New Federal Whistleblower Law Enhances National Security, Reduces Wasteful Spending
Have you ever looked at an election ballot, and had a strange sense of déjà vu?
Every November when I look at my ballot, I see candidates who have run and lost at least a dozen times for as many different positions. Yet, every year, these perennial candidates throw their hat into the ring once more.
For instance, consider Michael “Goodspaceguy” Nelson, who has run for office in my home state of Washington the last several cycles, including runs for King County Council, congress and governor.
This year he is running for a seat on the King County Council. And yes, the name he uses on the ballot is actually “Goodspaceguy.”
Predictably, space exploration appears to be his most important concern.
Last election, he noted that “We should already have more than 200 private space habitats in orbit, connected together in different configurations and in different orbits. You have already paid the money required for space colonization, but you have not gotten the space colonies because many of your chosen leaders have not studied space colonization, and so they have misspent your money.”
Opining on the current economic outlook in the country, he noted, “I, Goodspaceguy, have studied economics and studied how to increase jobs and the living standard and how to improve the quality-of-life: To increase jobs, we should increase profits.”
Oh, if only it were that easy. I’ll make a bold prediction; Goodspaceguy is probably not going to win in November.
The phenomenon of perennial candidates is not unique to politicians. Some laws have been proposed dozens of times, only to be voted down by representatives and the people time and time again.
There are also laws that pass by a strong bipartisan vote, but are repeatedly vetoed or otherwise never implemented for a variety of procedural reasons. The champions of those ideas must feel like Sisyphus, the Greek King sentenced by the Gods to push a boulder up a hill for eternity.
For instance, many of us in the legal community who represent whistleblowers have long championed the core components of the Whistleblower Protection Enhancement Act (WPEA), a law that was first proposed more than a decade ago. The law, which contains various protections for federal workers who blow the whistle on fraudulent and improper practices, was recently passed by the U.S. Senate by a unanimous vote.
Yet, despite a unanimous vote in favor, I am only cautiously optimistic that the bill will become law. After all, it has passed unanimously at least four times before.
The last time the law came close to final passage was in 2010, when incoming House Republicans asked Senate colleagues to place an anonymous hold on the law, creating a short delay so they could “improve” the bill. That delay turned into gridlock and the bill never became law.
I really hope that the House Republicans and President Obama can come to an agreement this time around, especially on an idea with such strong bipartisan support.
There are certainly signs of hope on that front. The House Committee on Oversight and Government Reform unanimously passed the bill in November, setting the stage for a final vote.
Yet, in this election year, even the most bipartisan ideas may be abandoned on Capitol Hill.
That is a shame. The WPEA would deter and reduce wasteful spending and enhance public safety by protecting federal workers who blow the whistle on improper activities.
Consider the recent scandal at the General Services Administration (GSA), in which federal workers allegedly wasted nearly a million dollars throwing a lavish party in Las Vegas in 2010.
One would think that with so many hundreds of employees attending the conference, a whistleblower might have come forward earlier. Yet, GSA Inspector General Brian Miller explained the problem when he testified before Congress in April. He said that any whistleblower would have been “quashed like a bug” by the powers that be at the GSA.
Congress has passed a number of bills in recent years to expand whistleblower protections and rewards, including new programs for whistleblowers that expose tax fraud and fraud on Wall Street. However, federal workers remain woefully unprotected.
A study released by the U.S. Merit Systems Protection Board, an independent executive agency, last year revealed that one-third of whistleblowers were either threatened or retaliated against for exposing fraud. Of those who reported receiving threats or retaliation, 65 percent said they were shunned by coworkers, 15 percent were suspended from their jobs and 10 percent said they were fired.
The situation is only getting worse. The same study was conducted in 1992. The 2011 data show that whistleblowers are nine times more likely to be fired for exposing fraud.
With statistics like that, it is no wonder that individuals who saw fraud at the GSA were reluctant to come forward.
The WPEA would improve protections for those whistleblowers, and deter similar fraud in the future by creating a safe environment for insiders to come forward.
For instance, the law would expand existing protections to employees at the Transportation Security Administration (TSA). The TSA guards our airports and other ports of entry into the United States and whistleblowers within the TSA have the potential to not only spot wasteful spending, but also highlight issues that could threaten our national security.
The Wikileaks saga demonstrated the risks that come with not having an effective whistleblower program for intelligence personnel, allowing safe disclosure of sensitive information to the appropriate authorities. Without a clear process for whistleblowers, one desperate rogue actor could publish sensitive information and hamper our diplomatic and intelligence efforts, undermining national security.
That’s why the WPEA creates additional protections and a process for whistleblowing within the intelligence community. This will allow policymakers to target fraud and waste without the public release of sensitive information.
The law also closes a number of loopholes that allow government agencies to retaliate against whistleblowers and affirms that disclosure of information exposing fraud is lawful.
Perhaps most importantly, the WPEA would give whistleblowers a chance to have their day in court. Currently, federal whistleblowers can only take their cases to the Federal Circuit Court of Appeals, giving them limited legal options. The WPEA would give whistleblowers the right to challenge their employers in a trial by jury in United States District Court.
I believe strongly that the WPEA will promote our national security and reduce fraud and waste in federal programs. I hope that President Obama and the Republicans in the House of Representatives come to an agreement that allows this highly bipartisan bill pass and become law.
However, I would remind prospective whistleblowers that, even with expanded protections thanks to the WPEA, a consultation with an attorney is essential before blowing the whistle. Whistleblower cases are incredibly complex and can involve accusations of fraud totaling billions of dollars. The wrong steps early in a whistleblower action can result in difficulties later.
At Hagens Berman, we provide counsel to whistleblowers under all of the major state and federal whistleblower laws. You can learn more about our practice at www.hbsslaw.com/service/practices/whistleblower-litigation.
This article can also be found in its entirety on Steve Berman's Seattle PI blog.