[Congressional Record Volume 165, Number 166 (Monday, October 21, 2019)]
[Senate]
[Pages S5907-S5908]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WHISTLEBLOWER PROGRAMS IMPROVEMENT ACT OF 2019
Mr. GRASSLEY. Mr. President, on another subject, I recently
introduced the Whistleblower Programs Improvement Act of 2019, a
bipartisan bill, and I have the support of the bipartisan
whistleblowers caucus.
This legislation strengthens whistleblower protection for
whistleblowers working in a variety of key sectors, including our
securities and commodities industries and the foreign service.
There has been a lot of talk about government whistleblowers lately
that is very appropriate. It is important to remember that many of our
whistleblower laws are there to protect just ordinary average Americans
who don't work in government at all. Many of the groups helped by this
bill work in private industry. In some cases, they are investors or
businesspeople who have been on the receiving end of financial fraud.
In other cases, they are employees, like stockbrokers, traders,
investment advisers, administrative professionals, and other support
staff, who see activities in the course of their work that they know
are outright wrong, and these good people decide to speak out. Speaking
out, many times, causes you to eventually seek whistleblower
protection.
Among these brave whistleblowers are people like the three employees
at Merrill Lynch who had evidence that between 2009 and 2015 their
company was misusing customer cash. Now, just think how lucky these
savers were who were helped by whistleblowers willing to come out and
say a wrong has been committed.
They did it this way: The whistleblowers told the Security and
Exchange Commission what they knew. In doing so, they provided
information critical to an investigation of the company's practices.
That investigation uncovered multiple violations of Federal rules.
Among other things, the Securities and Exchange Commission found the
company was not depositing cash in reserve accounts as law required.
Instead, the company was using tricky accounting maneuvers to free up
billions of dollars per week and then using that money to finance its
own trading practices. In the process, it is quite obvious the company
was putting its customers' cash at risk.
The Securities and Exchange Commission said: ``Had Merrill Lynch
failed in the midst of these trades, the firm's customers would have
been exposed to a massive shortfall in the reserve account.''
The information provided by whistleblowers led to a successful
enforcement action, which involved an admission of wrongdoing by the
company and a $415 million settlement.
Now, getting back to the importance of whistleblowers. If these
whistleblowers hadn't stepped forward, then, who knows, those shady
accounting practices might still be going on this
[[Page S5908]]
very day instead of having been stopped--stopped cold. Investors might
still be facing the same unnecessary risks.
Now, there are plenty of examples from the commodities industry as
well--people like Edward Siedle, a whistleblower who informed the
Commodity Futures Trading Commission that JPMorgan Chase was failing to
disclose conflicts of interest with some of its clients. Because Mr.
Siedle decided to speak out about what he knew, the government
collected hundreds of millions of dollars in settlements.
Whistleblowers like Mr. Siedle and the employees at Merrill Lynch
deserve our gratitude, and they deserve our support. They help the
Security and Exchange Commission and the Commodity Futures Trading
Commission to do their job, and they help to promote transparency. With
transparency comes accountability--in this case, for our financial
system.
I will tell you something else they deserve. They deserve assurance
that when they put their jobs and their reputation on the line, they
will not be fired just for trying to do the right thing.
They deserve to know that if the government recovers money because of
their disclosures, they will be able to get a decision on their award
application in a timely fashion. Currently, whistleblowers don't have
these assurances.
Last year, despite strong objections that I raised in a brief to the
Supreme Court in the case of Digital Realty v. Somers, the Court ruled
that a whistleblower who reports violations of our Nation's securities
laws is protected from retaliation not all the time but only when he or
she discloses the wrongdoing directly to the SEC.
Because of this ruling, if a whistleblower in the securities industry
reports a concern to a supervisor at their place of work without also
going to the SEC, they can be fired without any recourse; in other
words, fired for the so-called crime they did, and what did they do?
They did nothing more than what you might call the crime of committing
truth. They have no legal protection or means of getting their job
back.
That is not what Congress intended when it created the current
Security and Exchange Commission Whistleblower Program, and that was
done back in 2010. It is not what I intended when I voted for that
whistleblower protection.
That law was supposed to protect whistleblowers who report
wrongdoing. It was supposed to prevent them from being fired without
just cause.
This decision has far-reaching implications that potentially affect
others beyond those working in the securities industry.
Because the commodities whistleblower program was established through
the same public law as the Security and Exchange Commission program,
that program incorporates many of the same provisions, including
similar language to that which the Supreme Court ruled on during the
Digital Realty case.
That means whistleblowers in yet another program face the prospects
of having anti-retaliation provisions Congress put in place a decade
ago suddenly yanked away from them. That is unacceptable to me. It is a
scenario that should be unacceptable to every Member of this body who
cares about keeping our financial system very strong, protecting the
investor.
My bill prevents the Supreme Court ruling from becoming the status
quo. It makes it clear that whistleblowers who report concerns about
possible violations of our Federal securities and commodities laws are
fully protected, whether they take their concerns to the Security and
Exchange Commission or to the Commodity Futures Trading Commission, or
to anyone else in their company who they reasonably believe has the
ability to address their concerns. That is what companies should want.
They should want it anyway, to keep their public respectability.
It is also a commonsense goal that we ought to be seeking, and it is
common sense.
When an employee tells his or her company about a concern, it gives
the company a chance to investigate and address the concerns, and, if
necessary, to self-report any problems to the Federal regulators.
Companies that come clean and self-report almost always receive
reduced penalties. That is an outcome that is better for the company,
and it is obviously better for the investors.
On another matter, my bill addresses concern for securities and
commodities whistleblowers. I said before that if the government
recovers money as a result of a whistleblower's disclosure, the
whistleblower deserves at least an initial decision concerning their
award application and to do it in a timely fashion. Unfortunately, my
office has heard of far too many cases where whistleblowers have had to
wait years to get a decision from the Securities and Exchange
Commission after they apply for an award, and you apply for the award
after you make the case for the government. Waiting that long is
unacceptable. A year should be more than enough time for regulators to
reach an initial determination regarding an award application.
My bill makes the 1-year standard law for both the Securities and
Exchange Commission and the Commodity Futures Trading Commission
whistleblowers. If the agency takes longer than a year to reach an
initial decision, the whistleblower office must notify the chairman and
the whistleblower of the cause for the delay.
Recently, I had the chance to sit down with Securities and Exchange
Commission Chairman Clayton to discuss these changes. My staff worked
closely with the Securities and Exchange Commission and the Commodity
Futures Trading Commission to craft the language. Now I urge all of my
colleagues to support change, as well.
In addition to these changes, my bill irons out other differences
between the Securities and Exchange Commission and the Commodity
Futures Trading Commission whistleblower programs and ensures that
whistleblowers reporting to both of these bodies have access to the
same judicial remedies.
It also enables the Commodity Futures Trading Commission to hold more
in the consumer protection fund. That is the fund used to pay out its
awards to the whistleblower, and it allows the Commodity Futures
Trading Commission to use money from the fund to teach stakeholders
about the opportunities that are available to them through the
whistleblower program.
Finally, my bill addresses a critical gap in protections provided to
Foreign Service employees through the Whistleblower Protection Act. Due
to a drafting error in the law, the Office of Special Counsel has
stated that it doesn't have the authority to investigate instances of
possible retaliation against Foreign Service workers when the
retaliation comes in the form of a poor performance evaluation. That is
an important task of the Office of Special Counsel and an important
protection that Congress has afforded to other government
whistleblowers. The Foreign Service office's people should have that as
well. My bill closes that gap and makes it clear that Foreign Service
workers should receive those same protections.
In closing, this bill contains commonsense changes. It reinforces and
extends protections that Congress already granted in the past and
ensures that whistleblowers working in different industries who make
similar kinds of disclosures are equally treated and equally protected
under the law. It also tells the Supreme Court of the United States:
You didn't get it right. That is something I am certain we can all get
behind--straightening out the Supreme Court when they don't follow
congressional intent.
The bipartisan coalition of support for this bill is a strong
testament to that. I thank my original cosponsors, Senators Baldwin,
Durbin, and Ernst, for their enthusiastic support of this legislation.
When it comes before the Senate for a vote, I urge all of my colleagues
to do the same.
I yield the floor.
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