Whistleblower Protection & the First Amendment

As we begin to reflect on our past campaigns and achievements, we have noticed a common theme–The First Amendment. This is a vital tool for many whistleblowers who have faced, or continue to face, retaliation, harassment and isolation.

This summer, co-founder and legal director of the Government Accountability Project, Tom Devine, participated in the TedxWilmington Salon “Whistleblowers & the First Amendment”. He discussed the critical importance of the first amendment for whistleblowers. Devine also highlights the growing solidarity between whistleblowers and their advocates, and the triumphs won in the last 40 years. For example, Tom won the first U.S. Supreme Court test of the Whistleblower Protection Act last year and has been a leader in the campaigns to pass or defend 33 major national or international whistleblower laws. To hear more, please watch the video below:

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UCS Comments on DOE Questionnaire

Statement from Andrew Rosenberg, Director of the Center for Science and Democracy at Union of Concerned Scientists regarding President-elect Donald Trump’s transition team disavowing a 74-item questionnaire that was sent to the Department of Energy last week.

It’s great to see that the Trump transition team is admitting that demanding a list of employees was a mistake. This action was clearly inappropriate, and could intimidate Department of Energy employees and dissuade them from the important work they do… The swift and strong negative response to this incident should signal to the Trump administration that the scientific community is organized, engaged, and watching closely to make sure that independent science is respected an

Read more here.

Posted in Press release

U.S. Forest Service Burned at Congressional Hearing, Admits No Fault

A year ago, Sharyl Attkisson aired the story of U.S. Forest Service whistleblower Alicia Dabney on Full Measure. An advocate for minority employees, Lesa Donnelley, testified:

In the last eight years there’s been virtually no response to our requests. I wish I could say there has been improvement. I can’t. Things have gotten worse in terms of the blatant harassment of women and minorities, people with disabilities.

Congressmen Gowdy (R-SC), Hice (R-GA), and Congresswoman Speier (D-CA) scolded Forest Service official Lago during a recent congressional hearing.

Full Measure coverage on the hearing can be found here.

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MAKE IT SAFE COALITION PRAISES HOUSE VOTE TO MAKE CONTRACTOR WHISTLEBLOWER RIGHTS PERMANENT

Action follows Senate passage institutionalizing landmark reform

The Make It Safe Coalition (MISC) praised House action to unanimously approve S. 795, legislation that makes permanent a 2012 pilot program creating best practice whistleblower rights for contractor employees outside the Intelligence Community. (IC) The Make It Safe Coalition consists of whistleblowers and 75 NGO’s whose common mission is stronger protection for employees who use free speech rights to challenge abuses of power that betray the public trust.

In 2012 Congress, led by Senator Claire McCaskill, enacted a four year pilot to expand preexisting rights for Pentagon contractors and those receiving stimulus funds. Congress acted after Inspectors General credited prior whistleblower laws as effective resources to reduce fraud, waste and abuse in government spending. The pilot program provided jury trial rights for contractor whistleblowers that actually are far stronger than those available for government employees.   Legislation to make the rights permanent unanimously passed the Senate earlier this year. Lead sponsors to the House action were Rep. Jason Chaffetz (R.-Utah), and Rep. Elijah Cummings (D.-Md.)

While MISC applauded the action, it noted that a loophole created in 2012 continues to exclude IC contractor employees. While permitting whistleblower protection for the rest of government spending, in 2012 the House Permanent Select Committee on Intelligence (HPSCI) forced removal of preexisting whistleblower rights for IC contractors, an action that Edward Snowden has explained helped convince him to bypass normal channels in favor of media leaks.  This Congress, both HPSCI and the Senate Select Committee on Intelligence (SSCI), have refused to permit action on or even to discuss S. 794, legislation that would extend whistleblower protection to IC contractors.

Statements by MISC Steering Committee representatives follow:

Tom Devine, Government Accountability Project legal director: Whistleblower protection may be the only major issue on Congress with a unanimous bi-partisan mandate for good government reform.  Today’s unanimous House vote institutionalizes the infrastructure for best practice legal rights when contractor whistleblowers defend taxpayers against fraud, waste and abuse. Unfortunately, whistleblower rights are weaker for actual government civil service employees, who do not have access to jury trials. Worst of all, independent due process rights are nonexistent for Intelligence Community contractors. The result: there is no accountability for what often are government’s worst abuses of power and corruption, and the lack of rights working within the system leads to classified media leaks.  Congress needs to finish what it started with this reform.

 

Emily Gardner, Public Citizen, worker health and safety advocate: We commend Congress for taking action on this commonsense, bipartisan bill to make permanent an important program safeguarding certain federal contractor employees from employer retaliation.  Whistleblowers play a critical role in protecting our democracy from waste, fraud and abuse.  For this very reason, we also urge Congress to extend similar protections to all federal workers, especially intelligence community contractors, who remain virtually defenseless against retaliation when they bravely report corruption and other abuses of power.

 

Danielle Brian, Project On Government Oversight Executive Director: As our government’s reliance on federal contractors and grantees continues to increase, it is important to recognize that those individuals should have the same whistleblower protections as federal employees. Whistleblowers are the best source of information about fraud, waste, and abuse in the public and private sectors, and they are critical to promoting institutional accountability, compliance, and safety and security. We support the work of whistleblower champions in Congress who have worked tirelessly to extend whistleblower protections to the millions of contractors and grantees working for the federal government.

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Public Citizen filed Amicus Curiae Brief to Uphold “Soft-Money” Ban

On Monday, a three-judge federal panel dismissed a renewed challenge by the Republican party to eliminate the “soft-money” ban on unlimited donations to political parties. The lead lawyers for the plaintiffs, James Bopp Jr., argued that the 2003 Supreme Court decision upholding the ban on contributions is superseded by the Court’s 2010 ruling in Citizens United v. FEC, which set the stage for super PACs. In a case brought by the Republican National Committee (RNC), in June 2010, the Court upheld the constitutionality of the ban despite the RNC’s assertion that it violated the First Amendment rights of political parties to engage in state elections.

According to Judge Sri Srinivasan, who ordinarily sits on the U.S. Court of Appeals but wrote for the panel clarified:

We see no salient distinction between the First Amendment claims rejected in those cases and the challenge presented here.

In praise of the ruling, Public Citizen alongside the Brennan Center for Justice, Democracy 21, and the Campaign Legal Center filed friend-of-the-court briefs supporting the FEC. Read more here.

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State Farm attempts to undermine the False Claims Act

On the morning of November 1, the U.S. Supreme Court heard oral arguments in State Farm Fir and Casualty Company v. U.S. ex rel. Rigsby. In an attempt to avoid paying the judgement, State Farms urged the Supreme Court to automatically dismiss the False Claims Act (FCA) cases where whistleblowers violate the FCA’s seal provision (31 U.S.C. § 3730(b)(2)) rather than employ the balancing test that the U.S. has historically used to determine the appropriate course of action.

Justice Elena Kagan posed a very critical question to the deciding Court:

Given that the government is the beneficiary of this [seal] provision, why shouldn’t we give very significant discretion to the government?

Mandatory dismissal is not an appropriate sanction as it would undermine the Congressional intent behind the FCA. To find out why, read more here.

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