[Congressional Record Volume 150, Number 61 (Wednesday, May 5, 2004)]
[Senate]
[Pages S4901-S4902]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    DISCLOSING GOVERNMENT WRONGDOING

  Mr. AKAKA. Mr. President, today I rise to pay tribute to those public 
servants who step forward to disclose government waste, fraud, and 
abuse. Commonly called whistleblowers, these individuals alert Congress 
and the public to threats to health, waste of taxpayer money, and other 
information vital to running an effective and efficient government. 
While there are protections in place for Federal employees who disclose 
government wrongdoing, certain legal decisions prevent many from coming 
forward. To underscore the importance of whistleblowers, Time Magazine 
called 2002 the ``Year of the Whistleblowers'' because of the bravery 
of FBI Agent Colleen Rowley, who alerted Congress to serious 
institutional problems at the FBI, and Sherron Watkins and Cynthia 
Cooper, who blew the whistle on financial mismanagement at Enron and 
WorldCom, respectively.

[[Page S4902]]

Today, as in 2002, it is important that during Public Service 
Recognition Week we acknowledge those who disclose information without 
assurances of protection and pledge to do what we can to provide full 
protection for those trusted public servants.
  Congress has a duty to taxpayers to make informed decisions when 
carrying out its legislative, appropriation, and oversight functions. 
Such decisions require access to timely and accurate information, and 
when access is restricted, we are unable to provide oversight and 
fulfill our constitutional responsibilities. Only through a credible, 
functioning statute can we protect the rights of Federal workers who 
wish to communicate with Congress. Guaranteeing freedom from 
retaliation or abuse when disclosing critical information to Congress 
is the underpinning of the Whistleblower Protection Act, WPA.
  Congress has worked hard, and continues to work, to provide real 
whistleblower protection to Federal employees. Unfortunately, through a 
series of decisions contrary to both statutory language and 
congressional intent, the Federal Circuit Court of Appeals, which has 
sole appellate review for the WPA, has denied full whistleblower 
protections to Federal workers and harmed Congress's ability to do its 
job. In fact, of the 85 retaliation cases decided on the merits since 
1994, the Federal circuit has ruled for the whistleblower only once.
  To ensure continued whistleblower protection, I introduced S. 1358, 
the Federal Employee Protection of Disclosures Act, on June 26, 2003, 
with Senators Grassley, Levin, Leahy, and Durbin. Since introduction, 
we have been joined by Senators Dayton, Pryor, and Johnson. Our bill 
would strengthen protections for Federal employees who report 
government waste, fraud, abuse, gross mismanagement, and substantial 
and specific dangers to public health and safety.
  Congress has consistently supported the principle that Federal 
employees should not be subject to prior restraint from disclosing 
wrongdoing. For example, every year since 1988 Congress has included in 
every Transportation, Treasury, and General Government Appropriations 
bill an ``anti-gag'' provision which prohibits the use of Federal funds 
to implement nondisclosure policies that are inconsistent with several 
open government statutes, such as the WPA of 1989 as amended in 1994, 
the Military Whistleblower Protection Act of 1998, and the Lloyd 
Lafollette Act of 1912, which prohibits discrimination against 
government employees who communicate with Congress.
  However, more must be done. Since we introduced our bill there have 
been several more public reports of Federal employees allegedly being 
fired or threatened with termination or other retaliation for 
communicating with Congress and disclosing government wrongdoing to the 
press. These reports include the controversy surrounding the U.S. Park 
Police and cost estimates for the newly enacted Medicare prescription 
drug program. In order to aid these and other employees and provide 
full protection to Federal whistleblowers, S. 1358 would codify the 
``anti-gag'' provision and allow employees to bring cases seeking 
remedial action for retaliation before the Merit Systems Protection 
Board, MSPB, an independent, quasi-judicial agency that adjudicates 
Federal employee appeals.
  In addition, our bill, the Federal Employee Protection of Disclosures 
Act, would overturn certain Federal Circuit decisions which have denied 
protection to employees who made disclosures in the course of their job 
duties or reported initially to the wrongdoer or a coworker. S. 1358 
would also suspend the Federal Circuit's exclusive jurisdiction over 
WPA reprisal cases for 5 years, and overturn the wrongly established 
``irrefragable proof'' standard imposed by the Federal circuit for 
whistleblowers to qualify for protection.
  Although much press has been given to recent whistleblower cases, it 
is important to remember those who have reported allegations of 
aircraft maintenance violations, water safety regulations, and lapses 
in our national security. Protecting Federal employees who blow the 
whistle allows us to protect taxpayers and, in recent notable 
instances, national security as well. That is why the WPA is often 
referred to as the Taxpayer Protection Act.
  During Public Service Recognition Week, I urge my colleagues to 
remember public servants who have come forward and honor them by 
supporting S. 1358 and strengthening protections for whistleblowers.

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