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Senate Does the Right Thing for Whistleblowers – So Close to a Win-Win-Win

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At last, a bit of good news and a glimmer of hope from Congress. Last Tuesday evening (May 8), the Senate unanimously approved S. 743, the Whistleblower Protection Enhancement Act. This bipartisan legislation will help all federal employees, including federal scientists, by restoring whistleblower protections that had been badly eroded by years of flawed court decisions. Senator Daniel Akaka (D-HI) has worked long and hard to get this law passed, and Senate action gets it one step closer.

Senator Daniel Akaka

Senator Daniel Akaka put in tremendous work to ensure safe passage of the Whistleblower Protection Enhancement Act, S. 743. Photo: Senator Akaka's office

Whistleblowers are fundamental to a democracy. In the federal government, they have been committed environmentalists like Jack Spadaro who ultimately lost his job with the Mine Safety and Health Administration after he charged that the agency failed to aggressively investigate an environmentally disastrous spill in Martin County Kentucky, when more than 300 million gallons of toxic coal waste burst through a containment area, polluting the surrounding land and flowing into numerous streams and rivers. They are dedicated FDA scientists like Dr. David Ross, who raised concerns about fraudulent clinical trials being used to justify approval of the antibiotic Ketek and then got threatened with termination for not being a team player. They work in all types of positions – federal air marshal, FBI agent, government procurement. But they share a strong sense of integrity, and courage, even in the face of harassment.

Unfortunately, whistleblowers, who should be celebrated as heroes, often pay huge consequences for calling attention to waste, fraud and abuse in government. They are often fired, or receive bad performance reviews, or face other forms of harassment.

Why the current law needs reform

Whistleblowers face these threats on the job, despite the fact that we have a whistleblower protection law on the books.

Unfortunately, this law has been badly worn away by court decisions. Just one court – the Federal Circuit Court of Appeals – hears all whistleblower cases.  This court has been very hostile to whistleblowers. As a consequence, court interpretations of the law left whistleblowers unprotected for a variety of reasons that defy common sense: if they exposed wrongdoing that was part of their job, (i.e. if they were auditors or safety inspectors), if they weren’t the first person to expose the wrongdoing, or even if they initially discussed their concerns with a co-worker

Whistleblower's Point

Whistleblower's Point. Photo: Union of Concerned Scientists/Brian Narelle

When whistleblower protections are weak, federal employees may feel intimidated. We know through our surveys of federal scientists that many continue to fear retaliation if they raise concerns about their agency’s mission, or try to exercise their free-speech rights to publicly discuss their work.

When UCS surveyed scientists at the Food and Drug Administration (FDA) last year, 211 scientists reported that they felt that they could not “openly express any concerns about the mission-driven work of [their] agency without fear of retaliation.”

A previous UCS survey of food safety staff at the U.S. Department of Agriculture and FDA revealed that 59 percent of respondents with advanced degrees — 217 food safety employees in all — believed that they could not speak to the public or the media about their scientific research findings, regardless of the level of controversy.

The Senate-passed bill would alleviate those concerns. It would undo the damage caused by these flawed judicial decisions, and create a strong and legitimate process for employees who expose agency malfeasance who then lose their jobs or suffer other forms of harassment to fight that retaliation. The law also would send a strong message to federal managers that employees have rights that should be respected.

A long, hard fight

Our whistleblower coalition has worked for more than a decade to get a strong whistleblower reform law passed. The law has strong support from both sides of the aisle, and our whistleblower coalition includes diverse groups, ranging from the Tea-Party-friendly National Taxpayers Union and libertarian Liberty Coalition to the Project on Government Oversight and the Government Accountability Project. The reason this issue is so cross-cutting is easy. Not only are whistleblowers the most effective means of protecting taxpayers against waste and fraud in government, they also protect us from government actions or omissions that would degrade our environment or endanger public health and safety.

So with bipartisan support, why the delay?

There are many reasons, but a big one is that some, certainly not all, senior managers at federal agencies, regardless of which party holds the White House, have always been reluctant to give whistleblowers protection against retaliation. If you’re the person in charge, you don’t like to be second-guessed. Things go a lot more smoothly if your employees don’t challenge you.

Recently, too, there has been an unfounded concern that protecting national security whistleblowers, crucial to ensuring that we truly are protected from terrorism, would somehow allow information that the national security establishment wants to keep confidential to become public. In truth, the opposite is true. If you give national security employees a process for raising concerns about national security lapses that protects them from retaliation, they won’t feel that they only way they can warn the public is through the media. And whistleblower protections will not make it legal to leak classified information.

Representative Darrell Issa (R-CA)

Representative Darrell Issa (R-CA) will need to steer the legislation through the House of Representatives to send it to the president's desk. Photo: Flickr User stanfordcis

Two years ago, we came very close to passing a strong whistleblower protection law. Whistleblowers were denied that victory because two senators, during the final minutes of the last day of the legislative session, placed secret “holds” on the House-passed bill, killing it.

But now, it is May 2012, months before Congress adjourns. There is enough time for Rep. Darrell Issa (R-CA), a sponsor of the bipartisan House whistleblower protection bill, and chairman of the House Oversight and Government Reform Committee, to press for a full vote by the House as soon as possible.

If Rep. Issa acts quickly, there will be time for House and Senate negotiators to come up with a final bill to send to the president’s desk that will protect whistleblowers, the public and scientific integrity.  It’s a win-win-win.

Posted in: Scientific Integrity Tags: , , , , , , , , ,

About the author: Celia Wexler is a senior Washington representative for the Scientific Integrity Initiative at UCS. A former award-winning journalist, Wexler is the author of Out of the News: Former Journalists Discuss a Profession in Crisis, published in 2012 by McFarland. At UCS, Wexler’s issue portfolio includes food and drug safety, protections for scientist whistleblowers, and government transparency and accountability. See Celia's full bio.

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