Washington, DC – Today, the Make It Safe Coalition (MISC) marks the 25th anniversary of the Whistleblower Protection Act (WPA), the primary law ensuring freedom of speech and accountability in the federal workplace, and the model for occupational free speech globally.
The MISC statement reads:
The Whistleblower Protection Act continues to be a work in progress. Congress put off controversial decisions on court access and administrative due process hearings until completion of a four-year study. Also, notably, the WPA does not provide our military and most national security and intelligence community workers with protections. It is critical that the national security workforce – including contractors – have adequate protections for blowing the whistle on wrongdoing. Thanks to Congressional whistleblower and government accountability advocates, legislation is now moving through Congress that would address some of this unfinished business.
The Coalition is thankful for the ongoing efforts to strengthen whistleblower protections by Senators Charles Grassley (R-Iowa), Susan Collins (R-Maine), Ron Wyden (D-Or), Jon Tester (D-Mt), and Claire McCaskill (D-Mo), as well as Representatives Eleanor Holmes Norton (D-Dc), Elijah Cummings (D-Md), Chris Van Hollen (D-Md), and other cosponsors of H.R. 3278.
The Coalition is also pleased by today’s announcement by Senator Grassley of his intent to form a Whistleblower Protection Congressional Caucus to continue his legacy of safeguarding those who safeguard the public and taxpayer dollars.
Charity Wilson, Legislative Representative for the American Federation of Government Employees, commented: "Encouraging federal employees to report waste, fraud and abuse in their workplaces makes the government more efficient and accountable to the people. Employees should not have to risk losing their jobs or being retaliated against for disclosing wrongdoing within a government agency. AFGE championed for passage of the Whistleblower ProtectionAct 25 years ago, and we continue to fight for improvements to the law that will make it easier and safer for employees to speak out."
Celia Wexler, Senior Washington Representative for the Center for Science and Democracy, Union of Concerned Scientists, commented: "Scientists who work at federal agencies need whistleblower protection. It ensures that the work they do to protect our health and safety isn’t distorted or suppressed because of political or corporate interference. This law laid the foundation for these protections and, moving forward, these protections should become stronger."
Tom Devine, Legal Director for the Government Accountability Project, commented: "This law is a landmark paradigm shift of legal rights, but it would be dishonest to say that any government whistleblower is safe. Since theWhistleblower Protection Enhancement Act’s passage, the Federal Circuit has ruled against whistleblowers in all final decisions. Unlike corporate whistleblowers, federal employees cannot seek justice through a jury trial. There is no legally safe option for Intelligence Community workers to challenge misconduct within the system, leaving media leaks as the only alternative to professional suicide. There is no protection against retaliatory criminal investigations or prosecutions, often more chilling than job reprisals. Our work is not over."
Angela Canterbury, Director of Public Policy for the Project on Government Oversight (POGO), commented: "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 truth tellers. 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."
Keith Wrightson, Worker Safety and Health Advocate for Public Citizen’s Congress Watch division, commented: "The WPA created a vehicle for workers to safely call out potential hazards in the workplace without retaliation from their employers. By giving federal workers more opportunity and resources to identify hazardous workplace situations, the government will become more efficient."
WPA Background and Ongoing Challenges
The WPA is the landmark mandate giving federal employees free speech rights to defend the public from government misconduct. It protects workers who lawfully make disclosures they reasonably believe are evidence of illegality, gross waste, gross mismanagement, abuse of authority, or substantial and specific danger to public health or safety. It enforces these rights through administrative due process hearings (at the Merit Systems Protection Board), or through help from the U.S. Office of Special Counsel (OSC), which has broad powers to protect the federal merit system generally and whistleblowers in particular.
However, the promise of the WPA has not always been fulfilled. It has suffered from faulty interpretations, erosion by activist court decisions, bad implementation, and attempts to weaken its significant impact on government accountability. Congress has unanimously passed the WPA’s free speech mandate five times, stamina necessary because each time it was gutted in practice. The rights originally were passed in response to the Watergate scandal as part of the Civil Service Reform Act of 1978. But they turned out to be a counterproductive disaster. From 1978-1988, only four employees won their cases out of 2000 filed. During that same period, the Special Counsel turned out to be a nightmare. Instead of protecting whistleblowers, it used its broad authority to help purge them from government, to the extent of teaching courses and tutoring managers on how to fire whistleblowers. In 1985 a bipartisan core of congressional leaders fought for the rights to be revived in what became the WhistleblowerProtection Act of 1989. Senators Grassley, Carl Levin (D-Mi), David Pryor (D-Ar), and Representative Pat Schroeder (D-Co) led the campaign. The new law restored the rights by closing loopholes, creating fair legal burdens of proof that have been repeated in nearly all whistleblower laws since, creating the right to an administrative due process hearing at the MSPB against all forms of retaliation, and eliminating the Special Counsel’s authority to act against those seeking help. Although unanimously approved by Congress, after adjournment President Reagan pocket vetoed the Whistleblower Protection Act of 1988. Undeterred, in March 1989, Congress unanimously passed a stronger version, signed by President George H. W. Bush on April 10, 1989.
However, an intense test of wills ensued between Congress and a court with monopoly power for review of MSPB decisions – the Federal Circuit Court of Appeals (Federal Circuit). The WPA had tightened the law’s language to protect “any” lawful disclosure of credible evidence, closing Federal Circuit loopholes from the 1980s. But the court disregarded the new language and created even more loopholes. In 1994, Congress unanimously acted again, modifying the law to legislatively overturn the hostile court rulings and expand its scope. On paper, the WPA was the strongest free speech law in history for government workers.
In reality, the law was not strong. The Federal Circuit responded by stepping up its attack on the law. From the October 1994 amendments until the Whistleblower Protection Enhancement Act (WPEA), in final decisions the Federal Circuit ruled against whistleblowers in 236 out of 239 cases. The court ruled that “any” disclosures did not include disclosures to co-workers, supervisors, anything connected to job duties, any criticism of policy, and anything at all that had been raised previously. It held that a “reasonable belief” required “irrefragable proof” – defined by Webster’s Dictionary as “undeniable, incontestable, incontrovertible, or incapable or being overthrown.” By 2000, the court had turned the law into a rubber stamp for almost any retaliation a whistleblower challenged.
Again, Congressional champions sought to restore their intent for strong protections in practice. Senators Grassley and Levin, leaders of the 1989 and 1994 efforts, fought back in 2000 with now-retired Senator Daniel Akaka (D-Hawaii), beginning the marathon campaign that again restored the original 1978 rights through unanimous passage of the Whistleblower Protection Enhancement Act (WPEA) of 2012.
This hard-won victory could not have been achieved without the steadfast support of whistleblowers, advocates and nongovernmental organizations alike that demonstrated an extraordinary commitment to the restoration of federalwhistleblower protections throughout this 13-year campaign. Congressional champions and their staff deserve praise and appreciation, especially retired Senator Akaka, former Senator Joseph Lieberman (I-Ct), and former Representative Todd Platts (R-Pa), as well as current Senators Collins, Grassley, McCaskill, Patrick Leahy (D-Vt) and Levin, and current Representatives Darrell Issa (R-Ca), Van Hollen (D-Md) and Cummings (D-Md).
A full list of WPEA Congressional sponsors can be viewed here.
A menu of key reforms in the WPEA can be viewed here.
The WPEA can be viewed here.
The WPEA again closed all loopholes to restore the original free speech rights for a fourth time, added a strong shield pioneered by Senator Grassley against agency gag orders, gave the Special Counsel more power to discipline violators, and like the earlier bills, expanded their application. The key provision was temporary structural reform, however. The WPEA created a two-year pilot program for normal access to appellate courts, “all circuits review,” temporarily ending the Federal Circuit’s monopoly power to interpret the law. Congress currently is considering legislation to extend the “all circuit review” for another three years, so it can be included in a four-year study on key provisions of the WPA.
The WPEA’s odyssey included secret Senate holds in 2006, 2008 and 2010 that blocked final approval despite prior, unanimous support for the reform in preliminary votes. The strength of rights in the law also varied drastically over the campaign. In 2007 and 2009, the House passed versions that would have granted court access to Intelligence Community (IC) whistleblowers. But in the enacted 2012 WPEA, no federal whistleblowers yet can choose a jury trial in court instead of an administrative hearing. Additionally, IC whistleblowers have no statutory protection, even for disclosures solely within internal channels. The removal of IC protections was due to the adamant objections by House Intelligence Committee Chairman Mike Rogers (R-Mi). President Obama, however, who had supported intelligencewhistleblower rights in the legislation, largely replaced the canceled provisions through executive action in Presidential Policy Directive 19. However, these rights must be strengthened and put into statute.
In November 2013, the Senate Select Intelligence Committee approved protections for national security and intelligence community whistleblowers in the Intelligence Authorization Act for Fiscal Year 2014, championed by Sens. Collins and Wyden. It is currently being reconciled with the House version of that bill. The reforms the Committee proposes would provide for the first time specific statutory protections for those who hold security clearances and have access to classified information. The protections are very similar to those the Senate passed by unanimous consent in 2012, only to be blocked in the end by Rep. Rogers. Given the recent high-profile leaks of classified information, it’s time for Congress to make it safe to use legal channels to disclose waste, fraud and abuse in our intelligence activities.
A significant threat to WPA rights is the Kaplan v. Conyers decision. In August 2013, this devastating court decision stripped federal employees in national security sensitive positions of their right to appeal an adverse personnel action – setting the stage to also strip due process rights for actions that are discriminatory or in retaliation for whistleblowing. The deeply flawed decision in Kaplan v. Conyers, Northover and MSPB (Conyers) arms agencies with sweeping power not granted by the President or Congress and creates an accountability vacuum. If an agency fires a national security sensitive employee for having made a legally protected whistleblower disclosure or because of that employee’s race or religion, there very likely would be no review or oversight of that action – even if the employee had no access to classified information or any credible national security role.
However, bipartisan legislation has been introduced in Congress to reverse this activist court decision that threatens civil service and whistleblower protections for many federal employees. MISC strongly supports the legislation, S. 1809, introduced by Sen. Tester with original cosponsors Grassley and McCaskill, and its companion, H.R. 3278, sponsored by Holmes Norton.
This critical reform is necessary to ensure the civil service and whistleblower protections Congress always intended, but were essentially ignored by an activist court decision. This bill would help prevent agencies from hiding wrongdoing and firing workers with national security labels by restoring long-standing review of these decisions.