National Whistleblower Day

Today is the 100th anniversary of the Lloyd-La Follette Act, a milestone in our nation’s protections for government whistleblowers and a watershed in the balance of power between Congress and the President.  In 1902, President Theodore Roosevelt issued an executive order prohibiting all federal employees from making disclosures to Congress without the permission of their supervisor. In 1909, President Howard Taft issued the same order. Members of Congress called these orders a "gag rule." See 48 Cong.Rec. 4513 (1912) (remarks of Rep. Gregg) .

The Lloyd-La Follette Act made a number of reforms to the civil service system, including definition of the "just cause" required for discipline, and a protection of the right to organize and join labor unions. However, whistleblowers must appreciate this provision, now codified at 5 USC § 7211:

The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.

This provision was intended “to protect employees against oppression and in the right of free speech and the right to consult their representatives.” H.R.Rep. No. 388, 62d Cong., 2d Sess. 7 (1912). Sen. La Follette, the Wisconsin Republican and progressive, recounted the story of a Chicago postal worker who told the newspaper about horribly unsanitary conditions in the post office.  48 Congressional Record, Vol. -1806, Page 10731 (1912). Apparently, he intended to protect not only direct communication with members of Congress, but also communications through the media.

The Supreme Court has upheld the validity of the Lloyd-La Follette Act.  Arnett v. Kennedy, 416 U.S. 134 (1974).  However, the Court in Arnett held that Congress could limit the procedures federal employees could use to enforce the rights created by the statute.  When Wayne Kennedy shunned the opportunity to respond to a notice of proposed removal and instead filed suit against the boss who fired him, the Supreme Court held that he forfeited the one process provided by law to assert his claim of a violation of the Lloyd-La Follette Act.

Lloyd-La Follette remains noteworthy today for its even application across the entire federal employment.  Unlike the more modern Whistleblower Protection Act, Lloyd-La Follette has no exemption or alternative procedure for national security employees. In 1958, Congress passed a Code of Ethics that directs all government employees to “expose corruption wherever discovered.” 72 Stat. B12 (1958) (H. Con. Res. 175). Congress has given new life to Lloyd La Follette by inserting "anti-gag" rules into appropriations acts since 1997. See, for example, Pub.L. 105-61, 111 Stat. 1318, (1997). These laws responded to an order by President Reagan that required national security employees to sign "non-disclosure" agreements. Congress now prohibits the expenditure of any funds to enforce such agreements to the extent that they restrict communications to Congress.

While Congress has helpfully insisted on its right to receive information from federal employees, the Supreme Court has pulled the rug out from state and local employees. Last year in Borough of Duryea v. Guarnieri, 564 U.S. _ (2011), the Supreme Court held that the Petition Clause of the First Amendment offers no protection to employee grievances unless they qualify as matters of "public concern" under the Free Speech Clause. 

Lloyd-La Follette is sometimes called America’s first whistleblower protection law.  As Stephen Kohn has pointed out, this honor actually goes to the Continental Congress which protected naval whistleblowers on July 30, 1777.

The Lloyd-La Follette Act was still visionary in its perception that the effectiveness of Congress depends on the free flow of information, that the integrity of our government depends on the protections we provide to whistleblowers, and that the vitality of our public discourse depends on the nuts and bolts of what employees can do when their rights are violated.  For this, I say Happy Birthday.