Whistleblowers are indispensable to uncovering wrongdoing across our federal government. With around two million federal employees, the U.S. government is too large for congressional or agency oversight to capture all wrongdoing. Whistleblowers, who disclose fraud, waste, and abuse, are therefore critical in ensuring that our government functions effectively, efficiently, and lawfully, as well as a resource to help Congress fulfill its constitutional responsibility to conduct oversight. The Protecting Our Democracy Act includes the bipartisan Whistleblower Protection Improvement Act of 2021, which reinforces protections for federal whistleblowers and thereby strengthens Congress’s ability to stem budgetary waste and abuses of executive power.
- The Whistleblower Protection Improvement Act is Title VIII of the Protecting Our Democracy Act.
- Similar provisions have been introduced as stand alone legislation, including:
- The House Oversight and Reform Committee has held hearings on whistleblower protections, including:
Articles about the measure include:
- Liz Hempowicz and Melissa Wasser of the Project on Government Oversight, “It’s time to make it easier for watchdogs to work without interference.” (The Fulcrum)
- Melissa Wasser of the Project On Government Oversight and Andrew Lautz of the National Taxpayers Union, “Protecting courageous whistleblowers is not a partisan issue.” (Roll Call)
Congress has a long history of valuing and protecting whistleblowing. The Lloyd-La Follette Act of 1912 granted federal employees the rights to “petition Congress or a member of Congress, or to furnish information to either House of Congress, or to a committee or member thereof” and protected them from some forms of retaliation for presenting “grievances” to Congress. The Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 provided additional protections for federal whistleblowers from retaliation and streamlined review processes for whistleblower complaints and allegations.
Under current law, civilian federal employees, contractors, and grantees can directly contact congressional oversight committees, the offices of their representatives and senators, and/or select authorizing committees. Within the executive branch, whistleblowers can disclose information to agency leadership, inspectors general, the Merit Systems Protection Board (MSPB), the Office of Special Counsel, or the Government Accountability Office’s FraudNet system.
Despite these processes and protections, it remains difficult for whistleblowers to report issues and to vindicate their rights when they face retaliation.
First, the Merit Systems Protection Board (MSPB), the three-member, quasi-judicial executive branch agency in charge of reviewing most whistleblowers’ retaliation complaints, has become a bottleneck. Unlike private-sector whistleblowers, federal employee whistleblowers cannot move their complaints to court, and must seek relief from the MSPB. Since it lost a quorum in January 2017, the MSPB has been unable to grant relief to whistleblowers who have filed retaliation complaints and faces a backlog of over 3,500 cases. Even when the MSPB functions, whistleblower retaliation cases can take years to resolve, and in cases where the MSPB’s lower-level administrative judges deny relief, whistleblowers are vulnerable to retaliation while they appeal.
Second, whistleblowers in the Intelligence Community (IC) have no access to the MSPB or courts; they can only petition Inspectors General in the IC, who can investigate their claim and issue an opinion that agency heads may ignore. In addition, the IC Inspector General may not directly transmit whistleblower complaints to Congress and, rather, must rely on the Director of National Intelligence to do so. As a result, whistleblowers in the IC can be ignored, silenced, and suffer retaliation under current law.
More broadly, federal whistleblowers lack protections against basic forms of retaliation, including harassing investigations, revocations of their security clearances, and disclosure of their identity. Strengthening whistleblower protections would not only protect those brave enough to come forward from unjust punishment, but also ensure that federal employees are not chilled from reporting waste, fraud, and abuse in the future.
The Protecting Our Democracy Act would:
- Clarify federal employees’ rights to blow the whistle, by strengthening communication channels with Congress, ensuring non-career Senior Executive and Public Health Service employees have access to whistleblower protections, and making enforceable requests to investigate abuses by the Offices of Inspector General;
- Create additional protections for whistleblowers in the Intelligence Community, by limiting the sharing of whistleblower complaints with the subject(s) of the complaint, creating a secure mechanism for disclosure to congressional intelligence committees, and prohibiting the disclosure of the whistleblower’s identity without their consent;
- Strengthen anonymity and retaliation protections, by setting standards for whistleblower confidentiality, protecting against retaliatory investigations, and expanding anti-gag provisions under current law;
- Improve access to justice, by providing access to court and jury trials in retaliation cases and expanding attorney fees to cover court representation.