What does Louis Brandeis' famous quote, "sunlight is the best of disinfectants," have to do with efforts to reform federal employee whistleblower protections? Well, if you have been following the legislative progress of S. 372, the so-called Whistleblower Protection Enhancement Act, through the Senate you would understand how perceptive Brandeis was about the positive effect of publicity.
In the back rooms of Senate offices, senate staffers have been working in secret to load up the Senate's whistleblower bill with numerous poison pills that do more to protect federal agencies and managers than to enhance federal employee whistleblower rights.
Press coverage yesterday by Politico and today by In These Times and last summer by the Washington Times sheds some light on the inner workings of the Senate and the influence of federal agencies, the FBI and the intelligence community to water down important whistleblower reforms.
The back room influence of federal managers and agencies has produced a Senate bill that is much weaker than the stronger House bill (H.R. 1507), co-sponsored by Rep. Chris Van Hollen (D-MD) and Rep. Todd Platts (R-PA), that has strong bi-partisan support in the House and which was endorsed by President Obama during the campaign.
Here is a summary of where the Senate bill stands from our perspective at National Whistleblowers Center.
Sen. Joe Lieberman (I-CT) and Sen. Susan Collins (R-ME) are in charge of the committee reporting out the bill and are most responsible for letting the poison pills contaminate S. 372. Sen. Daniel Akaka (D-HI) is in charge of the bill as subcommittee chair. The buck has to stop with those in charge. Sen. Kit Bond (R-MO) has put a hold on the bill because he reportedly has his own concerns about the national security/intel provisions, but the nature and extent of those concerns are not really known. The most problematic provisions of the bill that the committee chairs and sponsors (i.e. Lieberman, Collins, and Akaka) have allowed to be inserted into the bill at mark up need to be resolved and corrected.
Before the Senate bill was even marked up at the end of July 2009 the bill's sponsors said that before the bill passes the Senate they would fix provisions that weaken existing FBI protections. They continued to promise that over the summer. As confirmed by the article published yesterday in Politico, the promised fixes on the FBI portion of the bill have not materialized.
To make matters worse, Sen. Akaka and other sponsors agreed to some changes which they insist fix the FBI protections, but everyone knows these don't fix the problem and they are merely cosmetic. This compounds the problem because the bill's sponsors are now dug in fighting for a bill that will weaken existing FBI whistleblower rights (which are very weak to begin with). To weaken them more is intolerable. Several FBI employees (like Bassem Youssef and Jane Turner) have pending cases under the current law. Several FBI employees (including Youssef) have won at the investigative stage of the process with favorable reports from either DOJ IG or DOJ OPR. This bill would change the landscape overnight and the FBI would be in charge of investigating and adjudicating whistleblower complaints by its own employees (including those who have initially prevailed) if the Senate bill becomes law.
Additionally, the sponsors of the Senate bill are fighting to preserve other nasty national security provisions in S. 372 affecting employees at all the intel agencies. While they initially claimed these provisions were inserted into the bill at the 11th hour as a placeholder and were admittedly not complete and were open to changing them, these, too, have not been substantially modified. These intel provisions, like the FBI provisions, will enable the intel agencies to control the investigations and adjudications of all whistleblower complaints filed by employees of their respective agencies. As a result, nothing more than a glorified internal agency grievance procedure is being proposed in this Senate bill for intel and FBI employees. All of the appeals beyond that to a new Board and to appeals court are smoke and mirrors because all of the initial fact finding and adjudication will take place by the intel agencies and FBI that initially fired or disciplined the whistleblower. On review by the Board or court of appeals, the FBI and intel agency findings of fact will be given substantial deference as a matter of law, and it will be virtually impossible to reverse those decisions. It will also expedite the removal or discipline of any whistleblower that utilizes this process.
At the time of the Senate markup on S. 372, I wrote a summary and analysis of some of the key provisions of the revised Senate bill. Most of the problems with the markup version of the bill noted on July 29, 2009 still exist.
Aside from the FBI and national security provisions, there are several troubling problems with the Senate's provisions to protect Title 5 federal employees. The Senate bill creates the most convoluted and weak jury trial provision ever proposed under law, it requires the whistleblower to seek approval by the MSPB to go to federal court and get a jury, and the whistleblower must survive summary judgment before the MSPB at the outset of a case (before any discovery takes place) in order to get a request for a jury trial approved by the MSPB. Also, the Senate has introduced summary judgment procedures for the first time in MSPB cases (and only for whistleblower cases). If this becomes the law, the jury trial right proposed by the Senate will be an illusory right. There will be so many roadblocks that this bill will not effectively change the existing process for most employees.
Unfortunately, most of the bad provisions contained in the Senate bill have the tacit or express approval of the Obama administration, which throughout this process has deferred to the views of the federal agency managers and heads of the intel agencies. As a result, the Senate incorporated many of the agencies' wish lists how to deal with whistleblower complaints into the Senate bill. While President Obama campaigned on the right of all whistleblowers to get full court access and he supported HR 985/HR 1507 as the model for reform, his administration has not weighed in on the side of the House bill thus far, despite President Obama's campaign promises. Consequently, once this bill passes the Senate it could be very difficult to remove all of the poison pills given the positions taken by the Obama administration during the drafting of the Senate bill.
As currently drafted, the Senate bill protects federal EMPLOYERS more than enhancing employee whistleblower rights. It is by far much more deferential to the EMPLOYER than any comparable whistleblower law affecting private industry, particularly in the areas that count the most.
We are not asking for perfection. Rather, we are asking these politicians to live up to their commitments to enact real whistleblower reform and not provide us with more watered down and paper rights that won't protect anyone except those federal managers and agencies that break the law or commit fraud, waste and abuse.
We continue to urge everyone to contact their Senators and President Obama and tell them to fix the poison pills in the bill before Senate passage of S. 372.
If you have any questions about S. 372 and the much stronger House version (H.R. 1507), please don't hesitate to contact me, Steve Kohn or Lindsey Williams at NWC, (202) 342-1902.