Time to Strengthen Whistleblower Protection Laws

The Taxpayers Protection Alliance is a strong supporter of enhanced whistleblower protection laws.  The following op-ed was written by Michael Ostrolenk, co-founder and National Director of the Liberty Coalition, Pete Sepp, Executive Vice President for the 362,000-member National Taxpayers Union, and Tom Devine,  Legal Director of the Government Accountability Project.) As the national debt ominously exceeds 100 percent of Gross Domestic Product, policymakers must have reliable information about government waste, fraud, and abuse. Federal employees on the front lines can often be the best source of this information.  Their protection as whistleblowers spotlights a political crossroads between rhetoric and real commitment to change.

The good news is that after 13 years Congress is poised to pass the Whistleblower Protection Enhancement Act (WPEA), which would deliver lawful free speech rights to government workers who identify and challenge fraud, waste and abuse.

The bad news is that key Republican gatekeepers are demanding that the paper rights be stripped of normal due process court access to enforce them. That weakness has permitted nearly-identical rights to be gutted in practice after unanimous approval three times since 1978. That means WPEA could end up all bells and whistles without a motor.

Our organizations are united in the belief that Congressional action is overdue. Throughout 40-plus years of advocating for limited government, the National Taxpayers Union (NTU) has recognized government whistleblowers’ indispensable role providing real-time, first-hand warnings about specific defects in malfunctioning machinery of the federal bureaucracy. The Liberty Coalition has witnessed similar benefits time and again.

Unfortunately, government machinery’s gears often grind up the careers of those courageous few who challenge its breakdowns. Worse, lack of normal court access has permitted a track record where so-called rights are a trap that rubber-stamps retaliation. The track record is 3-226 against whistleblowers in final rulings since Congress last enacted them in 1994. For whistleblowers, filing suit means spending thousands of dollars and many more years of conflict to hammer the final nail in their own professional coffins. It is unrealistic to expect that government workers will defend the public, if they cannot defend themselves.

In mid-September 2011, NTU, the Liberty Coalition, and 13 others in the limited government movement released a statement calling on Congress to immediately pass WPEA. The statement debunked several whistleblower protection myths, namely:

• National Security Risks – By creating a safe channel of communication within agencies and to appropriate Congressional Committees for whistleblowers with sensitive information, WPEA prevents irresponsible WikiLeaks-style disclosures. Lawmakers should resist attempts to strip these protections for national security whistleblowers from the bill.
• Judicial Workloads – WPEA carefully balances jury-trial prerogatives for federal whistleblowers to ensure they can enter courts as a last resort without clogging caseloads, and are more modest than corporate whistleblowers now have.
• Grievance Mills – WPEA’s language meticulously defines how, when, and where federal employee whistleblowing is protected, avoiding creation of a process that disgruntled malingerers can manipulate.

To their credit, House and Senate offices are working hard on a bipartisan basis to finalize WPEA for final passage. Last fall both House and Senate committees unanimously approved versions identical to that unanimously approved last Congress but killed in the last hour by a secret hold on a procedural matter.

But, today, some Judiciary Committee Republicans threaten to block passage again unless: whistleblowers are entirely stripped of jury trials in court, agencies have a 20-30% advantage in court for legal burdens compared to administrative hearings; and normal access to appeals courts is removed. If that occurs, whistleblowers would be limited to the same enforcement system that has created more victims than it’s helped.  Opposing these attempts to weaken WPEA is the litmus test of whether the new rights are another temporary fix, or a serious commitment to changing government oversight for the better.

The threats are curious, because since 2002 Congress has passed corporate whistleblower laws 11 times covering nearly the entire private sector, each providing jury trials and normal appeals court access. Even more curious is that they come from leaders in a party whose identity is defined by fighting waste and abuse by government bureaucracies.

Studies consistently demonstrate that corporate whistleblowers uncover more internal fraud than auditors, compliance officers, and law enforcement combined. Those defending taxpayers should have protection as strong as those defending shareholders. Whistleblower rights with enforcement teeth shield those defending the taxpayers. Rights without enforcement teeth shield bureaucracies.

As the fiscally conservative coalition noted in our statement supporting WPEA, “Changing the culture of tax-borrow-and-spend in Washington … entails not only fiscal discipline mechanisms to bring reform from without, but also an environment that encourages reform from within. The credibility of this Congress depends upon its willingness to do both ….” That credibility remains on the line with taxpayers, who deserve swift action – not more excuses – on genuine, strong whistleblower protection legislation.