The Senator Who Killed Federal Whistleblower Rights
by Deep Harm, Sun Feb 15, 2009 at 06:10:19 PM PST
LINK

In the din of battle over the stimulus package, the struggle for federal whistleblower protections never rose above a skirmish in the public debate. Despite that, the death of the Platts-Van Hollen amendment was a huge loss that threatens to undermine everything the final package proposes to achieve by sharply limiting transparency and accountability at federal agencies tasked with disbursing and overseeing the allocated funds.

For years, federal whistleblower rights have received resounding votes of approval in separate House and Senate bills - only to die in Senate back rooms, garrotted by secret "holds" that blocked the bills from reconciliation and a final vote. This time, though, it is no secret that the person who single-handedly killed Platts-Van Hollen was Senator Susan Collins (R, Maine)

Deep Harm's diary :: ::
The Hope

At federal agencies tasked with protecting citizens from financial fraud, dangerous food and drugs, terrorism, environmental pollution, healthcare abuses and more, employees fear reporting problems because they have almost no protection from retaliation by supervisors, typically career officials, who have no reason to fear being held accountable. Rather, the retaliators are likely to receive promotions and generous cash awards.

The dangers of whistleblowing as a federal employee are extraordinary. No private employer, no state or local government, has the power and reach of the federal government to punish whistleblowers, wherever they are, even after employment has ended. No-fly lists, surveillance and trumped up charges are just a few of the ways that agencies send the message to other federal workers that protecting the public interest will not be tolerated.

At the same time, federal whistleblowers have shockingly weak legal protections. Long ago, Congress decided that federal employees should be forced to plead their case for relief in secretive courts that offer few due process rights and find in favor of whistleblowers one to four percent of the time.

The Platts-Van Hollen amendment would have given federal workers rights similar to those that other workers enjoy, establishing a transparency that would have done wonders to clean up corruption and waste at federal agencies. The amendment incorporated reforms included in H.R. 985, which the House and Senate overwhelmingly passed in the last Congress. But, in the compromise process, the bill died thanks to "secret holds by two Senators "as a courtesy to requests by the Department of Justice and CIA, respectively." In other words, two offices named in major abuses of the public trust were allowed to negate efforts to make those offices more accountable.

The Reality

As one of three Republicans willing to vote for the stimulus package, Senator Collins wielded a lot of power that could have been used to ensure that federal whistleblower protections were included in the final bill. Instead, she used that power to kill the legislation.

Turn Maine Blue writes:

One really has to wonder why Collins would object to such a provision, especially with her experience as chair and ranking member of the Senate's Committee on Homeland Security & Governmental Affairs, which, according to Senate Rule XXV(k):

(2) (The) committee shall have the duty of -
(B) studying the efficiency, economy, and effectiveness of all agencies and departments of the Government;

Like TPM, my inquiry to Sen. Collins office for an explanation has gone unanswered.

Actually, many have been disappointed with the oversight of security-related activities by Collins as chair of the Homeland Security and Governmental Affairs Committee, which makes her adoption of the security agencies' position on whistleblower protections unsurprising. The Portland Press Herald reminds us that, as a chair of the Homeland Security committee, Collins made few investigations into Iraq contracts, despite considerable evidence that investigation was needed.

"There was an extreme lack of congressional hearings at a time when Collins' committee should have been at the front of the pack," said Charles Tiefer, a government contracting expert at the University of Baltimore Law School who has been critical of the Bush administration and favors aggressive congressional oversight.

"During the years 2003 to 2006," said Tiefer, a former solicitor and deputy general counsel of the U.S. House of Representatives, "negative information about Halliburton would come out from either the Defense Department's auditor reports or the occasional whistleblower."

Partial credit for sinking the Platts-Van Hollen amendment goes to the Washington Post for publishing a scandalously inaccurate editorial attacking the amendment. (See Jess Radack's diary.) Although good government groups provided powerful rebuttals of the editorial, the Post did not alter its position.

The Future

"It is disappointing Sen. Susan Collins (R-Maine) insisted on removing these important protections. I am committed to reintroducing this bi-partisan legislation when we return in late February. It is essential we ensure accountability and transparency in government in order to protect the taxpayers," (Representative Chris) Van Hollen (D-Kensington] said in a statement.

Actually, "disappointing" greatly understates the impacts of leaving those in charge of critical national programs unprotected from retaliation. But, past treatment of similar legislation gives little reason to believe that the Van Hollen bill will become law any time soon. Meanwhile, Senator Collins will retain - possibly forever - the title of "The Senator Who Killed Federal Whistleblower Rights."


Taking Action

Henceforth, whenever any of you learn of massive financial fraud, failed disaster response, national security holes or forgotten veterans, be sure to remember Senator Susan Collins and send her your complaints.

Washington Office

413 Dirksen Senate Office Building
Washington, DC 20510
Main: (202) 224-2523
Fax: (202) 224-2693

Local Telephone

* Augusta Office (207) 622-8414
* Bangor Office (207) 945-0417
* Biddeford Office (207) 283-1101
* Caribou Office (207) 493-7873
* Lewiston Office (207) 784-6969
* Portland Office (207) 780-3575

Local Fax

* Augusta Office (207) 622-5884
* Bangor Office (207) 990-4604
* Biddeford Office (207) 283-4054
* Caribou Office (207) 493-7810
* Lewiston Office (207) 782-6475
* Portland Office (207) 828-0380

For updates on the status of the federal whistleblower legislation, visit the website of the Make It Safe Campaign and Coalition. Donations are being sought by the group for this year's conference on whistleblower rights in Washington, D.C.

UPDATE: Those seeking more background information on whistleblower protections will find this Congressional Quarterly publication (PDF) helpful.

From Editor Betsy Combier:
Senator Collins was mentioned in the Abramoff scandal:
Bush Administration's David Safavian Admits a Friendship With Disgraced Lobbyist Jack Abramoff
In Washington, the "Politics of Getting Away With It" (posted 3/30/2006)

Source: Collins Strips Stim Bill Of Whistleblower Protections
By Zachary Roth - February 11, 2009, 6:57PM
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Another great coup for the centrists!

Sen. Susan Collins, the Maine GOP dealmaker who's been in the limelight this week for helping to pass a watered down stimulus, has been talking a good game about the need to avoid wasting taxpayer money. But it looks like Collins also worked today to strip from the final bill a measure that's crucial to exposing that waste.

Here's what happened:

The House stimulus bill contained a provision designed to protect federal whistleblowers. Currently, those protections are shockingly weak. According to the Project On Government Oversight, (see article below)whistleblowers who are fired or demoted can file a complaint with a government board -- but over the last eight years, that board has ruled in favor of whistleblowers only twice in 55 cases.

More to the point, the protections were designed to encourage federal workers to point out cases where taxpayer money is subject to waste, fraud, or abuse -- a legitimate concern when Congress spends $800 billion, and one that centrists and Republicans have been particularly exercised about.

Yesterday, 20 members of the House, from both parties, sent a letter to House negotiators urging them to ensure that the protections remained.

But, according to a person following the bill closely, Collins used today's conference committee to drastically water down the measure, citing national security concerns as the reason for her opposition. In the end, the protections were so weakened that House negotiators balked, and the result was that the entire amendment was removed.

According to the person following the bill, Collins was the "central roadblock" to passing the protections.

To make matter worse, Collins is the ranking Republican on the Senate Homeland Security and Government Affairs commitee, which, as an oversight committee, might be expected to see its role as protecting whistleblowers. She also sits on the Senate appropriations committee, giving her a strong position from which to wield influence during today's negotiations.

Though Senate leader Harry Reid supported the protections, said the source, he wasn't willing to strong-arm Collins on the issue, given her central role in negotiations over the stimulus bill as a whole.

So when, in the coming months, conservatives start jumping up and down over the fact that money from the stimulus bill is being wasted, as they surely will, it's worth remember that a key measure designed to help expose that waste was removed from the bill -- and by a senator said to be a champion of fiscal discipline.

Senator Collins's press secretary did not immediately respond to a request for comment.

Whistleblowers need more protection
Danielle Brian, Kennebec Journal & Morning Sentinel 02/11/2009
LINK

At a time when Congress is poised to spend hundreds of billions of dollars to stimulate our economy, federal employees must be free to effectively oversee the use of these funds without fear of retaliation.

For at least two decades, federal whistleblower laws, while looking good on paper, have failed to protect federal workers from being fired, demoted or harassed when they report waste, fraud and abuse.

On Jan. 28, the House unanimously agreed to a bipartisan amendment ensuring the oversight of the hundred of billions of dollars Congress will be spending on an economic stimulus package. The bipartisan amendment will protect federal employees who report waste, fraud and abuse in government. Maine freshman Rep. Chellie Pingree supported the amendment.

Now it is up to the Senate to agree to strong whistleblower protections in the final stimulus package. We expect Maine Republican Sen. Susan Collins, a new member of the Senate Appropriations Committee and a longtime proponent of transparency and accountability in government contracting, to be key to the final version.

The House amendment incorporates the Whistleblower Protection Enhancement Act of 2007, a bipartisan bill sponsored by Rep. Henry Waxman, D-Calif., and then-Rep. Tom Davis, R-Va. The House approved the bill by a vote of 331 to 94.

The Senate stimulus package, while offering whistleblower protections to state and local employees involved in stimulus spending, does not extend these protections to federal whistleblowers.

It is crucial that the final stimulus package extend whistleblower protections to federal employees.

Federal workers who expose lax oversight of drugs at the Food and Drug Administration, cozy relationships between FAA inspectors and certain airlines, hundreds of billions of dollars in conscious "underestimates" for the cost of prescription drug coverage, and billions of dollars wasted in no-bid defense contracts face intimidation and retaliation and often are fired or demoted. And their efforts to go through the chain of command or seek relief from retaliation by agency managers nearly always fail.

The reasons federal employees have no protections are complex, and have to do with unforeseen defects in a succession of efforts by Congress to strengthen the law. But the law has failed to live up to Congress's intent.

House Speaker Nancy Pelosi spoke in favor of a taxpayer-accountability amendment to the stimulus bill, saying, "It is inconceivable that the people's business had been conducted for so long without whistleblower protections to encourage every public employee to do the right thing."

Inconceivable, but true.

Here's how the system works right now. Whistleblowers who are fired or demoted can file a complaint with the Merit Systems Protection Board (MSPB).

Whistleblowers who try to fight retaliation by appealing to the MSPB face daunting odds. In the past eight years, the board has heard 55 cases; whistleblowers have won only two .

Whistleblowers who appeal the decision of the MSPB have access to only one court, the Federal Circuit Court of Appeals, a special federal circuit appellate court designated to hear all whistleblower appeals. This court consistently has ruled against whistleblowers. And its decisions over the years have gutted the rights for whistleblowers that Congress intended.

Since 1994, when Congress last strengthened whistleblower protections for federal workers, whistleblowers have won only three out of 206 cases filed in the Federal Circuit Court of Appeals. That's a success rate of about one-half of one percent.

This legacy of failed protections is bad not only for whistleblowers, but also for American taxpayers. It sends a strong message to federal workers: Keep your head down and don't rock the boat. If you see waste, fraud and abuse, keep quiet or risk your career.

We believe that the accountability in federal procurement will not be possible until federal workers, who are on the front lines of the oversight of billions of stimulus dollars, can believe they will be protected from retaliation or worse at their job sites.

Taxpayers see the connection between strong whistleblower protections and accountability for how these enormous amounts of money are dispensed. Our leaders in Congress must listen.

Danielle Brian is executive director of the Project On Government Oversight in Washington, D.C., www.pogo.org.

Reader Comments

Mikulski's Stimulus Amendment In, Van Hollen's Out - Southern Maryland Headline News
Originally posted on: February 12, 2009
By LAUREN C. WILLIAMS
LINK

WASHINGTON (Feb. 12, 2009) -- Maryland's congressional delegation won one and lost one in the negotiations over the $790 billion stimulus package awaiting a vote on Capitol Hill.

Sen. Barbara Mikulski, D-Md., managed to retain her provision to provide car buyers with tax relief in the bill, but Rep. Chris Van Hollen's, D-Kensington, amendment to protect federal and state whistleblowers was axed in the name of compromise.

The Senate voted Tuesday to include Mikulski's Auto Assistance Ownership Amendment in the then $900 billion bailout package, which would give a tax break to car buyers, allowing them to deduct loan interest and state sales taxes on purchases of new vehicles.

Mikulski's amendment, co-sponsored by Sen. Ben Cardin, D-Md., retroactively applies to purchases from Nov. 12, 2008, to Dec. 31, 2009. To qualify, families' total annual income must be under $250,000, and individuals under $125,000.

"Everyone wants to save auto manufacturers, but no matter how much government aid we give to auto makers, they can't survive if consumers don't start buying cars," Mikulski said in a statement.

But with a vote on the stimulus likely this weekend, sacrifices were made in order for Congress to reach agreement and Van Hollen's Whistleblower Protection Act was removed from the legislation.

"It is disappointing Sen. Susan Collins (R-Maine) insisted on removing these important protections. I am committed to reintroducing this bi-partisan legislation when we return in late February. It is essential we ensure accountability and transparency in government in order to protect the taxpayers," Van Hollen said in a statement.

The whistleblower amendment would have protected federal and state whistleblowers who report fraud and abuse. Van Hollen introduced the amendment with Rep. Todd Platts, R-Pa.

"It is abundantly clear that we must make investments now to stimulate our economy, get people back to work and get our economy back on track," Van Hollen said in a news release in January when the act was introduced to the stimulus bill. "However, the American people deserve to know that these investments are being well-spent, and that's why this bi-partisan whistleblower protection measure is so important."

But the removal of the bill from the legislation seems counter-productive to its advocates.

Eliminating whistleblower protections from the bill is "a license to fraud" and can cost the taxpayers billions, said Stephen Kohen, president of the National Whistleblowers Center. "It becomes difficult for an honest federal employee to stick their nose out."

The protection act would make it easier for federal and state employees to report potentially dishonest activity without suffering consequences from employers.

"It's inexcusable to let the spending start without letting the whistleblowers keep it honest," said Tom Devine the legal director at the Government Accountability Project.

And Kohen said: "You can't trade tax cuts for accountability."

Capital News Service contributed to this report.

GAP Statements and Explanation of Whistleblower Amendment in Stimulus Package
LINK

On Jan. 28, 2009, the House of Representatives unanimously adopted as part of the economic stimulus legislation, H.R. 1, an amendment by Todd Platts (R-PA) and Chris Van Hollen (D-MD). The amendment adds landmark whistleblower protections for federal employees, restoring and strengthening the “Whistleblower Protection Act.”

GAP legal director Tom Devine commented, “The House-passed whistleblower reform would be a legal revolution in transparency through accountability. The bill creates a global gold standard for government employee free speech rights.”

The Platts / Van Hollen amendment was approved unanimously by voice vote. The amendment is identical to the House-passed “Whistleblower Protection Enhancement Act” from the previous Congress. It overturns over a decade’s worth of hostile court decisions from the Federal Circuit Court of Appeals that defied congressional intent by gutting the protections available to federal employees. The legislation also removes the Federal Circuit’s monopoly jurisdiction on interpreting the law. Importantly, the amendment also provides employees with the right to a jury trial in federal court if they do not receive a decision within 180 days from the Merit Systems Protection Board. The amendment also extends protections to employees in the national security agencies.

For a complete summary of the legislation, and an explanation of its provisions, click here. (This is a description of WPAA H.R. 985 from last Congress - the amendment approved yesterday is identical to this.)

The amendment received overwhelming support from key members of the House of Representatives yesterday. To read a press statement from the Speaker of the House, Nancy Pelosi, after the whistleblower amendment was added to the stimulus legislation, click here. For excerpts from other Member’s statements in support of the bill, see below.

The stimulus legislation now moves on to the Senate, which has not yet included an analogous whistleblower provision for federal employees.

“With such overwhelming support in the House, it will clearly be up to the Senate to determine if this vital accountability provision survives in the economic stimulus legislation,” stated GAP legislative representative Adam Miles, who added that he’s optimistic that the Senate will support whistleblower rights for federal employees. The Senate passed whistleblower legislation in December 2007.

Congressional Statements in Support of Platts / Van Hollen Whistleblower Amendment on Economic Stimulus Legislation (1/28/09)

Speaker of the House, Nancy Pelosi (D-CA) -- This act that we are passing today has unprecedented accountability measures built in, providing strong oversight, a historic degree of public transparency and no earmarks…With the adoption of the bipartisan Platts-Van Hollen amendment today, a broad-ranging coalition of public interest groups say we have set “a new standard of accountability and transparency by empowering Federal employees to call attention to waste, fraud, and abuse of tax dollars without fear of retaliation.”

Representative Todd R. Platts (R-PA) -- Mr. Chairman, the amendment that I'm offering with my colleague from Maryland (Mr. Van Hollen) would insert the text of the Whistleblower Protection Enhancement Act--H.R. 985 in the last session--into the underlying legislation. H.R. 985 passed by a bipartisan vote of 331-94 in 2007. This amendment strengthens the inadequate protections currently afforded to Federal employees who report illegalities, gross mismanagement and waste, and specific dangers to the public health and safety. As proposed, the underlying bill includes whistleblower protections for the employees of recipients of Federal funds approved through this bill, including State and local employees and government contractors. Federal employees responsible for overseeing the hundreds of billions of dollars in spending in this bill, however, will remain inadequately protected unless this amendment is adopted.

With the enactment of this amendment, the court and administrative decisions that undermine whistleblower protections would be overturned. This amendment . . . grants employees the right to a jury trial in Federal court if the [MSPB] does not take action within 180 days, and ends the Federal Circuit Court's monopoly jurisdiction. Given the amount of money involved in the underlying legislation, Federal whistleblower protections will be that much more important to ensure effective oversight and accountability. As such, I urge adoption of this amendment.

Representative Chris Van Hollen (D-MD) -- ...This economic recovery package contains about $550 billion in public funds to support important national priorities. We need to make sure these funds are effectively spent and that they're not lost through any waste, fraud or abuse. The underlying bill provides protection for whistleblowers at the State and local level. What this amendment does is to make sure that our Federal employees also have whistleblower protections so if they see waste, fraud or abuse, they can report it without fear of retaliation or harm.

And as Mr. Platts has said, what we're doing is simply putting the Whistleblower Protection Act that passed this body by a vote of 331-94 into this bill to make sure that these public funds are safeguarded and that we ensure accountability in the process. I think all of us would agree, regardless of our position on whether or not we should be putting any particular amount into public investment, we want that money safeguarded and protected against waste, fraud, and abuse. That's what this amendment is about.

Representative Bruce Braley (D-IA) -- Mr. Chairman, I am very delighted, as the floor manager for the Whistleblower Protection Enhancement bill of 2007, to be here to speak in strong support of the Van Hollen-Platts amendment. There is no greater deterrent to waste, fraud, and abuse in the Federal Government than...providing strong remedies to Federal whistleblower[s], and this amendment does just that...

The inclusion of the Whistleblower Protection Enhancement Act in H.R. 1 gives us a chance to swiftly enact strong and urgently needed federal whistleblower protections. It will also help ensure that the taxpayer dollars allocated by this important economic stimulus bill are spent wisely and responsibly.

Whistleblowers have long been instrumental in alerting the public and the Congress to wrongdoing in Federal agencies. In many cases, the brave actions of whistleblowers have led to positive changes that have resulted in more responsible, safe, and ethical practices. In some instances, the actions of whistleblowers have even saved lives. Unfortunately, despite the importance of whistleblowers in ensuring government accountability and integrity, court decisions by the U.S. Court of Appeals for the Federal Circuit have undermined whistleblower protections and have unreasonably limited the scope of disclosures protected under current law.

Representative Chellie Pingree (D-ME) -- Mr. Chairman, I just want to add my support to this measure and thank the Members of this body who have worked so hard to bring this here previously and have also seen the wisdom of adding this into the stimulus package.

We have all been asked so many times how we're going to make sure this money is well spent, how we're going to make sure that our constituents get the value for which is in this. And I think this is the best protection that we have making sure that those people who have the information are there to tell us that.

Representative Edolphus Towns (D-NY) -- Chairman of the Committee on Oversight and Government Reform -- Mr. Chair, I rise in strong support of the bipartisan Platts/Van Hollen amendment. This amendment is identical to H.R. 985, the Whistleblower Protection Act of 2007, which passed the House with an overwhelming vote of 331 to 94, and which was reported by the Oversight and Government Reform Committee by a vote of 28 to 0. . . .

The amendment addresses several court decisions which have ignored the intent of Congress and created loopholes which undermine the current whistleblower statute's effectiveness and unreasonably limit the nature of disclosures protected under current law. In addition, the amendment makes clear that national security workers, employees of the Transportation Security Administration, employees of government contractors, and workers who attempt to protect the integrity of federal science are all entitled to protection from retaliation for blowing the whistle.

Protecting whistleblowers is not a Democratic or Republican issue. It is an issue of importance to all Americans, because they are one of our most potent weapons against waste, fraud, and abuse. Ensuring that those who blow the whistle are protected from retaliation benefits all Americans.

Representative Bennie Thompson (D-MS) -- Chairman of the Committee on Homeland Security -- Mr. Chair, I rise today in support of the Amendment offered by Mr. Platts and Mr. Van Hollen, which clarifies and expands whistleblower protections to federal employees and contractors. In particular, I would like to speak in support of the provision to grant the Transportation Security Officers (TSOs) of the Transportation Security Administration the whistleblower protections they so rightly deserve. Mr. Chairman, our TSOs are not second class citizens and should not be treated as such. . . . If you do not set up a system where employees are protected, there is a disincentive to report offenses and the system remains inefficient and hinders transportation security. In the end, the American public may end up paying the price in terms of its security.