April 10, 2019

Wyden Statement on the Thirtieth Anniversary of the Whistleblower Protection Act

Mr. President, thirty years ago today, the Whistleblower Protection Act was signed into law. To call it a triumph doesn’t do justice to the sheer number of years and people it took on both sides of the aisle to overcome numerous obstacles and enact federal protections for federal government employees who step forward and do what we all should do: expose wrongdoings in order to hold government officials and agencies accountable.

Congressional efforts to protect whistleblowers date back to at least 1912 with the enactment of the Lloyd-La Follette Act.  This act guaranteed the right of federal employees to communicate with members of Congress without the oversight of their employer, and prohibited compensation to managers who retaliated against employees attempting to disclose whistleblower matters.

However, empowering federal employees to speak up and speak the truth was, and continues to be, an ongoing struggle, one that has often pitted Congress against the executive branch.  When President George H.W. Bush signed the Whistleblower Protection Act into law that April morning in 1989, it came after his predecessor President Ronald Reagan had vetoed a similar bill despite the fact that it had been unanimously adopted by both the Senate and the House. 

The Whistleblower Protection Act, itself, was first introduced by Representative Pat Schroeder of Colorado as an amendment to the Civil Service Reform Act of 1978 and then as a stand-alone bill in 1982.  The principal purpose of the bill was to block retaliation against employees who came forward, a never-ending problem.   The bill would have allowed “a person claiming to be aggrieved by a prohibited personnel practice to: (1) bring a civil action in a U.S. district court against the employee or agency involved (respondent); or (2) seek corrective action through the (Merit Systems Protection) Board. 

While that particular bill ultimately died after receiving unfavorable comments from the U.S. Government Accountability Office (GAO) and the Merit Systems Protection Board, which adjudicates whistleblower complaints, its failure didn’t deter our colleagues.

By the time 1989 rolled around, members of both the House and the Senate — including Senator Carl Levin of Michigan, who spearheaded efforts in the Senate — had worked together for years to find a compromise and pass legislation that protected those employees whose disclosures revealed waste, fraud, or abuse.  Between May of 1982 and September of 1989, 28 bills and resolutions with whistleblower protections built into them were introduced — many of them with dozens and dozens of cosponsors. 

Since the passage of the Whistleblower Protection Act thirty years ago, Congress has continued to improve protections for whistleblowers — notably with the passage of the Intelligence Community Whistleblower Protection Act of 1998; the Whistleblower Protection Enhancement Act of 2012; the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017; and more recently the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017.

Unfortunately, despite all of these efforts, becoming a whistleblower is still a perilous path.  In its latest budget justification, the Office of Special Counsel – the agency that investigates retaliation against federal whistleblowers -- reported that in Fiscal Year 2018 that agency received over 4,100 complaints of retaliation, otherwise known as prohibited personnel practices.  This, according to OSC, is a new agency record!   And that’s not a record that anyone should be proud of.

As much as today is a celebration of the Whistleblower Protection Act and the work of the many people it took to make those protections law, it is a greater celebration of the courage whistleblowers embody when they step forward to shine a light on waste, fraud, abuse and mismanagement in the government. Their bravery and sacrifice is invaluable, and for that we thank them.  Unfortunately, coming forward to do what is right still requires too much of both.

Consequently, Congress still has more work to do to protect whistleblowers and I call on my colleagues to remember the value of citizens being able to blow the whistle.  As Representative Schroeder said early on in her efforts to help whistleblowers:

“If we in Congress are going to act as effective checks on excesses in the executive branch, we have to hear about such matters.”