[Congressional Record Volume 148, Number 137 (Thursday, October 17, 2002)]
[Senate]
[Pages S10705-S10707]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY:
  S. 3137. A bill to provide remedies for retaliation against 
whistleblowers making congressional disclosures; to the Committee on 
Governmental Affairs.
  Mr. LEAHY. Mr. President, I rise to introduce the Congressional 
Oversight Protection Act of 2002. The 107th Congress has truly been the 
Congress of the whistleblower. From Sherron Watkins who helped expose 
many of the misdeeds at Enron, to FBI Special Agent Coleen Rowley and 
others who brought needed public attention to some of the shortcomings 
of the FBI prior to 9-11, we have been eyewitness to the value of 
getting the inside story.
  The 107th Congress has also been one of rejuvenated bipartisan 
oversight. On the Judiciary Committee we convened the first series of 
comprehensive bipartisan FBI oversight hearings in decades after I 
assumed the Chairmanship. The Joint Intelligence Committee is now 
conducting bipartisan hearings to ascertain what shortcomings on the 
part of our intelligence community need to be corrected so as not to 
allow the 9-11 terrorist attacks to recur. The Senate Banking Committee 
conducted extensive oversight of the SEC and its relationship with the 
accounting industry, to ascertain whether a new regulatory scheme was 
required. Both the Senate and House Judiciary Committees are attempting 
to ascertain how the new powers we provided in the USA PATRIOT Act are 
being used. These are only a few examples.
  We have all been the beneficiaries of such increased oversight and 
the courage of the whistleblowers who provided information as part of 
that effort, because their revelations have led to important reforms. 
The Enron scandal and the subsequent hearings led to the most extensive 
corporate reform legislation in decades, including the criminal 
provisions and the first ever corporate whistleblower protections from 
S. 2010, the Corporate Fraud and Criminal Accountability Act, that I 
authored. The testimony of the rank and file FBI agents that we heard 
on the Judiciary Committee helped us to craft

[[Page S10706]]

the bipartisan FBI Reform Act, S. 1974. This legislation, which 
included enhanced whistleblower protections, was reported unanimously 
to the full Senate in April but is being blocked by an anonymous 
Republican hold. The same day as Coleen Rowley's nationally televised 
testimony before the Judiciary Committee, President Bush not only 
reversed his previous opposition to establishing a new cabinet level 
Department of Homeland Security, but gave a national address calling 
for the largest government reorganization in 50 years. In the last year 
we have learned once again that the public as a whole benefits from a 
lone voice in the government.
  Unfortunately, the people who very rarely benefit from these 
revelations are the whistleblowers themselves. We have heard testimony 
in oversight hearings on the Judiciary Committee that there is quite 
often retaliation against those who raise public awareness about 
problems within large organizations even to Congress. Sometimes the 
retaliation is overt, sometimes it is more subtle and invidious, but it 
is almost always there. The law needs to protect the people who risk so 
much to protect us and create a culture that encourages employees to 
report waste, fraud, and mismanagement.
  For those who provide information to Congress, that protection is a 
hollow promise. On one hand, the law is very clear that it is illegal 
to interfere with or deny, ``the right of employees, individually or 
collectively, to petition Congress or a Member of Congress, or to 
furnish information to either House of Congress, or to a committee or 
Member thereof . . .'' See 18 U.S.C. Sec. 7211. Amazingly, however, 
this simple provision is a right without a remedy. Employees who are 
retaliated against for providing information to Congress cannot pursue 
any avenue of redress to protect their statutory rights. The only 
exception to this applies to employees of publicly traded companies, 
who are now covered by the whistleblower provision included in the 
Sarbanes-Oxley Act that we passed this year. Thus, under current law, 
government whistleblowers reporting to Congress have less protection 
than private industry whistleblowers.
  This bill would merely correct this anomaly by providing government 
employees that come to Congress with the right to bring an action in 
court when they suffer the type of retaliation already prohibited under 
the law. Thus, it does not create new statutory rights, but merely 
provides a statutory remedy for existing law. That way, we can promise 
future whistleblowers who come before Congress that their right to 
access the legislative branch is not an illusion. We can also assure 
the public at large that our future efforts at Congressional oversight 
and improving the functions of government will be effective. This 
legislation is strongly supported by leading whistleblower groups, 
including the National Whistleblower Center and the Government 
Accountability Project, and I ask unanimous consent that their letters 
of support be printed in the Record.
  For all these reasons, I urge swift passage of this legislation. I 
ask unanimous consent that the text of this bill be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 3137

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Congressional Oversight 
     Protection Act of 2002''.

     SEC. 2. PROVIDING REMEDIES FOR RETALIATION AGAINST 
                   WHISTLEBLOWERS MAKING CONGRESSIONAL 
                   DISCLOSURES.

       Section 7211 of title 5, United States Code, is amended--
       (1) by inserting ``(a)'' before ``The right''; and
       (2) by adding at the end the following:
       ``(b) Any employee aggrieved by the discrimination of an 
     employer in violation of subsection (a) may bring an action 
     at law or equity for de novo review in the appropriate 
     district court of the United States, which shall have 
     jurisdiction over an action under this subsection, without 
     regard to the amount in controversy.
       ``(c) Any employee prevailing in an action under this 
     section shall be entitled to all relief necessary to make the 
     employee whole, including--
       ``(1) reinstatement with the same seniority status that the 
     employee would have had but for the discrimination;
       ``(2) the amount of back pay lost as a result of the 
     discrimination, with interest;
       ``(3) compensation for any special damages sustained as a 
     result of the discrimination, including litigation costs, 
     expert witness fees, and reasonable attorney fees; and
       ``(4) punitive damages, in appropriate cases.
       ``(d) Upon the request of the complainant, any action under 
     this section shall be tried by the court with a jury.
       ``(e) The same legal burdens of proof in proceedings under 
     this section shall apply as apply under sections 
     1214(b)(4)(B) and 1221(c) in the case of any alleged 
     prohibited personal practice described in section 2302(b)(8).
       ``(f) For purposes of this section, the term `employee' 
     means an individual (as defined by section 2105) and any 
     individual or organization performing services under a 
     contract with the Government (including as an employee of an 
     organization).''.
                                  ____



                                National Whistleblower Center,

                                 Washington, DC, October 16, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Chairman Leahy: I am writing to strongly support your 
     legislation, the Congressional Oversight Protection Act of 
     2002. The National Whistleblower Center (Center) is the pre-
     eminent national organization that promotes effective 
     measures to protect whistleblowers who come forward in the 
     public interest at great risk to their careers. In that 
     regard, your introduction of this bill once again 
     demonstrates your leadership in understanding the importance 
     of whistleblowing and its role in our democratic process, and 
     the Center is pleased to support your bill and work hard to 
     achieve its swift passage.
       In the wake of the events of 9/11, the stakes have been 
     raised for Congress to perform the most effective oversight 
     of the federal government. To do so, Congress must have 
     unfettered access to information. And that means that 
     citizens in both the public and private sectors must be free 
     to come forward to Congress with proper disclosures without 
     the fear of retaliation. Under current law, citizens have the 
     right to make disclosures to Congress, but there is no remedy 
     for them to protect their rights in the event of retaliation. 
     Your bill would provide such a remedy and, in doing so, would 
     put government whistleblowers on a par with whistleblowers in 
     publicly-held companies who have such protections under the 
     newly-passed Sarbanes-Oxley Act.
       This year, the concept and importance of whistleblowing has 
     been etched indelibly on the minds of the public, thanks to 
     congressional investigations into Enron and other companies, 
     thanks to the joint investigation into intelligence lapses in 
     the government, and thanks to extensive media coverage of 
     these matters. The public's appreciation for the necessity of 
     whistleblowers and whistleblower protections creates an 
     atmosphere conducive to passing the Congressional Oversight 
     Protection Act at the earliest possible time. Your leadership 
     in trying to fill an important void in whistleblower law 
     should be commended and hailed by all those who support 
     ``good government.''
       Once again, thank you for your continued leadership on this 
     and other whistleblower issues throughout the 107th Congress. 
     Please feel free to call on the Center to work together to 
     pass this bill.
           Respectfully,
                                                 Kris J. Kolesnik,
     Executive Director.
                                  ____



                            Government Accountability Project,

                                 Washington, DC, October 17, 2002.
     Hon. Patrick Leahy,
     Chairman, Senate Judiciary Committee, Dirksen Senate Office 
         Building, Washington, DC.
       Dear Chairman Leahy: This letter is to express unqualified 
     appreciation for introduction of the Congressional Oversight 
     Protection Act, providing access to jury trials in court for 
     federal whistleblowers and others who bear witness through 
     disclosures to Congress. This legislation reflects leadership 
     to close an inherent flaw that has prejudiced even the best 
     administrative law remedial systems. Administrative boards do 
     not have the judicial independence or resources for high-
     stakes, politically sensitive whistleblower disputes with 
     national consequences. Ironically, those type of disputes are 
     the primary, most significant reason for enacting 
     whistleblower protection laws.
       The legislation puts teeth into the congressional right to 
     know law, the Lloyd LaFollette Act of 1912. (5 USC 7211) That 
     law's purpose is simple, and fundamental--to protect the free 
     flow of information to Congress. It prohibits discrimination 
     for communicating with Congress. It was passed in response to 
     presidential gag orders that had imposed prior approval 
     before federal employees could communicate with Congress. 
     Flood statements before passage emphasized the free flow of 
     information as the lifeblood for Congress to carry out its 
     mission. The need is even greater when freedom of speech 
     means the freedom to warn Congress of national security 
     breakdowns, before the public suffers the consequences again.
       Unfortunately, Congress failed to specifically provide 
     access to court to enforce Lloyd LaFollette rights. As a 
     result, it has been a right without a remedy. That means it 
     is of little more than rhetorical significance, and no 
     benefit to reprisal victims. Since 1912, 54 whistleblowers 
     have tried to assert their rights under this law. Fifty three 
     cases were dismissed for lack of jurisdiction. Consistently 
     the explanation is that

[[Page S10707]]

     the statute did not provide the court with jurisdiction as 
     authority to act. The bill's purpose is to strengthen 
     Congress' right to know--a prerequisite for informed 
     oversight. The bill's strategy is to provide reinforced 
     protection, beyond normal civil service remedies, for those 
     who choose to communicate through and work with Congress.
       There should be no question of the need for reinforced 
     protection of congressional whistleblowers. The system of 
     administrative civil service hearings was never designed for 
     major public policy disputes involving high stakes national 
     consequences and active congressional oversight. The 
     Administrative Judges who hear the cases have no judicial 
     independence and know they will be treated like 
     whistleblowers if they rule for those challenging politically 
     powerful government officials. As a result, those hearing 
     officers treat significant whistleblower cases like poison 
     ivy. Consistently, the administrative process has been a 
     black hole for politically significant disputes, with 
     decisions regularly not being finalized for years, and one 
     case still pending after 11 years. In a significant 
     environmental dispute involving millions of dollars in timber 
     theft, four Forest Service employees are still waiting for 
     their day in court after six years.
       After lessons learned from the FBI's Coleen Rowley, it is 
     beyond credible debate that whistleblowers can make a major 
     contribution toward preventing another 9/11. Analogous 
     frustrations of Border Patrol, Customs Service, Department of 
     Energy, Federal Bureau of Investigation, Federal Aviation 
     Administration and the Nuclear Regulatory Commission 
     whistleblowers illustrate an unmistakable pattern of ignoring 
     or silencing patriots on the front lines of homeland 
     security. As our nation's modern Paul Reveres, whistleblowers 
     are invaluable as an early warning signal to prevent 
     avoidable disasters.
       It should also be clear, however, that this legislation is 
     a necessity to strengthen homeland security. It will not 
     solve the complex problems of the civil service system. But 
     it will give whistleblowers a credible remedy for the first 
     time in eight years, if they work with Congress. Increasingly 
     whistleblowers have been lionized for their bravery, but that 
     is no substitute for genuine, enforceable rights. Indeed, the 
     praise can ring cynically hollow to those whose careers are 
     in ashes for doing their duty. It is unrealistic to expect 
     whistleblowers to defend the public, if they cannot defend 
     themselves. Profiles in Courage are the exception, not the 
     rule. If successful, your initiative to add rights matching 
     the rhetoric supporting whistleblowers will be a good 
     government breakthrough.
           Sincerely,
                                                       Tom Devine,
                                                   Legal Director.
                                 ______