Introduction
A landmark bill to protect government whistleblowers is expected to win U.S. Senate approval this month, according to two advocacy groups, extending protection to members of the intelligence community who report waste, fraud, and abuse.
Democrats are using the parliamentary procedure of unanimous consent to get the legislation passed during the lame duck session. The bill has bipartisan support and would be a much needed victory for the Obama administration and for whistleblower advocates.
The Whistleblower Protection Enhancement Act would offer new rights to federal workers such as Transportation Security Administration baggage screeners, government scientists, and employees in intelligence agencies. It also would guarantee a jury trial for federal workers who complain of employer retaliation, and would end the practice of sending all federal worker cases to the Federal Circuit Court of Appeals, which has ruled against whistleblowers in 208 out of 211 cases. The bill does not protect public disclosure of classified information, such as the massive data spill from WikiLeaks.
Along with the improved protections come some rollbacks.
For example, the legislation would add an exception to “protected disclosure”, which shields individuals who turn in violations, if the violation is considered minor. “The problem is that most things people blow the whistle on are minor, and turn out to be bigger problems. A lot of times whistleblowers find the tip of the iceberg, which turns out to be massive fraud,” said Lindsey Williams of the National Whistleblowers Center.
“There are certainly things that could be stronger in the bill, and there were compromises made to create legislation that could survive the current political environment,” said Angela Canterbury of the Project On Government Oversight advocacy group. “Despite some limitations, the bill is still a landmark advance of whistleblower rights.”
The bill was introduced by Democratic Sen. Daniel Akaka of Hawaii in early 2009, and approved by the Senate Homeland Security and Governmental Affairs Committee later that year.
Akaka sought unanimous consent for his bill to expedite Senate approval in December 2009 and again in September 2010, “but an objection was raised over some specifics about the Defense Department’s role in the new security clearance retaliation protections,” said an Akaka spokesman, Jesse Broder Van Dyke. “That issue has been resolved.”
Unanimous consent is a time-saving device that eliminates the need for a formal debate and vote on the Senate floor. But if a single senator objects to a request for unanimous consent, the request is rejected. Van Dyke told the Center that Sen. Akaka is “optimistic” the bill will be passed before the end of this year.
Though there has been speculation that the bill is being brought up in part to try and stop further leaks of sensitive Pentagon and State Department documents to WikiLeaks and other outside groups. Van Dyke acknowledges that there is “a connection to be made” between the WikiLeaks situation and this bill, as there is a possibility that “these protections may discourage leaking of classified information.” However, he denies that the publicity surrounding the leaks played a role in the bill’s recent movement.
“Senator Akaka has been working to bring this bill to the floor since last year and he has worked on strengthening whistleblower protections for the past decade. “
One potential hurdle remains for the legislation. Senate Republicans sent a letter yesterday to Democratic Leader Harry Reid refusing to vote on any Democratic-backed bill unless it is related to tax cuts. The declaration applies to floor votes, but it is unclear if it also applies to unanimous consent legislation.
A spokesman for Republican Leader Mitch McConnell said he knew nothing about the whistleblower bill moving forward. A spokeswoman for Reid declined to comment.
If the whistleblower bill clears the Senate before Congress adjourns at the end of the month, House Democrats are expected to swiftly approve the same version of it. The House passed a similar whistleblower bill in 2007, and later attempted to attach it to the economic stimulus bill, which was rejected by the Senate.
Update 6:19 PM: This story was updated to include additional comments from Sen. Akaka’s spokesman.
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