Whistleblower Protection Enhancement Act of 2007

In the 110th Congress, Congress considered the Whistleblower Protection Enhancement Act of 2007 (H.R.985), a measure that would provide greater protection for individuals who go public with information of suspected corporate or governmental wrongdoing. These "whistleblowers" often suffer negative repercussions for their actions.

Organizations including the Government Accountability Project (GAP) support the bill. GAP argues these reforms are necessary so government employees are “able to defend themselves when they risk their careers to defend the public.” According to the organization, government employees currently face an uphill struggle to gain protection from retaliation under the law when going public. The Federal Circuit Court of Appeals, which has monopoly jurisdiction over these cases, has interpreted existing law in such a way that whistleblowers have lost 178 of the last 180 court cases relating to protection. The Act would end this monopoly and put into law new protections which GAP believes are necessary in order to protect government employees from retaliation for reporting misconduct.

Current status
The Whistleblower Protection Enhancement Act of 2007 (H.R. 985) has passed the House and remains stuck in the Senate, where Sen. Tom Coburn (R-Okla.) has placed a hold on the bill, preventing its speedy passage (see below). 

Bill summary
The Whistleblower Protection Enhancement Act of 2007 was designed to provide better federal government protection for those who go public with suspected wrongdoing. Notable provisions in the bill included “no loophole” whistleblower protections for those paid with federal funds, including contractors, national security agency workers, and baggage screeners.

Specifically, the bill would:


 * Close judicially-created loopholes in whistleblower protections by:
 * Codifying the legislative history for “any” protected disclosure, meaning the bill would apply to all lawful communication of misconduct. This restores “no loopholes” protection and cancels the effect of the Supreme Court’s Garcetti v. Ceballos decision limiting federal workers’ First Amendment rights.
 * Restoring the unqualified, original “reasonable belief” standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.


 * '''Close statutorily created loopholes on who receives whistleblower protections by extending them to:
 * All national security whistleblowers, including those at the FBI and other intelligence agencies.
 * Federally-funded contractors.
 * Roughly 40,000 airport baggage screeners.
 * Those who disclose misconduct in litigation testimony, or who refuse to violate the law.


 * Protect whistleblowers against a greater range of retaliatory actions by:
 * Making permanent and providing a remedy for the anti-gag statute, which banned illegal agency gag orders. The anti-gag statute neutralizes hybrid secrecy categories like “classifiable,” “sensitive but unclassified,” “sensitive security information” and other labels that lock in prior restraint secrecy status, enforced by the threat of criminal prosecution for unclassified whistleblowing disclosures by national security whistleblowers.
 * Codifying protection against retaliatory investigations, giving whistleblowers a chance to end reprisals by challenging relations disguised as preliminary “fact-finding” investigations.


 * Provides normal due process rights to whistleblowers by:
 * Providing those covered by the bill access to jury trials in federal district court to challenge reprisals.
 * Restoring independent due process review of security clearance determinations for whistleblower reprisal (this had been unavailable since a 1985 Supreme Court decision).


 * And:
 * End the Federal Circuit Court of Appeals monopoly on appellate review of the Whistleblower Protection Act, restoring all-Circuit review, as in the original 1978 Civil Service Reform Act and the Administrative Procedures Act.
 * Create specific protection in the law for scientific freedom, making it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research.
 * Define the "clear and convincing evidence" legal burden of proof for an employer’s affirmative defense of independent justification after an initial reprisal case is established.
 * Provide specific authority for whistleblowers to disclose classified information to members of Congress on relevant oversight committees or their staff.
 * Provide compensatory damages and reimbursement for expert witness fees to prevailing whistleblowers, establishing consistency with other remedial employment laws.
 * Modify the burdens of proof to make it more realistic for the Office of Special Counsel to seek disciplinary accountability against those who retaliate.
 * Provide the Special Counsel with authority to file "friend of the court" briefs in support of whistleblower rights cases appealed from the administrative level.

House passage
The Act was introduced by Rep. Henry Waxman (D-Calif.) on February 12, 2007 and was passed by the House on March 14. 

Senate Passage
In the Senate the bill was received from the House and referred to the Committee on Homeland Security and Governmental Affairs. On June 13, 2007, the committee overwhelmingly approved the bill and sent it to the floor for action (only Sen. Tom Coburn (R-Okla.) dissented). Following the committee's approval, Coburn placed a hold on the legislation, effectively blocking it from expedited passage through unanimous consent.

On December 17, 2007 the Senate bill was passed by unanimous consent.

Criticisms and commendations
The Government Accountability Project (GAP) applauded the passage of the bill in the House. GAP Legal Director Tom Devine, commented, "Today the House of Representatives whistled the truth... If the Senate follows suit, this reform will be the strongest whistleblower law ever passed by Congress, or any other nation." He emphasized the bill’s underlying significance, stating "This is the foundation for serious congressional oversight, with investigations that uncover the iceberg instead of just the tip. The House acted wisely to protect its witnesses."

Devine added, however, that GAP’s support for the final bill was based on commitments to address concerns and clarify that last-minute amendments will not weaken national security whistleblower rights.

GAP Legislative Representative Adam Miles also commented on President George W. Bush's threat of a veto on the legislation, stating "Whistleblowers are employees who exercise freedom of speech to challenge abuses of power that betray the public trust. This reform is simply a composite of best practices in current whistleblower laws. The President’s intolerance raises an obvious question: Why? There is no excuse to veto a breakthrough codifying measures that have proven most effective for government accountability." The bill passed the House by a veto-proof majority.

GAP also applauded the Senate Armed Services Committee for approving an amendment to the FY 2008 Defense Authorization sponsored by Sen. Claire McCaskill (D-Mo.) to enhance whistleblower protections for employees of Department of Defense (DOD) contractors. GAP hoped that the support of this bill might indicate future Senate support of the Whistleblower Protection Enhancement Act, as the two bills had some similar provisions.

External resources

 * Government Accountability Project Action Alert on Senate consideration of the bill

External articles

 * Tom Devine, "Whistling Freedom," TomPaine, March 8, 2007.