Protecting Those Who Blow the Whistle on Government Wrongdoing

Whistleblowers are vital to our system of government. They are the eyes and ears of the American taxpayer. They disclose government waste, fraud, and abuse which spotlight instances where the system is not working for the benefit of the American people. The importance of preserving the relationship between Congress and whistleblowers is evidenced by longstanding bipartisan support for fostering and sustaining the relationship.

As the branch of government entrusted with “all legislative powers,” Congress has a constitutional duty to conduct oversight of trillions in spending as a key function of our system of checks and balances. When individuals see wrongdoing and as a result speak up, Congressional oversight is significantly benefitted. Thus, whistleblowers have been fundamental to Congress’ ability to exercise its oversight since our first steps as an independent nation.

Whistleblowers are uniquely positioned not only to shine a light on ongoing waste, fraud, and abuse, but to prevent it in the first place. In addition to exposing mismanagement, corruption, illegality, and wasteful spending, they have prevented disasters, loss of life, and behavior and policies that would violate civil, human, and constitutional rights. Disclosures from brave public servants have sparked congressional investigations, led to important reforms, and returned money to taxpayers. Without these insiders coming forward, it is uncertain whether the wrongdoing they expose would ever come to light. Whistleblowers are truly invaluable to Congress.

Challenges and necessary reforms

Whistleblowers in all parts of the federal government face an uphill battle from the moment they decide to blow the whistle. While Congress has codified protections for whistleblowers, systemic failures often render those protections meaningless. For example, the Merit Systems Protection Board (MSPB) is currently lacking its three presidentially appointed board members. With the MSPB unable to function, federal whistleblowers have no way to get temporary relief from personnel actions while their cases are pending. Without the board, the Office of Special Counsel, which advocates on whistleblowers’ behalf, has no way to request a stay of personnel actions while it investigates alleged retaliation, because the decision to grant or deny such a stay is left to the members of the MSPB.

However, whistleblowers don’t just rely on the MSPB for temporary relief: The board is also the final step that most whistleblowers must go through to get permanent relief from retaliation and corrective action (such as reversal of a demotion and receiving back pay, respectively). Without a quorum at the MSPB, whistleblowers fighting to enforce their whistleblower protections are in bureaucratic limbo. When the Office of Special Counsel issues a finding in a whistleblower’s favor, the whistleblower’s agency appeals to the MSPB to review the finding—but without the board, the case joins a 2,500-plus backlog of cases awaiting review. So whistleblowers are both unable to move their cases to a court and unable to enforce Office of Special Counsel decisions.

Even better, Congress could pass a law allowing whistleblowers to bypass the MSPB and take their retaliation complaints directly to a court to be heard by a jury of their peers. Federal whistleblowers are the only major sector of the labor force that does not have the right to have their cases tried before a jury. Even contractors, who have traditionally had weaker protections than their federal employee counterparts, have a statutory right to bring a retaliation complaint to a jury of their peers. It is long past time for federal employees to have this same right, the importance of which is underscored by the problems caused by the MSPB being inactive.

Even with a fully functioning MSPB, many whistleblower reprisal cases take years; this delay oftentimes makes it impractical for whistleblowers to fight to enforce their legal protections. Access to jury trials, while necessary and overdue, may present a similar problem. Accordingly, Congress should take measures to ensure that whistleblowers facing reprisal are entitled to interim relief while they seek to enforce their legal protections. Congress should make this interim relief available to whistleblowers who, in a request to the MSPB for a stay before their retaliation case is fully adjudicated, can show that the personnel action they face is likely being taken because they blew the whistle—also known as showing a prima facie, or sufficient on its face, case of retaliation. However, this is only possible when the MSPB has a quorum.

Furthermore, whistleblowers across the federal government are frequently subjected to retaliatory investigations, a personnel practice that is only officially considered whistleblower retaliation at the Department of Veterans Affairs. Retaliatory investigations are used to harass whistleblowers and tie up resources unnecessarily. Congress should expand prohibited personnel practices across all government sectors to include retaliatory investigations. Additionally, if Congress truly wants to ensure that blowing the whistle is not a career-ending decision for intelligence community employees, it must also make retaliatory security clearanceactions. For example, Congress could revoke someone’s clearance, a violation of the Whistleblower Protection Act, so that determinations about potentially retaliatory security clearance actions may be reviewed by the adjudicative bodies that currently resolve most disputes concerning whistleblower retaliation.