Whistleblower Protection Improvement Act of 2021
Floor Speech
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Mr. COMER. Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, I will admit the Whistleblower Protection Improvement Act has a great name because Congress cares about protecting whistleblowers. As the ranking member of the Oversight Committee, I appreciate and value whistleblowers' service and sacrifice to make government better.
In fact, ensuring whistleblowers have protections against abuse or retaliation is a bipartisan issue here in Congress. That probably explains why there are already so many protections that whistleblowers have access to in statutes, regulations, executive orders, and agency policies. There is the Whistleblower Protection Act, the Intelligence Community Whistleblower Protection Act, the Whistleblower Protection Enhancement Act, the very catchy Notification and Federal Employee Antidiscrimination and Retaliation Act.
Congress has consistently sought to protect people working in the Federal Government who report waste, fraud, and abuse--and for good reason. Whistleblowers are often the only means of knowing what is happening in an agency, and that is especially important under the Biden administration when the Democrats in Congress have refused to conduct any meaningful or serious oversight.
But how many more whistleblower laws do we need with so many already on the books?
Further, Republicans oppose this bill because it is a step too far. A simple version of this bill would have just applied the existing whistleblower protections to the few corners of the Federal Government that aren't already covered by the law. However, H.R. 2988 goes much further by making it nearly impossible--and only after a long, expensive process--to address performance or employment issues in anyone claiming to be a whistleblower, even if the person is not really a whistleblower but just bad at his or her job.
In the real world, if you are undermining your boss, participating in misconduct, or just lazy, your employer has options to hold you accountable. In the Federal Government, if you claim you are a whistleblower, you can be as terrible as you want and almost any attempt to remove you from your station is characterized as retaliation.
There is a difference between retaliation and plain repercussions, but this bill would make them the same. It would prohibit opening an investigation into someone who claims to be a whistleblower, even if there is good reason to investigate the employee's conduct.
Under this bill, it would be nearly impossible to reveal the identity of a whistleblower in order to evaluate the validity of his or her claims.
In large part, this bill is just an excuse to further idolize the people who pushed the sham impeachment against former President Trump. The actions of President Trump were, of course, vindicated by the Senate.
Entrenching Federal Government employees by enacting laws like H.R. 2988 is, in large part, why President Trump got elected in the first place: to drain the swamp. Democrats may be wise to remember this concern of the American people and stop working to further entrench the executive branch bureaucracy.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield 2 minutes to the gentleman from Virginia (Mr. Connolly), the distinguished chairman of the Subcommittee on Government Operations.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield 2 minutes to the gentlewoman from the District of Columbia (Ms. Norton), the distinguished chairwoman of the Committee on Transportation and Infrastructure's Subcommittee on Highways and Transit.
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Mr. COMER. Mr. Chair, whistleblowers in the Federal Government are covered by some of the most comprehensive protections for employees in the country.
Whistleblowers serve a valuable role in our government, especially in an administration like the Biden administration, which is subject to almost no oversight by Congress.
But giving this bill a great title, Whistleblower Protection Improvement Act, does not and should not provide cover for the actual requirements and consequences of this bill. Bill titles don't govern our government, but the substance within them does.
The Whistleblower Protection Improvement Act is a step too far and would help further entrench Federal Government employees in their jobs.
Mr. Chair, I oppose H.R. 2988, and I urge my colleagues to do the same.
Mr. Chair, I yield back the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield myself the balance of my time.
Mr. Chair, this bill does not prohibit agencies from investigating actual misconduct. It merely prohibits launching an investigation as retaliation for blowing the whistle.
When an agency becomes aware of a disclosure of waste, fraud, and abuse, the concern of the agency should be addressing those issues rather than retaliating against the employee who discloses the problems.
This change fills a critical role created by the 2020 appeals court decision that held that current whistleblower laws only prohibit a retaliatory investigation if the investigation ultimately resulted in a significant change in the employee's working conditions. This decision ignored the effect that a retaliatory investigation has on a whistleblower when an investigation is going on. So, I disagree with the gentleman's statement, and I am now prepared to close.
Mr. Chair, I want to stress the urgency and importance of this legislation and talk about how important it is to protect our whistleblowers.
They play a critical role in exposing wrongdoing within the government, sometimes at great personal risk. They need to be able to alert agency leaders and Congress without fear of retaliation.
Passing H.R. 2988 would help give whistleblowers the protection they deserve. The key reforms in the bill would prohibit agencies from launching retaliatory investigations and extend whistleblowers the right to a jury trial, which they have long sought, and permit whistleblowers to receive attorney fees if they win their lawsuits.
This bill establishes new protections for whistleblowers who have a crucial role in shedding light on government corruption and wrongdoing.
This bill is also strongly supported by well over 100 stakeholder organizations. Just today, the National Taxpayers Union announced its inclusion of this bill as one of its ``No Brainers'' list for bills that Congress should pass. Only a few bills receive this kind of recognition. This is landmark legislation, both for freedom of speech and for government accountability.
I thank my colleagues on both sides of the aisle who have cosponsored this important legislation and spoken in support of it. Mr. Chair, I strongly urge my colleagues to vote in favor of this bill.
Mr. Chair, I yield back the balance of my time.
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Mr. COMER. Mr. Chair, I rise to oppose the amendments en bloc. I rise in opposition to the en bloc package of amendments offered by Chairwoman Maloney.
This package contains an amendment offered by Representative Auchincloss, which would require the Government Accountability Office to conduct a study of whistleblower complaints ruled on by the Merit Systems Protection Board and make recommendations about the whistleblower review process.
The problem with this amendment is that the MSPB's Office of General Counsel already performs the oversight functions for the MSPB under the Inspector General Act of 1978. This office is capable of doing the work the amendment would task to the GAO.
Reviewing the MSPB determinations and monitoring the Federal courts is not a smart use of the GAO's limited resources. The GAO needs to remain focused on pending statutorily mandated work.
I also oppose the amendment offered by Representative Jackson Lee, which is trying to help inspectors general offices receive anonymous whistleblower information, but it actually makes it far more difficult.
This amendment won't allow IG offices to use any telephone or computer systems to receive the anonymous whistleblower information. Instead, they will have to rely on receiving such sensitive information by mail, which is obviously problematic, including complicating an IG's ability to evaluate the validity and authenticity of these tips and complaints.
I also oppose the amendment offered by Representative Porter, which attempts to create another unnecessary reporting requirement for the inspectors general to report to Congress on the timeliness of resolving whistleblower retaliation complaints.
The problem is that IG offices are already required to include this information in their semiannual report to Congress, provided every 6 months. This includes information on what, if any, consequences have been imposed to hold the official who engaged in retaliation accountable. This amendment's duplicative reporting requirement only wastes more time that an IG should be spending on investigating waste, fraud, and abuse.
Finally, I oppose the amendment offered by Representative Spanberger, which would prohibit the suspension, revocation, denial, or other determination relating to a security clearance of a whistleblower. This complete prohibition could put national security at risk.
For example, an employee working to undermine a national security policy or program could claim that he or she is a whistleblower and continue to have access to sensitive information, even while the agency evaluated the merits of the whistleblower's accusation.
There are approved procedures for whistleblowing in the intelligence community, but this amendment would prohibit revoking a security clearance, even if the so-called whistleblower ignores those procedures. This is an unacceptable risk to our Nation. Those holding security clearances have assumed a special level of public trust, and with that comes special expectations.
Mr. Chair, I oppose these amendments, and I reserve the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson Lee), the distinguished chairwoman of the Committee on the Judiciary Subcommittee on Crime, Terrorism and Homeland Security.
Ms. JACKSON LEE. Mr. Chair, I thank the distinguished gentlewoman for her work as chairwoman of the Committee on Oversight and Reform. Again, I give her my deepest appreciation for the enormous legacy of leadership that she has given to issues of empowerment, civil rights, civil liberties, and the rights of women. I thank Chairwoman Maloney.
I rise today to support the underlying bill, H.R. 2988, and address my amendment, of which I am very grateful has been included in the en bloc.
It does make a difference. Whistleblowers can help change governments for the best. They are part of the constitutional infrastructure of ensuring due process and the rights of the vulnerable.
My amendment reinforces the spirit of confidentiality by providing another way to communicate whistleblower information to an OIG that poses less risk of confidentiality being lost or being breached while not affecting existing mechanisms, especially in some cases when there is a concern about the threat of retaliation. A potential whistleblower might be unwilling to provide information for fear of consequences if their identity is disclosed.
I am very glad to say that the Government Accountability Project is supporting my amendment. They wrote in their letter of support for my amendment: ``This is solid, commonsense legislation to restore what works if we let it. For many whistleblowers, the decisive factor whether they bear witness or remain silent observers is whether they will remain anonymous.''
``It will increase the flow of evidence and prevent retaliation.''
Mr. Chair, I include in the Record the Government Accountability Project letter dated September 13, 2022. Government Accountability Project, Washington, DC, September 13, 2022. Hon. Sheila Jackson Lee, House of Representatives, Washington, DC.
Dear Representative Lee: This letter is to express support and appreciation for your amendment to the Whistleblower Protection Improvement Act that would upgrade the safety of channels for anonymous whistleblowing disclosures to Offices of Inspector General. The amendment would require OIG's to restore traditional, effective channels to share evidence that had been canceled for more convenient but unreliable high tech options such as the internet or telephones. In addition to those channels, agencies would have to restore services such as secure drop boxes and accept anonymous disclosures by mail.
This is solid, common-sense legislation to restore what works if we let it. For many whistleblowers, the decisive factor whether they bear witness or remain silent observers is whether they will remain anonymous. Unfortunately, many understandably do not trust OIG confidentiality safeguards, because OIG's routinely breach them with impunity. While nearly all lG's have anonymous hotlines or phone channels, those engaging in surveillance often are one step ahead with tactics that expose the witness. This is an instance where the old-fashioned way is the safest. But at too many agencies it no longer is available, as risky high-tech options now monopolize the disclosure channel.
The bottom line is that sometimes tried and true approaches can work best, even if less convenient. Your amendment would apply that truth where it counts most--shielding the identify of endangered whistleblowers. It will increase the flow of evidence and prevent retaliation. Appreciatively, Tom Devine, Legal Director.
Ms. JACKSON LEE. Mr. Chair, I ask my colleagues to support the en bloc, the underlying legislation, and the Jackson Lee amendment.
Mr. Chair, I rise in strong support of H.R. 2988, the Whistleblower Protection Improvement Act, and thank you for bringing this important legislation to the floor today.
I applaud the Committee on Oversight and Reform for this timely and purposeful bill. By strengthening whistleblower protections, H.R. 2988 would enhance the capabilities of the Offices of Inspector General at each government agency to improve government accountability and transparency.
Whistleblowers are uniquely positioned to know of actions that derogate from laws, regulations, stated government objectives, and the best interests of the American people.
As a matter of public policy, potential whistleblowers should be encouraged to come forth with information that improves our government's operations, efficiency, and effectiveness.
To incentivize such noble conduct, whistleblowers must be assured of protection and insulated from retaliation for the accountability they facilitate when an OIG pursues their leads.
Indeed, being a whistleblower is an act of patriotism--helping our government serve Americans more responsibly--and those who provide this service should be honored, not vilified.
I would also like to thank the Rules Committee for making my amendment in order, and the Committee on Oversight and Reform for including it in the En Bloc amendment.
My amendment adds a key mechanism to amplify the operational impact of the bill, and it is supported by the Government Accountability Project.
H.R. 2988 addresses very important aspects of the handling of whistleblower complaints, whistleblower rights against any retaliatory action, and vital protections to avoid disclosures of identity, breaches of confidentiality, and retaliation.
My amendment reinforces the spirit of confidentiality by providing another way to communicate whistleblower information to an OIG that poses less risk of confidentiality being breached, while not affecting existing mechanisms.
In some cases--especially when there is concern about a threat of retaliation--a potential whistleblower might be unwilling to provide information for fear of consequences if their identity is disclosed.
To encourage whistleblowers to share information in these situations, my amendment directs the Office of Inspector General in each agency to establish a mechanism to receive whistleblower information that is completely anonymous and assured of remaining anonymous.
By being able to submit information in a way that anonymity is assured, some potential whistleblowers who might otherwise not be willing to share information with the OIG may be willing to do so.
As the Government Accountability Project wrote in their letter of support for my amendment, ``This is solid, common-sense legislation to restore what works if we let it. For many whistleblowers, the decisive factor whether they bear witness or remain silent observers is whether they will remain anonymous. . . . It will increase the flow of evidence and prevent retaliation.''
The anonymous method could be by sending a letter through the mail, dropping a paper note into a receptacle, or some other mechanism devised by the OIGs that cannot be traced back to the whistleblower.
These approaches assure anonymity, unlike submission through a website or phone call, which could be traced back to the person submitting the information.
By submitting facts with full anonymity, a whistleblower does not run the risk of their identity being disclosed either accidentally, by court order, or by other means.
Ideally, an OIG may prefer to know the identity of the person providing insights so they can contact them for more details.
Yet, since some people with vital information may refuse to submit it due to the risk of exposure, the public interest in receiving useful insights from an anonymous source outweighs an OIG's interest in contacting them.
With the information that it receives, the OIG could pursue facts and elevate its investigation through other channels.
My amendment would create a channel for this to occur.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield 2 minutes to the gentleman from Massachusetts (Mr. Auchincloss), the vice chair of the Committee on Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation.
Mrs. CAROLYN B. MALONEY of New York.
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Mr. COMER. Mr. Chair, I yield myself the balance of my time for closing.
Let me conclude by saying this: We have countless rules on the books pertaining to whistleblower protection. We have good whistleblower rules. I can assure my friends on the other side of the aisle, we have plenty of whistleblowers coming forward now with issues, and they are going to be protected. The rules on the books will protect those whistleblowers.
What my friends on the other side of the aisle are trying to do, I fear, is create a situation where any poor-performing employee who is receiving poor reviews from their agency can claim to be a whistleblower, and therefore, they will be on the Federal payroll for the rest of their career. Then they can retire and draw a pension for the rest of their life.
This is unacceptable in the private sector. We care about whistleblowers. We welcome whistleblowers to come to the House Committee on Oversight and Reform to speak to the Republican minority members. They are and they will be protected because we have good whistleblower laws on the books.
These proposed amendments make our good whistleblower laws worse, and we need to oppose them.
Mr. Chair, I yield back the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Chair, I yield myself the balance of my time.
The underlying bill is both landmark legislation for freedom of speech and for government accountability. I strongly urge my colleagues to vote in favor of this landmark legislation, and I yield back the balance of my time.
Mr. Chair, I move that the committee now rise.
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