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How a Red Herring about WikiLeaks Killed Whistleblower Protections

WikiLeaks killed our whistleblower protections bill—sort of. After an unbelievable roller coaster of fear and fallacies, votes on and off, and a flurry of activity, when the lights went out in the Capitol Building on December 22, the Whistleblower Protection Enhancement Act was dead.

It may be one of the few times in history when legislation has passed both chambers unanimously within two weeks and still failed to get to the president’s desk. Here’s what happened:

On December 10, the Senate finally passed the bipartisan Whistleblower Protection Enhancement Act (WPEA) by unanimous consent. It did not include every reform we had sought, but would have substantially changed the status quo for taxpayers and our federal workforce, which has been bullied into silence about everything from deadly pharmaceuticals to huge contractor fraud to faulty equipment and practices that put our troops at risk. The WPEA would have saved billions of taxpayer dollars and countless lives by enacting real, desperately-needed protections for those in our government who warn us of waste, fraud, political tampering with science, and other abuses.

After passing this huge Senate hurdle, making the reforms law seemed finally within reach. It had taken months and years of deliberations, advocacy, and negotiations to get a bill that eventually won the support of all 100 senators, thanks in large part to the sustained efforts of Senator Daniel Akaka (D-HI) and his cosponsors Senators Charles Grassley (R-IA), Susan Collins (R-ME), Joe Lieberman (D-CT) and George Voinovich (formerly R-OH), as well as the White House.

As soon as the Senate passed WPEA (S. 372), our House allies moved quickly to queue it up for passage in the remaining days on the legislative calendar. The House had already passed a version of the bill in 2007 and again in 2009 that would have gone much further in expanding whistleblower rights than the bill passed in the Senate. We thought our enemy in the House was time.

But then a few Republicans tried to connect the bill to the WikiLeaks controversy. There was no real connection—just an opportunity for a media platform to possibly embarrass the president and kill a bill he supported in the process. It was particularly stinging that Representative Darrell Issa (R-CA), the incoming chair of the House Oversight and Government Reform Committee (and winner of POGO's 2010 Good Government Award for his work promoting government transparency and accountability), raised the WikiLeaks red herring and effectively derailed the Senate-passed bill in the House. Issa had long supported the WPEA, but suddenly did an about-face, repeatedlyciting concerns that the bill might further enable WikiLeaks-type disclosures. The reality couldn’t have been further from the truth.

There was absolutely nothing in the bill that would have allowed for the public disclosure of classified information a la WikiLeaks. This bill was about preventing leaks by protecting lawful disclosures by federal employees for more government accountability. Dozens of the most trusted good government groups from across the ideological spectrum made this clear in an urgent plea to Issa, and yet he persisted in the WikiLeaks propaganda.

So, in an attempt to end the scare tactics and salvage major reforms desperately needed, Representatives Chris Van Hollen (D-MD) and Todd Platts (R-PA), the champions of the House version of the bill (H.R. 1507), removed portions of S. 372 that would have extended coverage to intelligence community workers and other national security-related issues. It was a hard pill to swallow after the Senate cosponsors had spent most of the year negotiating changes to these new rights to appease concerns raised by former Missouri Republican Senator Kit Bond and others. However the result was effective: Absent the national security provisions, Issa and other House Republicans could no longer make even a remote connection to WikiLeaks, and so the path was cleared again for passage.

It also was likely an unintended consequence. The bill had been cut, but Mr. Issa had long supported the national security provisions that now had been dropped. In fact, he had supported the more expansive protections for intelligence community and national security workers in the earlier House bill. He eventually signaled his support for the pared-down bill in a press release, noting the need to deal with WikiLeaks issues separately in the New Year.

So after several days of intensive efforts, the House passed the trimmed version of the WPEA in a relatively rare agreement by unanimous consent around 5:40 p.m. on December 22, the last day of the 111th Congress. Our Senate allies had been preparing to run it through if the House passed it, but there was an extremely narrow and unpredictable window—maybe only minutes or hours.

There was another scramble. It was S. 372 minus some provisions, but again, every remaining provision had already won the support of every senator. The Democrats cleared it, but would Senate Majority Leader Harry Reid (D-NV) keep the lights on until it passed?

It took less than an hour for the death knell. At least one anonymous Republican senator put a secret hold on the bill, and then skipped town.

So, in spite of the absolute heroics of our House and Senate cosponsors and their staff, tremendous support from the White House, intense and effective advocacy from the whistleblower, labor, and accountability communities, federal whistleblowers still ended up with coal in their stockings—again.

We are hearing that the hold in the Senate was placed at the request of House Republicans. If true, it does not bode well for a renewed effort this year. We urge the Republican senator who held the bill to come forward instead of hiding in the shadows. Perhaps there are thoughtful policy concerns behind the hold, but if the senator does not share those, we can only assume foul play.

Meanwhile, Chairman Issa continues to relate whistleblower protections with WikiLeaks. Issa told Fox News this week that “ultimately the next whistleblower bill has to deal with WikiLeaks” and “we’re going to do that right off that bat.” It certainly is the case that there were failures leading up to Private Bradley Manning’s alleged leaking of classified information. Those failures should be examined, as well as the policies for sharing information and intelligence across government assets safely and effectively. But those issues should be addressed separately from the wholly different need to strengthen whistleblower protections for civil servants to improve overall government accountability to taxpayers.

Chairman Issa has promised hundreds of hearings and active oversight of the federal government. We hope Chairman Issa will agree that his job will be made far easier once potential whistleblowers can come to his committee without the enormous risks they face today. If Issa is to fulfill his oversight agenda, he undoubtedly will need the trust and cooperation of federal workers, which he can help ensure by quickly moving the bill to protect them that he supported. He then can turn to WikiLeaks and the host of other issues on his agenda. It’s time to drop the red herring about WikiLeaks and protect civil servants who lawfully blow the whistle.