[Congressional Record Volume 155, Number 49 (Monday, March 23, 2009)]
[Senate]
[Pages S3603-S3604]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       WHISTLEBLOWER PROTECTIONS

  Mr. GRASSLEY. Mr. President, during the height of the Presidential 
campaign, President Obama made a number of high profile statements and 
promises about what actions he would take once he was elected and sworn 
in. These promises outlined a number of important issues such as 
closing the revolving door for lobbyists in the executive branch, 
ending the use of no-bid contracts, and curbing the influence of 
special interests, to name just a few.
  Over the years, I have been an outspoken supporter of legislation 
that would make the Government more transparent and open. I have 
authored and supported a number of bills that would open the Government 
up and make it more accountable to the citizens. In particular I have 
been strong advocate for whistleblowers. Most importantly, I have 
always pushed the Government to be accountable by conducting vigorous 
oversight of the Federal bureaucracy regardless of which party controls 
Congress or the White House. I have been an equal opportunity overseer 
and have given my Republican colleagues as many headaches as I have 
given Democrats.
  Given my background on oversight, I was supportive of some of the 
statements President Obama made as a candidate with respect to 
transparency and openness in Government. A document on the Obama 
campaign Web site titled, ``Restoring Trust in Government and Improving 
Transparency,'' outlined ethics and contracting reform, and included a 
statement that:

       Obama will sign legislation in the light of day without 
     attaching signing statements that undermine legislative 
     intent.

Candidate Obama further discussed signing statements during a campaign 
speech where he said that his administration was ``not going to use 
signing statements as a way of doing an end run around Congress.'' A 
video of that speech is available online for all to see.
  I was also encouraged by candidate Obama's promises to protect 
employees in the Federal Government who blow the whistle on fraud, 
waste, and abuse. In yet another campaign document, candidate Obama 
stated that he would ``strengthen whistleblower laws to protect Federal 
workers who expose waste, fraud, and abuse of authority in 
government.'' That statement was posted on the Change.gov Web site of 
the Obama Transition Team for all to see. It was a welcome message to 
the employees of the executive branch that risk their careers and stick 
their necks out to alert Congress, inspectors General, and the public 
about fraud, waste, and abuse in Government agencies and programs.

  These employees, also known as whistleblowers, often do nothing more 
than ``commit truth,'' and for it they are shunned by their agencies, 
coworkers, friends, and government. My colleagues have all heard me say 
time and again that whistleblowers are as welcome as a skunk at a 
Sunday picnic. These patriot individuals believe that Government can do 
better for its citizens. They risk everything to make sure that laws 
are faithfully executed as they were intended and let Congress know 
when something is not working and needs fixing. Some of the most 
important reforms to our laws have come from whistleblowers, be it 
reforming our national security and law enforcement coordination 
following the tragic events of 9/11, or ensuring we have clean water to 
drink.
  Given Candidate Obama's promise to not use signing statements to 
circumvent the legislative intent of Congress and his pledge to support 
whistleblowers, I was shocked to read the signing statement he issued 
on the Omnibus apprropriations bill that was signed into law on March 
11. Not only did President Obama's action run contrary to his promise 
not to use signing statements to circumvent the intent of Congress, he 
also appears to have broken his promise to strengthen whistleblower 
laws by singling out an important whistleblower protection provision 
that Congres has included in every appropriations bill for the last 
decade.
  Sections 714(1) and (2) of the omnibus bill contains an 
appropriations rider that states that no appropriation shall be 
available to pay the salary of any officer or employee of the Federal 
Government:

       Attempts or threatens to prohibit or prevent, any other 
     officer or employee of the Federal Government from having any 
     direct oral or written communication or contact with any 
     Member, committee, or subcommittee of the Congress.

This rider was first included in appropriations bills in 1997 and has 
been included in appropriations bills since. It is a strong signal to 
all agencies that efforts to block federal employees from coming to 
Congress won't be tolerated.
  However, the applicability of this rider is now in question given the 
signing statement issued by President Obama. His signing statement, in 
pertinent part, stated that this provision does not:

     detract from [his] authority to direct the heads of executive 
     departments to supervise, control, and correct employees' 
     communications with Congress.

  This statement is shocking. It acknowledges that President Obama 
envisions a scenario where he would order a Cabinet Secretary to 
supervise, control, and correct statements made by employees to 
Congress.
  Worse yet, the signing statement goes further to add that this 
authority would be used when employee communications would be 
``unlawful or would reveal information that is properly privileged or 
otherwise confidential.''
  I want to emphasize that word ``confidential,'' because you will hear 
about that in just a minute.
  While other Presidents have objected to this appropriations rider in 
the past, President Obama's signing statement is even more problematic 
than those because it states that he has the authority to not only 
restrict privileged material, but also ``confidential'' information.
  By failing to define ``confidential,'' President Obama has given a 
blank check to executive branch agencies to block communications with 
Congress related to an undefined, broad category of information.
  Understand, it is a constitutional power and responsibility of this 
Congress to oversee, as part of our checks and balances of our 
Constitution, the agencies of Government to make sure laws are 
faithfully executed, as the Constitution requires, and as money is 
spent according to Congress.
  Even the New York Times noted President Obama's signing statement 
includes ``one somewhat unclear objection'' that ``could be read as 
bumping up against the rights of executive branch whistle-blowers.'' 
Because, in our constitutional responsibility, we have to rely upon 
people in the executive branch to tell us when the job isn't being done 
according to the Constitution or according to law.
  So I want to go further than what the New York Times said and say: It 
does

[[Page S3604]]

more than bump up against the rights of whistleblowers. It, in fact, is 
going to be a chill. It will chill executive branch employees from 
sharing information with Congress in our congressional obligation of 
oversight.
  It could also be construed to be an attempt to limit Members of 
Congress from conducting this constitutional duty. I wrote to President 
Obama last Friday raising my concerns with his signing statement, and, 
most importantly, the chilling effect that it will have on 
whistleblower communication with Congress.
  Today, I have not received a response. However, I read in the New 
York Times on March 16 that an unnamed administration official stated 
that President Obama is ``committed to whistleblower protections,'' and 
that the administration ``had no intention of going further than did 
Presidents Bill Clinton and George Bush in signing statements 
concerning similar provisions.''
  Then, what is that word ``confidential'' doing in there? However, 
that same official did not provide any detail on that additional term 
``confidential.'' I would like President Obama to answer my letter soon 
and clarify exactly what he meant in this signing statement. Absent a 
more detailed response from President Obama, I cannot see how his 
signing statement can be reconciled with the pledges and promises made 
by Candidate Obama, nor can I reconcile the criticism issued by 
Candidate Obama about President Bush's use of signing statements with 
the statements made by that unnamed administration source in the New 
York Times.
  The unnamed source said President Obama ``had no intention of going 
further than did President Clinton or George Bush in signing 
statements.'' Candidate Obama stated he would not use signing 
statements in a manner similar to President Bush to circumvent the will 
of Congress. Now a member of the administration is telling the New York 
Times that President Obama means to do exactly the same thing as 
President Bush in issuing signing statements.
  It seems to me, if this is the case, Candidate Obama would have a 
problem with President Obama's use of signing statements to underline 
the intent of this appropriations rider on whistleblowers.
  Now, a number of my colleagues were quick to object to signing 
statements issued by President Bush but somehow have so far remained 
silent regarding President Obama's use of signing statements. Well, to 
those who had concerns in the past, I encourage you to take a close 
look at this signing statement and the potential harm it will cause for 
Members of Congress doing our constitutional responsibility of 
oversight to see that the laws are faithfully executed.
  Those who may believe my acts are motivated by partisan politics, I 
want you to look at my record and see that I have repeatedly objected 
to signing statements that hindered the rights of whistleblowers. Just 
one example: I objected to a signing statement issued by President Bush 
back in 2002 that restricted the application of whistleblower 
protection provisions included in Sarbanes-Oxley.
  I also, as another example, objected when a signing statement was 
issued by President Bush impacting specific reforms contained in the 
Inspector General Reform Act of 2008.
  In closing, I call upon President Obama to revisit the March 11 
signing statement and implement sections 714(1) and (2) in a manner 
consistent with the spirit and intent of this legislation.
  As a former Senator, he must recognize the good that whistleblowers 
do by speaking out and by shedding light on fraud, waste, and abuse in 
Government agencies and programs.
  Candidate Obama supported whistleblowers, but based upon his recent 
signing statements, these campaign promises now ring hollow. I hope I 
have interpreted him wrongly and will give him an opportunity to set 
the record right because I hope he comes out the same way he did in the 
campaign: strictly in support of whistleblowers, who are an essential 
element of the process of our checks and balances of government as 
Congress does its constitutional job of oversight.
  We do not know where all of the skeletons are in the closet. We do 
not know all of the abuses of law. We do not know of all of the 
fraudulent things that are going on in government. We need that 
information from whistleblowers, and the best evidence I can give you 
of that is the $22 billion that has been brought back into the Federal 
Treasury since I got the False Claims Act of 1986 passed.
  Most of that information would not have been available without the 
information from whistleblowers.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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