Draining the Swamp Requires Robust Whistleblower Protections and Incentives
| Publication year | 2017 |
Draining the Swamp Requires Robust Whistleblower Protections and Incentives
Jason Zuckerman
Tom Devine
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The Trump Administration has promised to "drain the swamp," combat corporate corruption, and root out waste, fraud, and abuse in the federal government. To achieve those laudable goals, the new Administration will need to appoint effective leaders to the agencies or subagencies charged with enforcing whistleblower-protection laws, and Congress will need to preserve and, indeed, enhance whistleblower protections in the public and private sectors. In this Article, Tom Devine, Legal Director at the Government Accountability Project, and Jason Zuckerman, a whistleblower lawyer and former Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, provide a detailed agenda for the new Administration to ensure effective enforcement of federal whistleblower-protection laws and an agenda for Congress to plug significant gaps in whistleblower-protection laws.
The Trump Administration was elected with a mandate to "drain the swamp" and combat crony capitalism. The Administration has committed to reduce the influence of special interests and "fix a rigged system in which political insiders can break the law without consequence and where government officials put special interests above the national interest."1 Achieving these laudable objectives requires robust protection of
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whistleblowers in the public and private sectors and significant incentives for whistleblowers to risk their careers to disclose fraud.
Whistleblowers are the canaries in the coal mine. They are our eyes and ears on the ground. Whistleblower disclosures are among the most effective tools to ensure that we, as a society, are able to address a variety of issues, such as caring for our veterans, keeping our country safe, and eliminating wasteful spending. Consider the following achievements made possible only by whistleblower disclosures:
• sparking the removal of the painkiller Vioxx, found to cause some 50,000 fatal heart attacks, as well as obtaining stronger consumer-safety enforcement for other prescription drugs, including Crestor (for lowering cholesterol), Meridia (for weight loss), Bextra (for pain relief), Accutane (for acne), Serevent (for asthma), Ketek (for sinusitis, bronchitis, and pneumonia), Actonel (an osteoporosis drug), ProHeart 6 (a dog medication), and Prevnar (an infant vaccine);
• exposing and stopping both a former oil-industry lobbyist, who was appointed to head the White House Council on Environmental Quality and was censoring government reports on climate change, and agency gag orders restricting the public communication of critical climate change research findings;
• helping to convince the House of Representatives to vote against legal immunity for major telecommunications companies, after disclosing that a major telecom's "Quantico Circuit" provided an unknown third party with unfettered access to every mobile communication over its network, including phone conversations, emails, and Internet use, and—after a series of disclosures by National Security Agency whistleblowers through institutional channels, Congress, and eventually the media—achieving the passage of the USA Freedom Act, which outlaws such government surveillance;
• forcing the cancellation of an already-approved and nearly complete nuclear power plant because its construction was compromised by the falsification of X-rays on safety welds, uninspected safety systems, and shoddy materials, such as automobile-junkyard metal substituted for nuclear-grade steel;
• exposing systematic illegality and forcing a new cleanup after the Three Mile Island nuclear incident by revealing utility-company plans to remove a reactor vessel head using a crane whose brakes and electrical system were destroyed in the accident (the vessel head
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consisted of 170 tons of radioactive rubble that, if dropped, could have triggered another accident; whistleblowers went public with the evidence two days before the head lift was to take place and delayed its operation for eighteen months, until the crane was repaired and tested);
• releasing data about possible public exposure to radiation around the Hanford, Washington, nuclear waste reservation, where Department of Energy ("DOE") contractors failed to account for 440 billion gallons of radioactive waste;
• shutting down the manufacturing division of a multinational corporation that had cornered the market on devices that test the accuracy of precision-calibration tools after exposing test results as random (averting tragedies arising from defective goods such as heart valves, computer equipment, automobiles, and airplanes—any product where precise conformance to design specifications means the difference between success and failure);
• precipitating the closure of two incinerators and the cancellation of three others, by disclosing that the operating ones had dumped toxic substances, such as dioxin, arsenic, chromium, mercury, and other heavy metals, into the environment of five states and, in some instances, next to churches and schoolyards;
• sparking public backlashes that forced the government three times to abandon its plans to replace its meat inspections with a corporate "honor system";
• reducing from four days to two hours the amount of time that racially profiled minority women going through U.S. Customs could be stopped on suspicion of drug smuggling, strip-searched, and held incommunicado for hospital laboratory tests, without access to a lawyer or even permission to contact family and in the absence of any evidence that they engaged in wrongdoing;
• exposing Transportation Security Administration orders to cancel Federal Air Marshal coverage for the highest-risk cross-country airplane flights during the middle of a subsequently confirmed, post-9/11, larger-scale terrorist hijacking alert; the orders were rescinded after congressional protests following the disclosure;
• sparking a top-down removal of upper management at the U.S. Department of Justice ("DOJ") after revealing systematic corruption in the DOJ's program to train police forces of other nations to investigate and prosecute government corruption;
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• exposing failure by U.S. Marine Corps procurement officials to deliver mine-resistant vehicles and nonlethal crowd dispersers, which caused deaths of Iraqi civilians and one-third of American combat deaths and injuries before the whistleblowing disclosure led to delivery of the lifesaving equipment;
• increasing the government's average annual civil recoveries for fraud in government contracts from an average of less than $10 million before 1986 to over a billion dollars annually since reviving the False Claims Act that year; that law allows whistleblowers to file lawsuits challenging fraud in government contracts.2
We urge the Trump Administration to strengthen whistleblower protections as a means to expose waste, fraud, abuse, crime, and other illegal activity. We specifically recommend that the new Administration do the following:
• Fund the programs that protect whistleblowers. The Office of Special Counsel ("OSC"), OSHA's Whistleblower Protection Program, and other agencies or subagencies that protect whistleblowers are severely underfunded and are experiencing unprecedented backlogs. The Administration should urge increased funding for these critical programs, which protect the public interest and save taxpayer dollars.
• Advocate for legislation to expand whistleblower protections. While Congress strengthened whistleblower protections for federal employees in 2012, there are still significant gaps in statutory protections available to certain government employees and contractors. The Administration should work with Congress to enact appropriate legislation to protect these individuals, including providing jury-trial access.
• Protect public- and private-sector employees against retaliation through criminal investigations and prosecutions when they engage in protected whistleblowing for which it would be unlawful to fire them or take other employment actions.
• Provide independent due-process rights for intelligence-community employees and contractors who make lawful whistleblower disclosures.
• Finally, support strengthening and more aggressively enforcing current whistleblower-reward laws, such as the qui tam provisions of
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the False Claims Act, the Securities and Exchange Commission ("SEC") whistleblower-award program, and similar reward laws.
During his campaign, President-elect Trump promised to root out waste, fraud, and abuse in government, and he often cited the U.S. Department of Veterans Affairs ("DVA") as a prime example of government mismanagement. To clean up the DVA and effectively identify and cure government corruption and waste, it is critical to protect whistleblowers. The Trump Administration should, first, strengthen OSC, the agency charged with enforcing the Whistleblower Protection Act, as well as the Merit Systems Protection board ("MSPB"), which adjudicates cases; second, appoint independent and experienced Inspectors General; and, third, enact critical legislative reforms to close loopholes in protection and due process for federal workers.
A. Strengthen OSC's Enforcement of the WPA and Fund OSC's Critical Good Government Mission
OSC is an independent federal investigative and prosecutorial agency whose primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices ("PPP"), especially reprisal for whistleblowing, and by providing an independent, secure channel for most federal workers to disclose violations of laws, gross...
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