[Congressional Record Volume 158, Number 131 (Friday, September 28, 2012)]
[Extensions of Remarks]
[Page E1664]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           WHISTLEBLOWER PROTECTION ENHANCEMENT ACT (S. 743)

                                 ______
                                 

                        HON. TODD RUSSELL PLATTS

                            of pennsylvania

                    in the house of representatives

                       Friday, September 28, 2012

  Mr. PLATTS. Mr. Speaker, I rise today in support of the Whistleblower 
Protection Enhancement Act, S. 743, and, as a long-time sponsor and 
cosponsor of similar legislation this session and in past sessions, 
hope to clarify the intent of the application of the bill's provisions 
in two important ways.
  By way of background, I first introduced a version of this 
legislation in 2003, H.R. 3281, to respond to a series of decisions by 
the Merit Systems Protection Board, MSPB, and the Federal Circuit 
Court. Those decisions undermined Congressional intent with respect to 
the original Whistleblower Protection Act of 1989.
  Specifically, Congress intended that ``any'' protected disclosure of 
waste, fraud, and abuse by a federal employee be covered by the law. As 
interpreted by the MSPB and the Federal Circuit Court, however, 
loopholes began to develop. Congress strengthened the law in 1994, but 
decisions by the MSPB and Federal Circuit Court continued to undermine 
the intent of Congress.
  A mark-up of my original legislation was held in 2004. A mark-up of a 
re-introduced version of the bill, H.R. 1317, was held in 2006. A 
version introduced by Representative Henry Waxman and myself, H.R. 985, 
was passed by the House in 2007. At the core, all of these bills--and 
their Senate versions--restored the Congressional intent of the 
original Whistleblower Protection Act by plugging the loopholes that 
had developed.
  The bill before us today makes the same attempt at restoring 
Congressional intent, but--if interpreted incorrectly--I fear the 
possibility of two more loopholes opening up.
  First, agencies must not be allowed to circumvent whistleblower 
protections through so-called ``secrecy'' regulations, such as a new 
category of information (labeled ``Sensitive Security Information'') 
created by the Department of Homeland Security. Whistleblower law 
understandably already exempts from whistleblower protections 
information which is classified or ``specifically prohibited by law'' 
from release. Classified information is information that is kept secret 
by Executive Order, not a hybrid category of information created by 
agency regulation like ``Sensitive Security Information.'' Moreover, 
``prohibited by law'' has long been understood to mean statutory law 
and court interpretations of those statutes, not to agency rules and 
regulations.
  If the Federal Circuit Court broadens the ``prohibited by law'' 
exemption to include anything that an agency tries to keep secret under 
any of their regulations, a new loophole could be opened up that would 
substantially undermine Congressional intent in passing this bill. It 
is therefore important to once again make it clear: ``Prohibited by 
law'' has long been understood to mean statutory law and court 
interpretations of those statutes, not to agency rules and regulations. 
Any exceptions to these rights must be created by Congress, and 
Congress must act with specificity. That has been the law since 1978, 
and it continues to be the law.
  Second, it must be understood that those whistleblowers who have been 
waiting for this bill to be enacted are protected by its provisions. As 
stated by the Senate Committee on Homeland Security and Governmental 
Affairs in its report accompanying this bill, S. Rpt. 112-155:

       The Committee expects and intends that the Act's provisions 
     shall be applied in OSC [Office of Special Counsel], MSPB, 
     and judicial proceedings initiated by or on behalf of a 
     whistleblower and pending on or after that effective date [30 
     days after the date of enactment of the bill]. Such 
     application is expected and appropriate because the 
     legislation generally corrects erroneous decisions by the 
     MSPB and the courts; removes and compensates for burdens that 
     were wrongfully imposed on individual whistleblowers 
     exercising their rights in the public interest; and improves 
     the rules of administrative and judicial procedure and 
     jurisdiction applicable to the vindication of whistleblowers' 
     rights.

  Some in the whistleblower community have been waiting for more than a 
decade to see Congressional intent with respect to whistleblower law 
restored. The number who could actually take advantage of the 
protections in this bill is probably not large, but their cases are 
significant and justice requires protections for them.
  In concluding, I would like to thank the many, many individuals and 
organizations that have championed this important ``good government'' 
issue over the years. There are more than I could possibly mention, but 
allow me to name just a few: Senator Daniel Akaka, who has pushed this 
issue for years in the Senate; former Representative Connie Morella, 
who introduced the first House version of the bill before her 
retirement; former Representatives Tom Davis and current Representative 
Henry Waxman, who pushed the issue during their service on the 
Government Reform Committee; my colleagues Darrell Issa, Elijah 
Cummings, Chris Van Hollen and their staffs; and, finally, the 
Government Accountability Project (GAP), Project on Government 
Oversight (POGO), and National Taxpayers Union (NTU). Without all of 
their efforts, we would not be in a position to finally secure 
enactment of this important legislation that ensures whistleblowers 
with the courage to report waste, fraud, and abuse are applauded--not 
punished.

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