A bill that protects
- By Patrice McDermott
- May 21, 2001
"[Those] who create power make an indispensable contribution to the nation's greatness, but [those] who question power make a contribution just as indispensable for they determine whether we use power or power uses us."
— President Kennedy, 1963
Good-faith whistle-blow-ers represent the highest ideals of public service and, as Thomas Devine of the Government Accountability Project notes, they "put loyalty to the highest moral principles and to country above loyalty to persons, party or government department."
Whistle-blowers provide the pluralism of views and competitive diversity of information necessary for the checks and balances in a democracy. And they represent an important American tradition of individuals challenging abuses of power.
In 1989, the Whistleblower Protection Act took effect. In an attempt to avoid workers' rights being dependent on the court circuit in which they lived, the law gave a monopoly on judicial review of all whistle-blower cases to the newly created Court of Appeals for the Federal Circuit — which began deleting protections. Congress amended the law in 1994 to restore those rights.
But recent decisions by the appeals court continue to compromise those protections, making it virtually impossible for whistle-blowers to protect themselves from retaliation. The circuit appeals court's monopoly on review, moreover, excludes participation by any other district or appeals courts, making Supreme Court review extremely unlikely. The effect is that the federal circuit court reigns supreme over federal employee disputes.
Every year, federal employees rely on Congress to renew an appropriations "rider" that prohibits agencies from enforcing gag orders that sacrifice employee protections and free-speech rights. Millions of employees have been forced to sign such agreements.
They would take effect if Congress failed to renew the "anti-gag" rider. That is too tenuous a thread from which to hang such a critical open-government principle.
This month, a bipartisan group of lawmakers is expected to introduce legislation that would provide protections to whistle-blowers by making the anti-gag rider permanent and would address problems with the federal circuit court.
The current administration has made ethics in government a cornerstone and has called on public servants to maintain the highest standards of integrity. A Jan. 20 memorandum from President Bush to department heads and agencies specifi-cally called upon government employees to "disclose waste, fraud, abuse and corruption to the appropriate authorities."
Without the changes the proposed legislation secures, the result of government employees heeding the president's call may be, in the words of a letter by several prominent whistle-blowers and some whistleblower organizations, "to accumulate more victims of retaliation, without making a serious dent in wrongdoing within the bureaucracy."
McDermott is an information policy analyst with OMB Watch, a government watchdog group in Washington, D.C.