Senate committee advances whistleblower protection bill but leaves out protection for scientists

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On June 13 the Senate Homeland Security and Governmental Affairs Committee advanced legislation that would restore the mandate of the Whistleblower Protection Act (WPA), which has been gutted by judicial activism since 1994. However, while the legislation would strengthen protections for federal whistleblowers who expose waste, fraud and abuse of power, it fails to address scientists who expose the manipulation, distortion, or suppression of their work.

The Government Accountability Project issued this press release on June 13:

Senate Committee Advances Whistleblower Protection Legislation

(Washington, D.C.) – The Government Accountability Project (GAP) applauds members of the Senate Homeland Security and Governmental Affairs Committee for advancing legislation today that would plug a government accountability loophole created last year when the Supreme Court’s Garcetti v. Ceballos decision canceled constitutional free speech rights for government workers carrying out their job duties.

Senator Daniel Akaka (D-HI), with Committee Chairman Joseph Lieberman (I-CT) and Ranking Member Susan Collins (R-ME), led the Committee action today on S. 274, the “Federal Employee Protection of Disclosures Act.” The Committee unanimously agreed to advance the legislation by voice vote. Sen. Akaka’s legislation, S. 274, overhauls the discredited Whistleblower Protection Act. GAP has been pushing the reform for seven years, along with a diverse coalition of 45 good government groups.

GAP Legal Director Tom Devine praised the Committee leaders for moving quickly. “Until the Whistleblower Protection Act is revived, government employees cannot defend themselves when they defend the public against fraud, waste and abuse. Now, it is up to the Senate Leadership to schedule a floor vote without delay.”

The legislation restores the mandate of the Whistleblower Protection Act (WPA), which has been gutted by judicial activism since 1994, when Congress unanimously strengthened the WPA. The amendment also strengthens the due process enforcement structure for WPA paper rights, and applies them to a broader set of harassment scenarios, such as security clearance actions, retaliatory investigations and gag orders.

Specifically, the legislation would:

o Codify the legislative history for “any” protected disclosure, meaning the WPA applies to all lawful communication of misconduct. This restores “no loopholes” protection and cancels the effect of Garcetti v. Ceballos on federal workers.
o Restore the unqualified, original “reasonable belief” standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.
o Make permanent and provide a remedy for the anti-gag statute – a rider in the Treasury Postal Appropriations bill for the past 17 years – that bans illegal agency gag orders. The anti-gag statute neutralizes hybrid secrecy categories like “classifiable,” “sensitive but unclassified,” “sensitive security information” and other new labels that lock in prior restraint secrecy status, enforced by threat of criminal prosecution for unclassified whistleblowing disclosures by national security whistleblowers.
o Codify protection against retaliatory investigations, giving whistleblowers a chance to end reprisals in their early stages.
o Bar the President from imposing ex post facto “intelligence employee” status to strip employees of their merit system rights after they assert them by filing a lawsuit.
o End the Federal Circuit Court of Appeals monopoly on appellate review of the Whistleblower Protection Act (The Court has single-handedly gutted the WPA, leading to a 2-129 record against whistleblowers from October 1994 to October 2006), restoring all-Circuit review, as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act.
o Restore independent due process review of security clearance determinations for whistleblower reprisal, unavailable since a 1985 Supreme Court decision. 
o Provide specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or their staff.
o Strengthen the Office of Special Counsel’s authority to seek disciplinary sanctions against managers who retaliate.
o Authorize the Special Counsel to file friend of the court briefs.

S. 274 does not contain five critical reforms passed in March by the U.S. House of Representatives in legislation, H.R. 985, co-sponsored by Rep. Waxman (D-CA) and Todd Platts (R-PA). The House-passed reforms include protection for national security whistleblowers at the FBI and intelligence agencies, protection for government contractors, protection for federal baggage screeners, jury trials for a fair day in court, and reinforced protections for federally-funded scientists. The House passed H.R. 985 by a 331-94 vote, a veto-proof majority, despite a threat to veto the legislation issued by the Bush administration the day prior to the vote.

Jury trials are the cornerstone of Congress’ Sarbanes-Oxley reform for corporate workers, and were approved in 2005’s Energy Policy Act for employees at the DOE and NRC. Just last month, the Senate Armed Services Committee approved this right for Defense Department contractor employees in an amendment to the FY2008 defense authorization bill sponsored by Senator Claire McCaskill (D-MO), who is also a member of the Governmental Affairs Committee.

Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization with offices in Washington, D.C. and Seattle, WA.
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The Union of Concerned Scientists issued this press release on June 13:

Senate Whistleblower Bill Leaves Out Protection for Scientists

WASHINGTON—The Senate Committee on Homeland Security and Governmental Affairs today approved the Federal Employee Protection of Disclosures Act. While the legislation would strengthen protections for federal whistleblowers who expose waste, fraud and abuse of power, it fails to address scientists who expose the manipulation, distortion, or suppression of their work, according the Union of Concerned Scientists.

A bipartisan House bill, approved overwhelmingly in March, includes strong protections for federal scientists and contractors, giving them the right to expose political interference in their research without fear of reprisals. The bill passed by a 331 to 94 vote, with 229 Democrats and 102 Republicans voting in favor. The Committee on Homeland Security and Governmental Affairs approved the Senate legislation (the Federal Employee Protection of Disclosures Act).

Political interference in science has become a pervasive problem in the federal government. Recent surveys have documented that hundreds of scientists across nine federal agencies fear reprisals when they openly discuss concerns about their agency’s work.

The following is a statement by Francesca Grifo, director of the Scientific Integrity Program at the Union of Concerned Scientists:

“While the Senate bill is a good first step to extending meaningful protections to federal employees who sound the alarm on government waste, fraud and abuse, it does not yet contain language that would ensure that federal scientists are free to do their work without fear of political interference. We have heard from hundreds of federal scientists who fear retaliation for raising concerns about their agency’s mission-driven work.

“The Senate must incorporate equally strong protections for federal scientists in any whistleblower legislation. The Senate should recognize, as the House does, that scientists must be able to work to protect the health and safety of Americans without fear of retribution.”

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