exposed by disclosures and to hold retaliators accountable. This was mirrored in POGO’s testimony, in which we advocated for mandatory punishment for those who retaliate against whistleblowers. When left to agency discretion, punishment is uncommon and whistleblower retaliation is not sufficiently deterred. Representative Brenda Lawrence (D-MI) highlighted the potential for the House to use the newly revived “Holman Rule” to retaliate against whistleblowers by reducing their salaries to $1 for making protected disclosures. The rule allows Representatives in the House to cut the pay of an individual federal worker to $1 annually, as a line item in an appropriations bill. POGO agreed that this rule may have a chilling effect on whistleblowers. Increased Congressional oversight is necessary to make sure that it isn’t used that way.

Overall, the hearing highlighted that this Committee is seriously considering legislative improvements to whistleblower protections and is ready and willing to conduct oversight over the administration’s handling of whistleblower protections. As always, this oversight is incredibly important.