[Congressional Record Volume 165, Number 62 (Wednesday, April 10, 2019)]
[Senate]
[Pages S2355-S2357]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. The clerk will report the nomination.
  The legislative clerk read the nomination of Holly A. Brady, of 
Indiana, to be United States District Judge for the Northern District 
of Indiana.
  The PRESIDING OFFICER. The Senator from Iowa.


          30th Anniversary of the Whistleblower Protection Act

  Mr. GRASSLEY. Mr. President, today marks the 30th anniversary of a 
very important law--the Whistleblower Protection Act. It is very 
important because people in government ought to listen to 
whistleblowers. They are very patriotic people.
  The law is a critical foundation for the whistleblower protections we 
have in place today. The Whistleblower Protection Act has helped to 
usher in a

[[Page S2356]]

new era at our Federal Agencies. Government employees who are aware of 
waste, fraud, and abuse can now step forward and do the right thing, 
and they can do it with the law on their side.
  As one of the original cosponsors of the Whistleblower Protection 
Act, I remember what things were like before that law was passed. I 
will give some examples, and these examples aren't pretty.
  Back in the 1980s, I used to say that the whistleblower's only hope 
was like the desperate Charge of the Light Brigade. There were rarely 
any survivors. At the time, the executive branch saw whistleblowers not 
as patriots but as threats. Agencies wouldn't even verbally acknowledge 
the importance of whistleblowers in making government accountable to 
the people. Our whistleblower laws had no teeth, so there was nothing 
to stop it from happening and nothing to provide any relief at all to 
the patriotic whistleblowers who were then experiencing retaliation.
  To give an idea of just how bad things were, let's start in 1984. A 
study conducted by the Merit Systems Protection Board found that nearly 
70 percent of government employees who knew of fraud and impropriety 
wouldn't even report it and wouldn't say what they knew about it. They 
believed that no corrections would result if they did, and their No. 1 
reason for nonreporting was fear of reprisal.
  The sitting special counsel from 1982 to 1986 said that if he were an 
attorney advising whistleblowers, he would tell them this: ``Don't put 
your head up, because it will get blown off.'' At the time, the Office 
of Special Counsel was part of a bigger organization that we refer to 
as the Merit Systems Protection Board. Instead of protecting 
whistleblowers, it protected the merit system--not individual 
employees, and, let me emphasize, certainly not whistleblowers. The 
special counsel's office would pursue only those cases it thought it 
could win. If a whistleblower came to it with a retaliation case that 
was difficult to prove, the whistleblower was simply out of luck.

  So the Whistleblower Protection Act, 30 years old, addressed all of 
these problems and then some. That law made the Office of Special 
Counsel into a separate body, and it firmly established that the Office 
of Special Counsel was there solely to protect employees, especially 
whistleblowers.
  In doing so, it gave whistleblowers a new and important ally. The law 
also established that the Office of Special Counsel should act, not 
just when it had an open and shut case but whenever it was likely that 
a prohibited personnel practice had occurred against a whistleblower. 
It made the Office of Special Counsel a chief defender of employees 
subject to prohibited personnel practices. The law addressed other 
problems as well.
  I remember back in the 1980s, the Office of Special Counsel had 
developed a disturbing practice of providing information on 
whistleblowers to Federal Agencies conducting personnel inquiries; as 
an example, people like Elaine Mittleman. Elaine worked at the Treasury 
Department. She went to the Office of Special Counsel alleging reprisal 
against her whistleblowing. When her case was rejected, she learned 
that the Office of Special Counsel had leaked negative information 
about her to the Office of Personnel Management to do her damage. The 
old Office of Special Counsel effectively ensured that Elaine was 
blacklisted from any other Federal employment.
  Thankfully, the Whistleblower Protection Act stopped that practice 
and stopped it cold. The act prohibited the Office of Special Counsel 
from responding to Agency personnel inquiries about Federal employees 
except in the most limited of circumstances. It also expanded the 
definition of a protected disclosure and made it easier for employees 
to show reprisal. Of course, the 1989 law wasn't perfect, and in the 
time since it was passed, Congress expanded it and strengthened the 
Whistleblower Protection Act in very important ways.
  In 2012, I was proud to serve as one of the original cosponsors of 
the Whistleblower Protection Enhancement Act. That legislation plugged 
several holes in the original law and made it clear that the executive 
branch can't use nondisclosure agreements to prevent whistleblowers 
from making protected disclosures. If Federal employees are required to 
sign a nondisclosure agreement, specific language has to be included in 
that agreement making it clear that whistleblowers can still report 
waste, fraud, and abuse. Wouldn't the taxpayers expect a Federal 
employee who knows about waste, fraud, and abuse to report that as a 
responsibility to their office and then not to be reprised against 
because they did?
  It is safe to say that, taken together, the Whistleblower Protection 
Act and the 2012 amendments have had a transformative effect on our 
Federal Agencies. Things are still hard for our whistleblowers in too 
many instances, and we still have a long way to go, but we have come a 
very long way since I first started working on these issues. By the 
numbers, more whistleblowers now report waste, fraud, and abuse, and 
they have the ability to fight retaliation. I hate to say this, but too 
often whistleblowers are retaliated against, even with respect or even 
in consideration of the Whistleblower Protection Act.
  In fiscal year 2017, to show progress and to show that the bill has 
made a difference, the Office of Special Counsel obtained 323 favorable 
actions, including stays, corrective actions, disciplinary actions, and 
systemic changes to Agency practices. That is an Agency record and a 
16-percent increase over the previous year. Of those, 241 involved 
instances of whistleblower retaliation, and 44 involved stays with 
Agencies to protect employees from premature or improper personnel 
actions against them.
  One of those retaliation cases involved a Federal worker who reported 
an Agency official to her management and to the Office of Inspector 
General for suspected theft. In exchange for disclosure, the official 
who was reported demoted the worker to the lowest possible position she 
could.
  That is just one example to show you how patriotic people in the 
Federal employment who are whistleblowers--who just want government to 
do what the law requires or spend the money accordingly--get shafted as 
a result of just doing what you ought to do as a Federal employee: 
report waste, fraud, and abuse and stealing.
  This person had some help because, as I said, she was demoted to the 
lowest possible position that she could; that is, until the worker 
filed a complaint and the Office of Special Counsel investigated. 
Following the investigation of the Office of Special Counsel, the 
complainant was not only reinstated but given backpay and compensatory 
damages. Faced with punitive actions, including temporary suspension 
and a reassignment, the Agency official who had engaged in the 
retaliation decided to resign. That is just one example of how the 
Whistleblower Protection Act has made a difference. I could, of course, 
list many others.

  The Whistleblower Protection Act and its amendments have also had an 
important effect on congressional oversight. Whistleblowers are the 
eyes and ears inside the executive branch. In fact, when people come to 
my office explaining why they ought to be confirmed by the Senate, 
there are a couple of things I always tell them: No. 1, either you run 
your Department or it runs you; No. 2, you ought to listen to the 
whistleblower. Whether you are a little Agency with a couple of 
thousand employees or whether you are the Veterans' Administration with 
350,000-some employees, you can't know what is going on down underneath 
you. When people tell you something is wrong, you ought to listen. Like 
I said, I have found it very helpful with congressional oversight.
  My own oversight efforts would not be possible without the courageous 
action taken by whistleblowers. For example, whistleblowers contacted 
my office during the Obama administration about criminals who should be 
ineligible for DACA but, due to an oversight by the Department, were 
still receiving benefits like work authorization. Scrutiny of the 
program led to more thorough recurrent vetting of the U.S. Citizenship 
and Immigration Services.
  I worked with a number of whistleblowers at the Department of 
Veterans Affairs who had the courage--and it takes courage--to stand up 
and do what is right.
  More recently, my office worked with Brandon Coleman after he was put 
on administrative leave for more than a

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year and kept from running an addiction treatment program for veterans. 
It happens that Brandon's only ``mistake'' was to point out poor 
treatment of suicidal veterans. Eventually, after a concerted effort by 
my office, Senator Johnson's office, and the Office of Special Counsel, 
Brandon was provided a new position within the VA's Office of 
Accountability and Whistleblower Protection. That is how it should be 
done.
  Without the protections established by the Whistleblower Protection 
Act, Brandon's story might have turned out very differently. Without 
these protections, who knows how many other instances of waste, fraud, 
and abuse that we have been able to find and repair thanks to 
whistleblowers would be continuing now unabated?
  Now, make no mistake, we still have a ways to go to ensure that 
whistleblowers are valued as they should be valued and supported as 
they should be supported. I still hear from far too many whistleblowers 
who have done the right thing only to experience retaliation from their 
Agencies as a result.
  We in Congress, including this Senator, shouldn't be hearing those 
things at all. That is why continued oversight by Congress is so very 
important. Whistleblowers depend on us--you and me. All of our 
colleagues in this body ought to be listening to them. We ought to be 
supporting them and honoring them by following up on their concerns and 
taking action to fix serious problems when they bring them to our 
attention.
  I thank the whistleblowers who worked with my office over the years. 
They are truly patriots willing to put their job on the line, willing 
to put their profession on the line. We have come a long way since the 
Whistleblower Protection Act first passed in 1989. We owe it to them to 
build on the progress we made and to continue to improve upon our 
whistleblower laws for years to come.
  You can rest assured that I will be part of those ongoing efforts on 
this important anniversary of the Whistleblower Protection Act. I 
encourage my colleagues to reflect on the important role whistleblowers 
play in our government and to renew their commitment to the same.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SHELBY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.