[Congressional Record (Bound Edition), Volume 153 (2007), Part 5]
[House]
[Pages 6361-6388]
[From the U.S. Government Publishing Office, www.gpo.gov]




            WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2007

  The SPEAKER pro tempore. Pursuant to House Resolution 239 and rule 
XVIII, the Chair declares the House in the Committee of the Whole House 
on the state of the Union for the consideration of the bill, H.R. 985.

                              {time}  1429


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the state of the Union for the consideration of the bill 
(H.R. 985) to amend title 5, United States Code, to clarify which 
disclosures of information are protected from prohibited personnel 
practices; to require a statement in nondisclosure policies, forms, and 
agreements to the effect that such policies, forms, and agreements are 
consistent with certain disclosure protections, and for other purposes, 
with Mr. Pastor in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered read the 
first time.
  General debate shall not exceed 1 hour and 20 minutes, with 1 hour 
equally divided and controlled by the chairman and ranking minority 
member of the Committee on Oversight and Government Reform and 20 
minutes equally divided and controlled by the chairman and ranking 
minority member of the Committee on Homeland Security.
  The gentleman from Iowa (Mr. Braley) and the gentleman from Virginia 
(Mr. Tom Davis) each will control 30 minutes, and the gentleman from 
Pennsylvania (Mr. Carney) and the gentleman from Connecticut (Mr. 
Shays) each will control 10 minutes.
  The Chair recognizes the gentleman from Iowa.

                              {time}  1430

  Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may 
consume.
  I am proud to be here today to bring to the floor of the House of 
Representatives, H.R. 985, the Whistleblower Enhancement Protection Act 
of 2007. A month ago today this important bill passed the House 
Committee on Oversight and Government Reform unanimously by a vote of 
28-0. I strongly support the bill, and I hope it will receive a similar 
level of bipartisan support on the floor of the House of 
Representatives today. We need to send a strong message that protecting 
the rights of whistleblowers is not a Democratic issue, it is not a 
Republican issue, it is an issue that impacts the lives and the safety 
of every American citizen.
  Whistleblowers have long been instrumental in alerting the public and 
the Congress to wrongdoing in Federal agencies. In many cases, the 
brave actions of whistleblowers have led to positive changes that have 
resulted in more responsible, safe and ethical practices. In some 
instances, the actions of whistleblowers have even saved lives.
  Unfortunately, despite the importance of whistleblowers in ensuring 
government accountability and integrity, court decisions by the U.S. 
Court of Appeals for the Federal Circuit have undermined whistleblower 
protections and have unreasonably limited the scope of disclosures 
protected under current law.
  The hearings that Chairman Waxman and Ranking Member Davis have been 
holding in the Committee on Oversight and Government Reform in the 
110th Congress have highlighted the need for expanded protections for 
workers who shed light on wrongdoing by government agencies and 
departments. Several hearings held by the committee have helped uncover 
waste and fraud in government contracting, both here in the United 
States, and in Iraq, waste and fraud which has led to the loss of 
billions of taxpayer dollars and has jeopardized the safety of 
Americans here at home and those serving abroad.
  At another hearing, we learned that some officials in the Bush 
administration have sought to manipulate Federal climate science, 
compromising the health and safety of American families and the future 
of the planet solely for political gain.
  Perhaps the starkest reminder of the need to protect those who remain 
silent in the face of government wrongdoing came at last week's hearing 
at Walter Reed, at which we learned about the terrible living 
conditions and

[[Page 6362]]

bureaucratic hurdles that soldiers have endured there.
  At the hearing, it became clear that nobody dared to complain about 
the squalid living conditions and inadequate care at what is supposed 
to be the best military facility in the world because of fear of 
retribution.
  Because of this fear, it took an expose by a newspaper in order for 
action to be taken on these severe and systemic problems, and many of 
our Nation's heroes had to suffer there for far too long.
  The Whistleblower Protection Enhancement Act of 2007 makes important 
changes to existing law that will strengthen protections for government 
workers who speak out against illegal, wasteful and dangerous 
practices.
  The bill protects all Federal whistleblowers by clarifying that any 
disclosure pertaining to waste, fraud or abuse, ``without restriction 
as to time, place, form, motive, context or prior disclosure,'' and 
including both formal and informal communications, is protected.
  The bill also gives whistleblowers access to timely action on their 
claims, allowing them access to Federal district courts if the Merit 
Systems Protection Board does not take action on their claims within 
180 days.
  In addition, the bill clarifies that national security workers, 
employees of government contractors, and those who blow the whistle on 
actions that compromise the integrity of Federal science are all 
entitled to whistleblower protection.
  As we continue to fight terrorism and other national security 
threats, this landmark legislation will give whistleblower protections 
to national security whistleblowers for the first time. It may be hard 
to believe, but currently employees at key government agencies in 
charge of protecting the United States, including the FBI, the CIA, and 
the Transportation Security Administration, are excluded from 
whistleblower protections.
  These are the employees who work every day to keep our country safe 
and secure. These workers deserve to have the same protection as other 
Federal employees, and the American public deserves to know that 
workers who come forward with information that is essential to national 
security will not be punished for helping to keep us safe.
  A good example is former FBI agent Coleen Rowley, Time magazine's 
Person of the Year in 2002. Special Agent Rowley graduated from 
Wartburg College in Waverly, Iowa, which is located in my district. 
Like me, she received her law degree from the University of Iowa 
College of Law. She is married and has four children.
  After the terrorist attacks on 9/11, Special Agent Rowley wrote a 
paper for the Director of the FBI, which laid out in detail how 
personnel at FBI headquarters failed to take action on concerns raised 
by the Minneapolis field office concerning its investigation of 
suspected terrorist Zacarias Moussaoui. These failures, identified by 
Special Agent Rowley, could have left the United States vulnerable to 
September 11 attacks in 2001. Special Agent Rowley later testified 
before the Senate and the 9/11 Commission about these very same 
concerns.
  Following those hearings, Iowa Senator Chuck Grassley, a Republican 
who has been a proponent of whistleblower protection, pushed for a 
major reorganization at the FBI, resulting in the creation of the 
Office of Intelligence, which significantly expanded FBI personnel with 
counterterrorism and foreign language skills.
  Senator Grassley commended the actions of Rowley, saying on the floor 
of the Senate last June, ``in typical FBI fashion, the missteps from 9/
11 would have been swept under the rug if it weren't for whistleblowers 
like Coleen Rowley . . . it looks to me like she's the only one who did 
anything to make sure the FBI was held responsible for its lack of 
responsiveness.''
  The Whistleblower Protection Enhancement Act also ensures that 
employees who work for companies that have government contracts are 
protected when they report waste, fraud, and abuse of taxpayer dollars. 
This provision is especially important, considering the use of private 
contractors by the United States Government has reached an all-time 
high, and that spending on Federal contracts has almost doubled since 
2000, reaching $400 billion in 2006.
  Private companies with government contracts are now performing some 
of the most important work of the government, including protecting 
civilian workers in Iraq and ensuring the safety of American citizens 
in the United States. This bill will help ensure that employees of 
government contractors, who report on the abuse of taxpayer dollars or 
other wrongdoing, do not have to fear the loss of their jobs or other 
retribution.
  Finally, Mr. Chairman, this bill clarifies that employees who blow 
the whistle on political interference in Federal scientific research 
and reports are also entitled to whistleblower protections. It is 
essential that we have the best and most accurate scientific research 
and information that is possible.
  Americans trust that their tax money is funding thorough and adequate 
scientific studies that are free from political interference or 
manipulation. As lawmakers, we also depend on accurate and unbiased 
scientific information to make policy decisions that will impact the 
lives and futures of American families.
  Protecting government researchers who report actions or policies that 
compromise the accuracy and integrity of Federal science is critical to 
ensuring the public and the lawmakers are able to make wise and 
informed decisions that affect our lives now and will have 
repercussions far into the future.
  I would like to thank Chairman Waxman and Ranking Member Davis for 
their work on this bill in the Committee on Oversight and Government 
Reform.
  Again, I strongly urge my colleagues to support the passage of the 
Whistleblower Enhancement Protection Act today.
  Mr. Chairman, I reserve the balance of my time.
  Mr. TOM DAVIS of Virginia. Mr. Chairman, today, we take up the 
Whistleblower Protection Enhancement Act of 2007. This legislation 
would modernize, clarify, and expand the laws protecting Federal 
employees who blow the whistle on waste, fraud, and mismanagement in 
the Federal Government.
  At the outset, I think it is important to thank my colleague from 
Pennsylvania (Mr. Platts). Throughout this process, Mr. Platts has been 
an unwavering advocate for Federal employees. This bill would not exist 
today in this form if not for his steady leadership.
  Almost immediately following the 1994 changes in the Whistleblower 
Protection Act, it became clear that the Federal Circuit Court of 
Appeals would continue to create loopholes where no loopholes were 
intended and dilute protections for whistleblowers Congress clearly 
intended to protect.
  This bill we are considering today develops a new regime governing 
whistleblower protections and offers fresh solutions to the continuing 
problem of employee retaliation. I am proud this legislation would 
allow Federal employees and contractor personnel to pursue their claims 
in the Federal district court, to be heard before a jury of their 
peers, if no action is taken by the Merit Systems Protection Board 
within 180 days.
  Under current law, cases filed by employees who believe they have 
been retaliated against for blowing a whistle can sometimes end up 
languishing before the MSPB for years before a final decision is 
issued. H.R. 985 would change the process and allow Federal employees 
to reach resolution on this issue one way or the other.
  I am disappointed, however, the Rules Committee did not make in order 
my amendment to remove from the bill language which would provide for 
an ``all circuits'' review of whistleblower claims.
  My amendment would have tried to maintain the uniformity in the 
consideration of whistleblower cases in the Federal courts by keeping 
in place the current requirement that all whistleblower appeals go 
through the United

[[Page 6363]]

States Court of Appeals for the Federal Circuit, rather than opening up 
appeals to all circuits.
  Without my amendment, Federal employee whistleblowers could end up 
possessing a different set of rights and protections based on where 
they file their claim. For example, a Border Patrol agent in Texas 
could be protected by a different set of whistleblower protections than 
a Border Patrol agent in Maine.
  I think the underlying legislation already provides sufficient 
reforms to the whistleblower protection laws by revising the statute 
under which the Federal Circuit reviews whistleblower claims. Going 
further in this legislation, removing the requirement that all appeals 
must go through one Federal appeals court, is going to, in the long 
term, be counterproductive to our policies governing Federal 
employment.
  I am also interested in the amendment dealing with national security 
whistleblowers Mr. Hoekstra filed at Rules, but was not made in order. 
While I supported the language Mr. Hoekstra's amendment sought to 
strike, I understand many members from the intelligence-related 
committees and officials in the intelligence community have concerns 
which I believe need to be addressed before this bill moves on to the 
Senate.
  One additional concern I would like to mention is with section 13 of 
the bill. Section 13 would open a whole new area of personnel conflicts 
to whistleblower protections. This new language, added to the bill this 
year, would make influencing federally funded scientific research a 
prohibited personnel practice by specifically identifying the 
dissemination of false or misleading scientific or medical or technical 
information as an ``abuse of an authority'' that is actionable in 
Federal court.
  Rather than acknowledging the natural and perfectly healthy tension 
that exists between science and policymaking, this section would submit 
the ``science versus ethics'' issue to the Federal courts to be 
litigated as a personnel issue.
  Unlike many on the Democratic side of the aisle who believe only 
scientific findings should serve as the foundation for public policy 
and decisionmaking, I believe science is just one cog in the policy 
decisionmaking process. Science must be balanced against factors such 
as the morals of our society and the ethics of individual policymakers, 
as well as countless other policy considerations. As I have said 
before, I don't believe we should turn the tension between science and 
policymaking into a personnel matter that gets litigated by the courts.
  In closing, I believe the underlying legislation makes a number of 
important positive contributions to Federal whistleblower policy, and I 
support this bill.
  While I believe we can still make a few refinements to the bill to 
make it better, I applaud Mr. Platts' and Mr. Waxman's efforts to move 
this bill forward.
  Mr. Chairman, I reserve the balance of our time.
  Mr. BRALEY of Iowa. Mr. Chairman, I yield 5 minutes to the chairman 
of the committee, Mr. Waxman of California.
  Mr. WAXMAN. I thank the gentleman from Iowa for yielding me the time 
and for managing this bill. He has played a very important role in the 
committee in the formulation of this legislation and is far more 
knowledgeable than many of us because he has had experience in bringing 
whistleblower lawsuits as an attorney.
  Mr. Chairman, this bill that we are considering at this time would 
strengthen one of our most important weapons against waste, fraud and 
abuse, and that is Federal whistleblower protections. Protecting 
whistleblowers is a key component of government accountability.
  Federal employees are on the inside. They can see where there is 
waste going on or if there is corruption going on. They can see the 
signals of incompetent management, and what we want is to enable them 
to let us know, those of us in Congress, about these kinds of problems. 
So this bill would give them the protections to come forward and, in 
effect, blow the whistle on what they know is going on and is not right 
to be continued.
  But I want to emphasize that one of the most important provisions of 
H.R. 985 protects national security whistleblowers.

                              {time}  1445

  It is impossible to overstate how essential this provision will be. 
Now, there may be an attempt to try to strike this provision, and I 
want to make clear to my colleagues why they should not be misled into 
voting for such a motion.
  There are a lot of Federal officials who knew the intelligence on 
Iraq was wrong. Officials in the CIA and the State Department knew that 
Iraq did not try to import uranium from Niger. Officials in the Energy 
Department knew the aluminum tubes were not suitable for nuclear 
centrifuges. Other officials knew the information from ``Curveball,'' 
the so-called informant that turned out to be inaccurate, but the 
information that he was spreading about so-called mobile weapons labs 
were completely bogus.
  But none of these officials would come forward. In fact, none of them 
could come forward to Congress and share their doubts. If they did, 
they could have been stripped of their security clearances, or they 
could have been fired.
  And we all know what the result has been. Nobody blew the whistle on 
the phony intelligence that got us into the Iraq war.
  It is imperative that national security employees be protected 
against retribution so they will not be afraid to report national 
security abuses to Members of Congress. When the intelligence is wrong, 
the consequences for our Nation can be immense.
  H.R. 985 also extends whistleblower protections to employees of 
Federal contractors. Every year, Federal contractors do more and more 
of the government's work. In 2005, nearly 40 cents of every Federal 
dollar, outside of the entitlements, went to private companies. We need 
to encourage the employees of these private companies to report 
wasteful spending.
  We heard testimony in our Oversight Committee about a Halliburton 
truck driver, not just one but many of them, who were told, if they had 
a flat tire or some mechanical problem, not to worry about it, torch 
the truck. They will just go and buy another one. After all, these were 
cost-plus contracts.
  Well, this abuse was so wanton that one of the truck drivers finally 
blew the whistle. But rather than being protected for speaking out for 
the American taxpayer, he was fired.
  Finally, passage of this bill would stop this kind of intimidation. 
This legislation includes an important provision that will help check 
the growing problem of political interference with science. It gives 
explicit provisions to protect the Federal employee who reports 
instances where Federal scientific research is suppressed or distorted 
for political reasons.
  Don't buy the argument that this should be struck. We ought to 
protect scientists from those that would try to suppress or distort 
their scientific work.
  The bill is bipartisan. It was cosponsored by Ranking Member and 
former Chairman Tom Davis of the Oversight Committee and former 
subcommittee Chair Todd Platts. It passed unanimously last month by the 
Committee on Oversight and Government Reform.
  It is carefully crafted legislation that protects both our national 
security and the interests of the American taxpayer, and I urge its 
adoption.
  Mr. Chairman, I am including with my statement copies of letters 
between my Committee, Oversight and Government Reform, and the 
Committee on Homeland Security regarding jurisdiction.

                                         House of Representatives,


                               Committee on Homeland Security,

                                   Washington, DC, March 14, 2007.
     Hon. Henry Waxman,
     Chairman, Oversight and Government Reform Committee, 
         Washington, DC.
       Dear Henry: I am writing you considering the jurisdictional 
     interest of the Commttee on Homeland Security in H.R. 985, 
     the ``Whistleblower Protection Enhancement Act of 2007.'' 
     Section 12 of this legislation provides whistleblower 
     protections to Transportation Security Administration (TSA)

[[Page 6364]]

     employees. Under House Rule X, the Committee on Homeland 
     Security has jurisdiction over the ``[t]ransportation 
     security activities'' of the Department of Homeland Security 
     and ``[o]rganization and administration of the Department of 
     Homeland Security.'' As a result, the Committee on Homeland 
     Security has a jurisdiction interest in section 12 of the 
     bill. Moreover, the Committee on Homeland Security received a 
     sequential referral of a nearly identical bill, H.R. 1317, 
     the Federal Employee Protection of Disclosures Act, 
     legislation that was introduced by Rep. Todd Platts (R-PA) in 
     the 109th Congress. Although the Committee on Homeland 
     Security has sought a sequential referral of H.R. 985, the 
     Committee agrees to discharge the legislation in the interest 
     of clearing this measure as expeditiously as possible for 
     consideration in the House.
       As a condition to our agreement to forgo a markup of this 
     legislation, you have agreed to include report language to 
     accompany the bill that clarifies the congressional intent 
     behind that the term ``public safety'' in 5 U.S.C. 2302 
     (b)(1),(8), and (9), as amended by H.R. 985, is meant to 
     cover ``national security'' and ``homeland security.'' This 
     clarification will ensure that TSA employees who report 
     security risk, in addition to safety risks or mismanagement 
     issues, will still receive the whistleblower protections 
     granted under the bill. Additionally, you have agreed to 
     include report language to accompany Section 10 of the bill 
     to ensure Department of Homeland Security employees who work 
     on intelligence and information-sharing matters are covered 
     by the ``National Security Whistleblower Rights'' granted 
     under that section.
       Our agreement not to hold a markup is also conditioned upon 
     our mutual understanding that our decision to waive further 
     consideration does not, in any way, reduce or otherwise 
     affect the jurisdiction of the Committee on Homeland Security 
     over provisions of the bill. Additionally, you have agreed to 
     support the request of the Committee on Homeland Security to 
     have its members named as conferees in the event of a 
     conference with the Senate on this bill.
       I ask that you please include in the Congressional Record 
     during consideration on the floor, a copy of this letter and 
     a copy of your response acknowledging the Committee on 
     Homeland Security's jurisdictional interest in this bill and 
     indicating your support of our agreement expressed in this 
     letter.
           Sincerely,
                                               Bennie G. Thompson,
     Chairman.
                                  ____

                                         House of Representatives,


                 Committee on Oversight and Government Reform,

                                   Washington, DC, March 13, 2007.
     The Hon. Bennie G. Thompson,
     Chairman, House Committee on Homeland Security,
     Washington, DC.
       Dear Chairman Thompson, I am writing regarding your 
     Committee's jurisdictional interest in H.R. 985, the 
     Whistleblower Protection Enhancement Act of 2007. I 
     appreciate your cooperation in waiving consideration of the 
     bill by the Committee on Homeland Security in order to allow 
     consideration of the legislation on the House floor later 
     this week.
       I recognize that your Committee has a valid jurisdictional 
     interest in section 12 of H.R. 985, as ordered reported by 
     the Committee on Oversight and Government Reform. Your 
     decision to forego a markup should not prejudice the 
     Committee on Homeland Security with respect to its 
     jurisdictional prerogatives on this or similar legislation. I 
     will support your request for an appropriate number of 
     conferees should there be a House-Senate conference on this 
     or similar legislation.
       I have included report language at your request that states 
     that under the bill, Transportation Security Administration 
     workers can report dangers to public health and safety, 
     including those regarding or relating solely to homeland or 
     national security. Also, the report states that the national 
     security whistle blower section of the bill provides 
     whistleblower rights to those individuals whose job functions 
     make them eligible for the protections of this section even 
     though their agencies are not specified, such as intelligence 
     analysts and information sharing employees with access to 
     classified information within the Department of Homeland 
     Security's Office of Intelligence and Analysis.
       Finally, I will include a copy of your letter and this 
     response in the Congressional Record when the legislation is 
     considered by the House.
       Thank you for your assistance.
           Sincerely,
                                                  Henry A. Waxman,
                                                         Chairman.

  Mr. PLATTS. Mr. Chairman, I yield 4 minutes to the gentleman from 
Michigan (Mr. Hoekstra), the distinguished ranking member of the House 
Permanent Select Committee on Intelligence.
  Mr. HOEKSTRA. Mr. Chairman, I appreciate the efforts to enhance 
protection for whistleblowers in the intelligence community, a goal 
that I wholeheartedly endorse. It is important that personnel within 
the intelligence community have appropriate opportunities to bring 
matters to Congress so long as the mechanisms to do so safeguard highly 
sensitive classified information and programs. The bill before us 
raises significant issues in doing so that need more considered review.
  As chairman of the Permanent Select Committee on Intelligence during 
the last Congress, I learned firsthand from whistleblowers about 
intelligence programs that the administration had not reported to the 
Intelligence Committees, despite its statutory duty to keep us fully 
and currently informed. I communicated my strong concerns directly to 
the President. I would vigorously defend the individuals who provided 
me with this important information from even the slightest reprisal.
  So I strongly support the underlying intention of the provisions of 
the bill intended to protect the intelligence community. Unfortunately, 
however, that part of the bill was not coordinated with HPSCI, and it 
suffers from a number of problems that I believe need to be fixed.
  First, the bill would conflict with the provisions of the existing 
Intelligence Community Whistleblower Protection Act of 1998, which has 
already provided specific mechanisms to permit whistleblowers to come 
to Congress, while simultaneously protecting sensitive national 
security information from unauthorized disclosure to persons not 
entitled to receive it.
  Second, the bill violates the rules of the House by encouraging 
intelligence community personnel to report highly sensitive 
intelligence matters to committees other than the Intelligence 
Committees, which were created to solely and appropriately deal with 
and safeguard information regarding sensitive intelligence programs.
  This is simply not a jurisdictional issue. The real issue is one of 
protecting highly classified intelligence programs and ensuring that 
any oversight is conducted by Members and staff with the appropriate 
experiences, expertise, and clearances. Our intelligence oversight 
should be conducted to determine how best to enhance our national 
security, protect civil liberties, and not to get press coverage.
  Third, this bill would make every claim of a self-described 
whistleblower, whether meritorious or not, subject to extended and 
protracted litigation. It would also substantially alter the 
application of the judicially established state secrets privilege in 
those cases, forcing the government to choose between revealing 
sensitive national security information to defend itself or losing in 
court. Judges recognized the privilege precisely because they 
understood that such a Hobson's choice is fundamentally improper and 
unfair and could harm national security interests. The current law 
works to screen frivolous whistleblower claims and recognizes that our 
national security interest should not be managed by lawsuit. Those 
considerations must continue to be protected.
  I agree very strongly with the principle that intelligence community 
whistleblowers should be protected from reprisal, and would look 
forward to working with the Oversight and Government Reform Committee 
to accomplish this goal. However, until those changes are made, and 
those issues are addressed, I would encourage my colleagues to vote 
``no'' on this bill.
  Mr. BRALEY of Iowa. Mr. Chairman, I yield 4 minutes to my 
distinguished colleague from Maryland, Mr. Cummings.
  Mr. CUMMINGS. Mr. Chairman, I rise in support of the Whistleblower 
Protection Enhancement Act of 2007, which I have cosponsored.
  To say the least, this administration has not prioritized openness in 
government, and I was not surprised to learn that the President is 
opposed to the Whistleblower Protection Enhancement Act.
  I am similarly not surprised to learn that the President and many of 
his colleagues here in the Congress have threatened that by affording 
our Federal employees whistleblower protections, we are also 
threatening national

[[Page 6365]]

security. This administration has consistently used security threats to 
strike fear into the public's consciousness.
  But let me be clear: Claims that the legislation we are considering 
here today would threaten national security are baseless. If anything, 
the opposite is true.
  As a member of the House Armed Services Committee, I know how vitally 
important it is for Federal officials to be able to share their 
knowledge and their firsthand experience with the Congress. We now know 
that, going into the Iraq war, Federal officials at the CIA and the 
State Department were aware that the pre-war intelligence about Iraq 
purporting to show that the nation had weapons of mass destruction was 
wrong.
  Thousands of Americans and Iraqi lives and billions of American 
taxpayer dollars could have been saved if these individuals had been 
able to share their knowledge with a Congress willing to listen to them 
and protect them from retribution. But, lacking whistleblower 
protections, they were afraid to do so.
  Recognizing the critical need for Federal employees to communicate 
openly with the legislative branch, Congress in 1912 enacted the Lloyd-
LaFollette Act. And that act, which has never been repealed, by the 
way, affords all Federal employees, including employees at the national 
security agencies, the right to contact Members of Congress.
  The statute states as follows: ``The right of employees, individually 
or collectively, to petition the Congress or a Member of Congress or to 
furnish information to either House of Congress or to a committee or 
Member thereof may not be interfered with or denied.''
  The statute's language was intentionally drafted to be broad because 
Congress recognized in 1912, as we recognize today, the compelling need 
for Federal employees to exercise their rights to free speech.
  But the law clearly does not go far enough. Consider the case of FBI 
Special Agent Bassem Youssef. According to a Washington Post article 
from July 18, 2006, an internal investigation conducted by the United 
States Justice Department concluded that Youssef, the FBI's highest 
ranking Arabic speaker, was blocked from a counterterrorism assignment 
in 2002 after he had met with U.S. Representative Wolf and met with FBI 
Director Mueller to discuss Youssef's complaints with regards to the 
way the war on terror was being conducted.
  Mueller had approved a transfer for Youssef just days before the 
meeting, but it never occurred and Youssef was never informed of 
Mueller's decision, according to the report.
  Investigators also said that the FBI has provided no rationale or 
basis for its failure to promote Youssef, although one former senior 
FBI manager said Mueller was appalled that Youssef had complained to a 
Congressman about his treatment.
  Because of this retaliation, we lost 4 years of expertise for the war 
on terror from a highly qualified Arab American agent. Once the FBI's 
top Arabic translator, Youssef is now simply processing documents.
  Under current law, Youssef cannot pursue legal action for the 
retaliation. The Whistleblower Protection Enhancement Act of 2007 would 
rectify this situation.
  Congress has a mandate to oversee the functions of the executive 
branch to ensure that government runs as effectively and efficiently as 
possible, but we cannot fulfill this mandate if we cannot get reliable 
information, and we cannot get that information if people must put 
their lives and careers on the line.
  Mr. PLATTS. Mr. Chairman, I yield myself as much time as I may 
consume.
  Mr. Chairman, H.R. 985, the Whistleblower Protection Enhancement Act, 
is a bipartisan bill which seeks to restore protections for civil 
servants who report illegalities, gross mismanagement and waste, and 
substantial and specific dangers to the public health and safety.
  H.R. 985 contains many of the provisions of legislation which I 
introduced during the 109th Congress, H.R. 1317. It represents 
consensus language crafted through bipartisan negotiations among 
myself, Chairman Waxman, Ranking Member Davis, Representative Van 
Hollen, as well as the majority and minority staffs of the Oversight 
and Government Reform Committee, and interested stakeholders groups 
such as the Government Accountability Project. I certainly would like 
to thank all who have been involved in this process.
  To provide context for the legislation we are considering today, it 
is important to review the legislative history in the area of 
whistleblower protections for Federal employees.
  As a result of finding that the civil service protections of the time 
were inadequate, Congress, in the first Bush administration, enacted 
into law the Whistleblower Protection Act, WPA, of 1989, which 
expressly stated that ``any protected disclosure of waste, fraud and 
abuse by a Federal employee is covered by the law.''
  Unfortunately, as interpreted by the Merit Systems Protection Board 
and the Federal circuit court, loopholes began to develop in the WPA. 
Accordingly, Congress strengthened the law in 1994.
  It is noteworthy that the report accompanying the WPA Amendments of 
1994 expressed great frustration with the way the WPA was being 
interpreted. According to the report, it states, ``Perhaps the most 
troubling precedents involved the Board's inability to understand that 
'any' means 'any.' The WPA protects any disclosure evidencing a 
reasonable belief of specified misconduct, a cornerstone to which the 
MSPD remains blind.

                              {time}  1500

  ``The only restrictions are for classified information or material, 
the release of which is specifically prohibited by statute. Employees 
must disclose that type of information through confidential channels to 
maintain protection. Otherwise, there are no exceptions.''
  Unfortunately, we are once again largely back to where we started. 
Since the 1994 amendments, 177 whistleblower cases have come before the 
Federal Circuit Court; however, only two whistleblowers have prevailed. 
Among the reasons are a number of decisions which have continued to 
create exceptions to the law, including decisions stating that an 
employee is not protected by the WPA if the employee directs criticism 
to other witnesses or a supervisor in an attempt to start the process 
of challenging misconduct, or the information disclosed was done in the 
course of the employee's ordinary job duties, or the information 
disclosed has already been raised by someone else.
  In addition, the Federal Circuit Court has stated in one case that: 
For a Federal employee to reasonably believe there is evidence of 
waste, fraud, and abuse, as required by the law, he or she must 
overcome with irrefragable proof the presumption that the agency was 
acting in good faith.
  This is an unheard of legal standard, defined in the dictionary as 
``impossible to refute.'' In other words, the agency pretty much has to 
admit to the waste, fraud, or abuse.
  H.R. 985 would clarify congressional intent that any whistleblower 
disclosure includes disclosures ``without restriction to time, place, 
form, motive, context, or prior disclosure made to any person by an 
employee or applicant, including a disclosure made in the ordinary 
course of the employee's duties.'' In addition, H.R. 985 would end any 
uncertainty about the irrefragable proof standard, making it clear that 
the ``substantial evidence standard'' applies to all five categories 
for legally protected whistleblowing disclosures. Appellate courts 
could not impose additional burdens for a particular category, as I 
understand occurred in the case of White v. Department of Air Force 
with respect to ``gross mismanagement.''
  Other provisions within H.R. 985 which are either identical or 
similar to provisions within previous versions of this legislation 
include:
  Allowing employees the option to have their claims decided in Federal 
District Court if the Merit Systems

[[Page 6366]]

Protection Board does not act on a claim within 180 days;
  Ending the monopoly jurisdiction of the United States Court of 
Appeals for the Federal Circuit over appeals under the Whistleblower 
Protection Act;
  Conducting a GAO study on the revocation of security clearances in 
retaliation for whistleblowing;
  Extending whistleblower protections to the Transportation Security 
Administration baggage screeners;
  Enhancing whistleblower protections for employees of government 
contractors;
  Codifying an anti-gag rule that was first included in the Treasury 
Appropriations bill for 1988 and every year thereafter; and,
  Continuing protections for whistleblowers who were subjected to 
prohibited personnel actions prior to their agency or unit being 
exempted from the WPA.
  In conclusion, I would like to once again thank each of the parties 
who have been involved in the ongoing development of this critically 
important legislation. I would also like to thank those courageous 
citizens who have blown the whistle on waste, fraud, and abuse in the 
Federal Government. If we truly want to eliminate waste, fraud, and 
gross mismanagement throughout the Federal Government, then we need to 
empower and protect our Federal employees who are on the front lines of 
government operations and best positioned to witness this waste, fraud, 
and gross mismanagement. This legislation provides such empowerment and 
protection. I urge a ``yes'' vote.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BRALEY of Iowa. Mr. Chairman, I thank the gentleman for his 
insightful comments, and I reserve the balance of my time.
  Mr. PLATTS. Mr. Chairman, does the gentleman from Iowa have any 
additional speakers?
  Mr. BRALEY of Iowa. Yes.
  Mr. PLATTS. Mr. Chairman, I will then continue to reserve the balance 
of my time.
  Mr. BRALEY of Iowa. Mr. Chairman, I yield 3\1/2\ minutes to the 
distinguished gentlewoman from Texas (Ms. Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished 
gentleman for his leadership, and I thank all of the cosponsors that 
have brought this legislation, H.R. 985, to the floor, Representatives 
Henry Waxman, Todd Platts, Chris Van Hollen, and Thomas Davis, and 
certainly a number of the total of 29 cosponsors, and the fact that 
this committee voted the whistleblower protection out unanimously.
  We who are members of the Homeland Security Committee, along with 
Chairman Thompson, and I know we have been working on this with the 
ranking member as well, stand in support of this legislation. I know 
that we will be yielded time shortly, but I am delighted to be able to 
share my thoughts on the importance of H.R. 985, which would extend 
whistleblower protection to Federal workers who specialize in national 
security issues. It would also ensure that employees who work for 
companies with government contracts are protected when they report 
waste, fraud, and abuse of U.S. taxpayer dollars.
  Protecting scientific whistleblowers, this legislation would extend 
whistleblower protection to Federal employees who disclose actions 
related to the validity of federally funded scientific research and 
analysts. Many of us recognize and remember the Los Alamos incident of 
a couple years ago still was never, if you will, explored and never 
settled.
  This also would override several court and administrative decisions 
that undermine existing whistleblower protection, provide whistleblower 
access to Federal District Courts if the Merit Systems Protection Board 
or the Inspector General does not take action on their claims within 
180 days.
  This is good news to the Homeland Security Department and 
particularly the transportation security officers. Contrary to 
assertions by the opponents of the bill, TSOs do not have any 
meaningful whistleblower rights. The truth is, TSOs do not enjoy full 
whistleblower protection; specifically, transportation security 
officers enjoy little more than minimal whistleblower protections 
deriving from a memorandum of understanding entered into when the TSA 
was still part of the Department of Transportation. Under the MOU, 
screeners can only bring a claim to the office of a special counsel; 
they do not have the right of appeal or to seek independent review by 
another agency or court.
  It is important to note that in 2004 the Merit Systems Protection 
Board ruled in a case, Schott v. Department of Homeland Security, that 
the Homeland Security Act does not provide TSA screeners the right to 
bring a claim before the MSPB, even though such rights were enjoyed by 
all other department employees.
  This is crucial. I have been working on this issue for quite a while. 
The No Fear Act, which indicated or had to do with discrimination 
against workers at the Environmental Protection Agency, generated, even 
though it is a bill on discrimination of Federal employees that 
generated from whistleblower employees at the Environmental Protection 
Agency that didn't have the necessary protection to talk about issues 
that dealt with regular issues of research, but also on the issue of 
security. Let me quickly say that the EPA had a similar problem where 
it also faced no protection of those employees, and the No Fear Act 
came out of that which had to do with racial discrimination against 
Federal employees.
  But NASA, for example, legislation that I wrote dealing with the 
International Space Station to give protection to NASA employees to 
save lives and also to protect them in case of issues that they were 
dealing with relating to national security.
  All employees should feel free to tell the truth. All employees 
should be protected, particularly Federal employees, particularly in 
this time in the backdrop of 9/11. Tell the truth, be protected, and 
the whistleblower protection will allow us to run this country in the 
right way, save lives, and have employees that are Federal Government 
employees gives us the fact so we can do the right thing. Support H.R. 
985.
  Mr. Chairman, I rise today in strong support of H.R. 985, the 
``Whistleblower Protection Enhancement Act of 2007,'' which extends 
whistleblower protections to federal employees and contractors working 
in the area of national security and intelligence, including screeners 
at the Transportation Security Administration (TSA).
  Mr. Chairman, there is a tremendous need to protect our best sources 
for identifying waste fraud and abuse--federal workers and contractors. 
H.R. 985 treats Transportation Security Officers (TSOs), sometimes 
called ``screeners,'' the same as all other Department employees by 
giving them full whistleblower protections, which TSOs currently do not 
have.
  Mr. Chairman, contrary to assertions by opponents of the bill, TSOs 
do not have any meaningful whistleblower rights. The truth is TSOs do 
not enjoy full whistleblower protections. Specifically, TSOs enjoy 
little more than minimal whistleblower protections deriving from a 
Memorandum of Understanding (MOU) entered into when TSA was still part 
of the Department of Transportation.
  Under this MOU, screeners can only bring a claim to the Office of 
Special Counsel; they do not have a right of appeal or to seek 
independent review by another agency or court.
  Mr. Chairman, in 2004, the Merit Systems Protection Board (MSPB) 
ruled in Schott v. Department of Homeland Security, that the Homeland 
Security Act does not provide TSA screeners the right to bring a claim 
before the MSPB, even though such rights were enjoyed by all other 
Department employees.
  Thus, as you can see Mr. Chairman, TSOs are treated differently than 
other Department of Homeland Security personnel--including fellow 
employees within TSA.
  This bill allows a whistleblower to seek relief in federal circuit 
court, if his or her claim has not been acted upon within 6 months. In 
addition, H.R. 985 permits the whistleblower to bring an appeal on 
their case to any federal circuit court of appeals having in personam 
jurisdiction, not just the Court of Appeals for the Federal Circuit as 
is the case under current law.
  I am also pleased that this bill provides the same rights to the 
Department's Office of Intelligence and Analysis employees as it does

[[Page 6367]]

to intelligence employees in other agencies. I do not have to tell you, 
Mr. Chairman, that whistleblowers in the intelligence community must be 
careful when they disclose certain information.
  H.R. 985 set forth procedures which enable whistleblowers to assert 
their claims, while at the same time adequately protecting any 
sensitive or classified information involved with such claims.
  Mr. Chairman, I note that H.R. 1, which passed the House in January, 
seeks to improve the poor morale problem at TSA by giving TSO employees 
whistleblower and collective bargaining rights. These collective 
bargaining rights are comparable to other law enforcement officers and 
others within the Department, such as the Border Patrol, Customs and 
Border Protection Officers.
  Mr. Chairman, as a senior member of the Homeland Security Committee 
and chair of the Subcommittee on Transportation Security and 
Infrastructure Protection, I am proud to support H.R. 985. This bill 
will help the federal government keep make America safer and more 
secure by encouraging and protecting employees who come forward to 
report waste, fraud, wrongdoing, or abuse of vital and limited 
government resources. I urge all members to join me in voting for this 
important legislation.
  Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
  In the report language from the Committee on Oversight and Government 
Reform, there is a well-stated argument about the importance of this 
legislation, why we need it, and why we need it for national security 
employees as well. The report reads as follows:
  ``A key component of government accountability is whistleblower 
protection. Federal employees are on the inside. They can see when 
taxpayer dollars are wasted and are often the first to see the signals 
of corrupt or incompetent management.
  ``Unfortunately, whistleblowers too often receive retaliation rather 
than recognition for their courage. They need adequate protections so 
they are not deterred from stepping forward to blow the whistle.
  ``There are many Federal Government workers who deserve whistleblower 
protection, but perhaps none more than national security officials. 
These are Federal Government employees who have undergone extensive 
background investigations, obtained security clearances, and handled 
classified information on a routine basis. Our government has concluded 
that they can be trusted to work on the most sensitive law enforcement 
and intelligence projects, yet these officials receive no protection 
when they come forward to identify abuses that are undermining our 
national security efforts.''
  I think the report language well states the case for this bill and 
the importance of us adopting this legislation and moving the process 
forward.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BRALEY of Iowa. Mr. Chairman, I yield 2 minutes to the 
distinguished gentleman from Illinois (Mr. Davis).
  Mr. DAVIS of Illinois. Mr. Chairman, I rise in strong support of H.R. 
985, and I do so for a number of reasons. We all know that there are 
individuals who would love to simply be forthcoming with information. 
All of us have been places, all of us have worked places, all of us 
have known things, and we have all wanted to operate free and 
uninhibited. But unless individuals have the absolute protection, in 
many instances, of knowing that whatever it is that they would reveal 
that when they come forth that nobody can use that against them, 
because they also have concerns of their own relative to being able to 
maintain the job that they have got to take care of the security needs 
of their family.
  Whistleblower protection could have been used more effectively even 
as we debated the issue of Iraq, as we made decisions based upon 
intelligence that supposedly we had but intelligence that obviously we 
did not have.
  Whistleblower protection becomes very effective in helping to root 
out waste, fraud, and abuse. Some of the hearings that I have sat in on 
where we have discussed how we made use of our contracting resources in 
Iraq, for example, makes one wonder if we were just giving away the 
valuable resources of the American people.
  So this legislation not only protects the taxpayers' money, but it 
also protects our troops, our soldiers, those who are in danger 
oftentimes because accurate information has not been deployed. Mr. 
Chairman, I urge passage of 985.
  Mr. PLATTS. Mr. Chairman, I continue to reserve the balance of my 
time.
  Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, I see some of my distinguished colleagues here today, 
specifically Ranking Member Davis, Congressman Shays. And to prepare 
for this debate today, Mr. Chairman, I watched a movie, ``The 
Insider,'' last night, because it was a classic example of why we need 
whistleblower protection in this country. The sight of those seven 
tobacco company CEOs standing before the committee on which I am proud 
to serve, raising their hands and swearing that tobacco and nicotine is 
not addictive, and the compelling personal story of Jeffrey Weigand and 
the struggle he and his family went through are why we need to support 
this bill today.
  One of the reasons why we are here today is because of the compelling 
stories of dozens of national security whistleblowers from multiple 
Federal agencies who have provided sobering and exhaustive stories 
about retaliation and retribution for speaking the truth.

                              {time}  1515

  These accounts have been well documented before the committees of 
this House.
  Michael German was a highly regarded FBI agent working on domestic 
terrorism cases for 16 years before quitting in frustration in 2004. 
His whistleblowing concerned a case that, according to NBC's Dateline, 
``involved a potential nightmare scenario: meetings between a home-
grown militia-type terrorism organization and an Islamic fundamentalist 
group during which they discussed possible cooperation.''
  Mr. German alleges that the FBI fumbled the case and then, after he 
blew the whistle, falsified records in order to cover its mistakes. He 
reported his concerns to his superiors and reportedly faced retaliation 
for doing so, though a Department of Justice Inspector General report 
substantiated many of his claims.
  Mr. Chairman, I reserve the balance of my time.
  Mr. PLATTS. Mr. Chairman, I reserve the balance of my time.
  Mr. BRALEY of Iowa. Mr. Chairman, I yield 3 minutes to the 
distinguished gentleman from Michigan (Mr. Stupak).
  Mr. STUPAK. Mr. Chairman, I thank the gentleman for yielding, 
allowing me an opportunity to speak about this issue here before us.
  I want to thank Mr. Waxman and the committee for reporting an 
excellent bill. The Whistleblower Protection Enhancement Act is a long 
overdue piece of legislation that will go a long way towards correcting 
some of the abuses of the past and updating the whistleblower 
protection system to face the challenges of the present.
  For too long protections passed by Congress for good-faith 
whistleblowers have been chipped away by executive agencies and the 
courts. Court decisions have limited the scope of whistleblower 
protections in a way that betrays the spirit of the original law. This 
bill will clarify the rights of whistleblowers, including the right to 
a prompt court proceeding if their employer challenges their right to 
the protection.
  The bill also protects whistleblowers who work in the national 
security sector or who work for Federal contractors. This is a critical 
provision. Under current law, national security employees have next to 
no protection if they are retaliated against for reporting waste or 
corruption. This is an extremely dangerous situation. If corruption or 
abuse of power is happening in our intelligence and security agencies, 
it should be a concern for all Americans. Employees who report abuses 
in these sectors are doing a service to our national security. I am 
glad to see that this bill would finally protect them.
  I am also pleased to see protections strengthened for Federal 
contractors.

[[Page 6368]]

The growth of contracting under the current administration has been 
astronomical. Under President Bush the Federal Government is now 
spending nearly 40 cents of every discretionary dollar on contracts 
with private companies, a record level. Much of this money has been 
spent without any kind of oversight that would apply within a Federal 
agency.
  Protection for whistleblowers in the contracting sector is key for 
improving congressional oversight and bringing potential waste and 
mismanagement under control.
  Let me be clear. This bill doesn't just protect whistleblowers. It 
protects all Americans.
  As chairman of the Oversight and Investigations Subcommittee of the 
Energy and Commerce Committee, I know that every congressional 
investigation relies on the willingness of individual witnesses to 
speak up about what they have seen. These individuals risk their 
careers and their reputations to expose instances of corruption, waste, 
and abuse within our government. We owe them a debt of gratitude for 
their courage. This bill is an important step towards making sure that 
those individuals have the protection they deserve.
  Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I would just like to again thank my colleagues who have 
worked on this and give special thanks to the staff of the majority and 
minority sides of the Oversight and Government Reform Committee both 
this session and for the last two sessions that I have been involved in 
this issue. We certainly wouldn't be here today without the tremendous 
work of the staff as well as the leadership of then-Chairman Davis, 
now-Ranking Member Davis, and current Chairman Waxman. So I appreciate 
everyone's participation in moving this very important issue forward.
  This truly is about doing right by our courageous Federal employees 
who are willing to come forward when they see wrong and do right on 
behalf of their fellow citizens.
  Mr. Chairman, I yield back the balance of my time.
  Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may 
consume.
  I also want to thank my colleagues for the bipartisan spirit of 
support for this bill.
  I want to just add a few more names to the record, in the remaining 
time that I have available, of courageous whistleblowers. These are not 
hypothetical situations we are talking about.
  One of them, Richard Levernier, was employed at the Department of 
Energy for 22 years and was in charge of testing security at U.S. 
nuclear weapons facilities. Working through normal DOE channels, he 
tried for years to get his superiors to address security weaknesses 
that might allow terrorists to successfully assemble and detonate a 
nuclear device at one of the facilities. But his superiors declined to 
acknowledge that vulnerabilities existed.
  When he faxed two unclassified Inspector General reports to the 
press, DOE suspended his security clearance. At the time he was 2 years 
away from retirement and eligible for a full pension. After he filed a 
lawsuit against DOE for unjust termination, the Office of Special 
Counsel conducted an investigation and concluded that the harassment 
against Levernier constituted a systematically illegal reprisal. The 
OSC also found a substantial likelihood that his underlying charges 
were correct.
  Another brave individual, Russell Tice, a former intelligence agent 
at the National Security Agency, worked for 20 years in special access 
programs known as ``black world programs and operations.'' He had his 
security clearance revoked in May, 2005, after alerting his superiors 
of suspicious activity by a coworker. NSA later dismissed him after he 
raised questions about the legality of some NSA ``black world'' 
programs, including the eavesdropping by the Defense Department and the 
NSA on American citizens. Mr. Tice wanted to talk to Congress about 
what he feels are further abuses by the NSA, but has not been allowed 
to do so.
  Specialist Samuel J. Provance's unit in Iraq was instructed to 
interrogate detainees in a way that he thought was immoral and 
inappropriate, and he told his superiors. Instead of investigating his 
claims, his superiors demoted him.
  And, finally, Lieutenant Colonel Anthony Shaffer was demoted and his 
security clearance stripped after he made protected disclosures to the 
9/11 Commission about Able Danger, a pre-9/11 operation for combating 
al Qaeda, and explained that there were DOD and DIA failures regarding 
9/11.
  This is not a hypothetical problem. Federal whistleblowers are being 
silenced, and instances of waste, fraud, and abuse are not being 
exposed. That is why I call on all my colleagues to support this bill.
  Mr. Chairman, I yield back the balance of my time.
  The Acting CHAIRMAN (Mr. Ross). The gentleman from Pennsylvania (Mr. 
Carney) and the gentleman from Connecticut (Mr. Shays) each will 
control 10 minutes.
  The Chair recognizes the gentleman from Pennsylvania.
  Mr. CARNEY. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I would like to commend Chairman Waxman, Chairman 
Thompson, and others for their work on this long overdue and sorely 
needed bill.
  As chairman of the Homeland Security Subcommittee on Management, 
Investigations, and Oversight, I have a vested interest in H.R. 985's 
passage. I would like to thank Chairman Thompson for allowing me to 
manage our committee's allotted time on the bill.
  This bill extends whistleblower protections to Federal employees who 
work on national security mainly in the intelligence area and workers 
in the Transportation Security Administration, especially screeners, as 
well as to Federal contractors.
  As Chairman Waxman and others have noted, there is a tremendous need 
to extend whistleblower protections for Federal workers or contractors, 
our best sources for shining light on waste, fraud, and abuse.
  This bill treats transportation security officers, or TSOs, sometimes 
called ``screeners,'' the same as all other Department of Homeland 
Security employees by giving them full whistleblower protections, which 
TSOs currently do not have.
  Mr. Chairman, others will tell you that TSOs have whistleblower 
rights. This is debatably true on paper, but it has not been true in 
practice.
  The truth is, TSOs do not enjoy full whistleblower protections. TSOs 
have limited whistleblower protections that come from a memorandum of 
understanding, or MOU, that was entered into when the TSA was still 
part of the Department of Transportation. Under the MOU, TSOs, 
transportation screeners, can only bring a claim to the Office of 
Special Counsel. They do not have a right of appeal or independent 
review by another agency or court.
  In 2004, while reviewing a TSO whistleblower claim in the case of 
Schott v. The Department of Homeland Security, the Merit Systems 
Protection Board, MSPB, ruled that the Homeland Security Act does not 
provide TSOs with the right to MSPB review. Other DHS employees enjoy 
the right to MSPB review.
  Thus, as you can see, Mr. Chairman, the TSOs are currently treated 
differently than other DHS personnel, including their fellow employees 
within TSA.
  This bill allows a whistleblower to go to court if their claim has 
not been acted upon within 6 months. This bill permits the 
whistleblower to bring an appeal on their case to any Federal Court of 
Appeals having proper jurisdiction over the case, not just the Court of 
Appeals for the Federal Circuit, as the law now stands.
  I am also pleased that this bill provides the same rights to the 
Office of Intelligence and Analysis employees at DHS as it does to 
intelligence employees in other agencies. As we know, whistleblowers in 
the intelligence community must be careful when they disclose certain 
information. This bill helps govern how these intelligence-related 
employees bring their claims while also adequately protecting any

[[Page 6369]]

sensitive or classified information that may be involved with their 
claims.
  Mr. Chairman, I want to note that H.R. 1, which passed the House in 
January, tries to fix TSA's poor morale problem by giving TSOs 
whistleblower rights and collective bargaining rights. The collective 
bargaining rights are comparable to other law enforcement officers and 
others within the DHS, such as Border Patrol and CBP officers.
  Mr. Chairman, I am happy to vote for this bill as it not only makes 
America safer and more secure, but it also allows for all employees to 
report waste, fraud, or abuse of our vital and limited government 
resources.
  Mr. Chairman, I reserve the balance of my time.
  Mr. SHAYS. Mr. Chairman, I yield myself such time as I may consume.
  It is a pleasure to share this debate with Congressman Carney and to 
know that former Chairman Davis, now ranking member, and former Ranking 
Member Waxman, now chairman, have worked so closely together. And 
tremendous kudos to Todd Platts for the work that he has done on this 
legislation. This is a bipartisan effort for a very real reason, 
whistleblowers need this protection.
  All Federal employees are ethically bound to expose violations of 
law, corruption, waste, and substantial danger to public health or 
safety. But meeting that obligation to ``blow the whistle'' on 
coworkers and superiors has never ever been easy.

                              {time}  1530

  Breaking bureaucratic ranks to speak unpleasant and unwelcome truths 
takes courage and risks involving the wrath of those with the power and 
motive to shoot the messenger. Yet seldom in our history has the need 
for the whistleblower's unfiltered voice been more urgent, particularly 
in the realms of national security and intelligence. Extraordinary 
powers needed to wage war on our enemies could, if unchecked, inflict 
collateral damage on the very rights and freedoms we fight to protect.
  The use of expansive executive authority demands equally expansive 
scrutiny by Congress and the public. One absolute essential source of 
information to sustain that oversight is whistleblowers.
  But those with whom we trust the Nation's secrets are too often 
treated like second-class citizens when it comes to asserting their 
rights and responsibilities to speak truth to power. Exempted from 
legal protections available to most other Federal employees under the 
Merit System Protection Board, referred to as the MSPB, national 
security whistleblowers must traverse a confusing maze of inconsistent 
regulations and procedures that too often afford them far less process 
than is due.
  The legislation before us today takes the important step of creating 
a procedure for whistleblowers handling sensitive national security 
information, to have their claims investigated and adjudicated on a 
timely basis. These claims would be investigated by the agency 
Inspector General, as they are now, who will keep all classified 
information secure, while providing a fair and independent mechanism 
for investigation and adjudication. Should the Inspector General, and 
we have an Inspector General in each of these agencies, not reach a 
timely decision, or the employees wish to appeal, our legislation 
allows the appropriate Federal Circuit Court to hear the case.
  This new approach will give these employees effective protection, 
while at the same time ensuring sensitive and classified information 
stays secure.
  While I believe an amendment to bring the Department of Homeland 
Security intelligence-related employees under the same provisions as 
employees of intelligence agencies such as the CIA or FBI should have 
been made in order, I am grateful we are finally moving legislation 
that will allow employees who have faced whistleblower retaliation to 
get on with their lives.
  I also believe suspension or revocation of a security clearance has 
the same chilling effect as demotion or firing, but clearance actions 
are virtually unreviewable. Those with whom we trust the Nation's 
secrets should not be second-class citizens when it comes to asserting 
their rights and obligations to speak truth to power. Employees should 
never face termination or harassment for acting courageously to 
identify improprieties in the workplace, especially when their 
observations could help improve safety or eliminate waste, abuse or 
fraud.
  Another important step this legislation takes is to expand 
whistleblower protections to Transportation Security Administration, 
TSA, screeners for the first time, and that is why the Homeland 
Security Committee has been given time for this debate. TSA baggage 
screeners currently do not have whistleblower rights, and this bill 
will extend to screeners the same protections that all other Department 
of Homeland Security employees enjoy.
  With the full whistleblower protections of this bill, TSA workers 
could report violations of law, mismanagement, waste, abuse of 
authority, or dangers to public health and safety, including those 
regarding or relating solely to homeland or national security.
  The bottom line is with more power to the executive branch must come 
more oversight. That is why I strongly support this legislation. I 
think that is why this legislation is strongly supported on both sides 
of the aisle.
  Mr. Chairman, I reserve the balance of my time.
  Mr. CARNEY. Mr. Chairman, I yield 4 minutes to the distinguished 
gentlelady from the State of Texas (Ms. Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished 
gentleman for yielding.
  Mr. Chairman, I thank Mr. Carney for his leadership and work, along 
with, as I mentioned earlier, the chairman of the full Committee on 
Homeland Security, Mr. Thompson, and the ranking member.
  There is no doubt that whistleblower protection is intimately 
interwoven with the work and the issues and the mission and obligations 
of the Homeland Security Department and the Homeland Security 
Committee, both in the House and the other body. We have too often seen 
debacles occurring, tragically, and I believe with a clean 
whistleblower protection, where workers are aware of their rights, we 
are enhancing the security of America.
  This bill in particular responds to the transportation security 
officers, sometimes called screeners. As the chairwoman of the 
Subcommittee on Transportation Security with oversight over our 
transportation security screeners, it is clear that giving them full 
whistleblower protection is crucial, and it is also clear that they do 
not have it now.
  Others will tell you that TSOs have whistleblower protection rights. 
They do not. While this may be true on paper, it is not true in 
practice. The truth is that transportation security officers do not 
enjoy full whistleblower protections. Specifically TSOs have limited 
whistleblower protections that come under a memorandum of 
understanding, an MOU, that was entered into when TSA was still part of 
the Department of Transportation. Under the MOU, TSOs can only bring a 
claim to the Office of Special Counsel. They do not have a right of 
appeal or independent review by another agency or court.
  What that means, Mr. Chairman, is they can be fired. So if a 
transportation security officer sees a breach at one of the thousands 
upon thousands of airports around America, they have no protection to 
protect the traveling public.
  In 2004, while reviewing a TSO whistleblower claim in the case of 
Schott v. The Department of Homeland Security, the Merit System 
Protection Board ruled that the Homeland Security Act does not provide 
TSOs with the right to MSPB review, which review rights are enjoyed by 
other department employees.
  Thus, as you can see, Mr. Chairman, this bill is crucial to the 
transportation security officers, who are treated more differently than 
any other Department of Homeland Security personnel, including their 
fellow employees within TSA. The bill allows a whistleblower to go to 
court if their claim

[[Page 6370]]

has not been acted upon within 6 months.
  There is much that the TSA screener says as he or she watches day 
after day at whether the procedures that we have in place really work. 
In fact, I know there are procedures that go on at the screening site 
where it is crucial that an astute, well-trained TSA employee, 
screener, can in fact be able to enhance the security of America by 
telling the truth.
  I am glad Mr. Carney is chairing our Management Subcommittee, because 
he is going to be talking about training issues. They are crucial. This 
bill permits, Mr. Chairman, as I close, the whistleblower to bring an 
appeal on their case to any Federal Court of Appeals having proper 
jurisdiction over the case, not just a Court of Appeals for the Federal 
Circuit, as the law now stands. That means we have real protection 
against firing and termination just because a transportation security 
officer is doing his or her job.
  I am also pleased this bill provides the same rights to the 
Department's Office of Intelligence and Analysis employees as it does 
to intelligence employees in other agencies. As we know, whistleblowers 
in the Intelligence Committee must be careful when they disclose 
certain information. This bill helps govern how these people bring 
their claims, while also adequately protecting any sensitive or 
classified information that may be involved with such claims.
  Mr. Chairman, I want to note that H.R. 1, which passed the House in 
January, tries to fix TSA's poor morale problem by giving TSO 
whistleblower rights and collective bargaining rights. These collective 
bargaining rights are comparable to other law enforcement officers and 
others within the Department, such as Border Patrol and others.
  I ask my colleagues to support this. This is a new day, a fresh day 
for homeland security in America, giving these officers the right to 
tell the truth and do their job and protect America.
   Mr. Chairman, I rise today in strong support of H.R. 985, the 
``Whistleblower Protection Enhancement Act of 2007,'' which extends 
whistleblower protections to federal employees and contractors working 
in the area of national security and intelligence, including screeners 
at the Transportation Security Administration (TSA).
   Mr. Chairman, I have long been a strong proponent of whistleblower 
protection. As a Member of Congress from Houston, home of NASA's 
Johnson Space Center, I have long been involved in developing 
procedures and protections to ensure that concerns affecting the public 
health and safety are made known and addressed in an atmosphere free of 
intimidation, threats, harassment, and reprisal.
  For example, during a hearing held a few years ago by the Science 
Committee of which I was a member, Admiral Gehman and representatives 
of the Columbia Accident Investigation Board explained how fear of 
retaliation by management led some engineers to withhold their concerns 
about the safety and well-being of NASA missions and crew. Reports 
received after the tragic Colombia space shuttle accident indicated the 
accident may have been avoided had there been in place a process that 
would foster an environment encouraging employees and contractors to 
come forward with information that could avert future threats to the 
safety of astronauts, mission specialists, and other workers.
  My legislation created a NASA Safety Reporting Board that would 
rapidly screen such disclosures and either report them directly to the 
Administrator, or reject them as non-eligible--perhaps with a 
suggestion to seek redress through internal means, e.g., union and OSHA 
representatives, and agency ombudsmen. Afterward, the Board would be 
tasked with keeping a registry of reporting workers and with dispute 
resolution in the event that the worker alleges retaliation by 
management. Coupling the reporting and anti-retaliation functions in 
one board would limit the scope of the board to truly vital issues, and 
make workers feel confident that their concerns will not be lost or 
buried in the bureaucracy of standard whistleblower or OSHA claims. The 
Safety Reporting Board would be comprised of both NASA managers and 
non-managers, with diverse expertise, representing multiple Centers, 
and include an advocate for workers.
  Because we saw the lack of whistle blower protection for NASA 
employers as a safety threat to the nation's commitment to space 
exploration and travel, we took action to remove this impediment. The 
effort has been successful and we are reaping the benefits to this day.
   Mr. Chairman, we need to extend the benefits of whistleblower 
protection from NASA to other vital Government agencies and functions. 
There is a tremendous need to protect our best sources for identifying 
waste fraud and abuse--Federal workers and contractors. H.R. 985 treats 
Transportation Security Officers (TSOs), sometimes called 
``screeners,'' the same as all other Department employees by giving 
them full whistleblower protections, which TSOs currently do not have.
   Mr. Chairman, contrary to assertions by opponents of the bill, TSOs 
do not have any meaningful whistleblower rights. The truth is TSOs do 
not enjoy full whistleblower protections. Specifically, TSOs enjoy 
little more than minimal whistleblower protections deriving from a 
Memorandum of Understanding (MOU) entered into when TSA was still part 
of the Department of Transportation.
  Under this MOU, screeners can only bring a claim to the Office of 
Special Counsel; they do not have a right of appeal or to seek 
independent review by another agency or court.
   Mr. Chairman, in 2004, the Merit Systems Protection Board (MSPB) 
ruled in Schott v. Department of Homeland Security, that the Homeland 
Security Act does not provide TSA screeners the right to bring a claim 
before the MSPB, even though such rights were enjoyed by all other 
Department employees.
  Thus, as you can see Mr. Chairman, TSOs are treated differently than 
other Department of Homeland Security personnel--including fellow 
employees within TSA.
  This bill allows a whistleblower to seek relief in Federal circuit 
court, if his or her claim has not been acted upon within 6 months. In 
addition, H.R. 985 permits the whistleblower to bring an appeal on 
their case to any Federal circuit court of appeals having in personam 
jurisdiction, not just the Court of Appeals for the Federal Circuit as 
is the case under current law.
  I am also pleased that this bill provides the same rights to the 
Department's Office of Intelligence and Analysis employees as it does 
to intelligence employees in other agencies. I do not have to tell you, 
Mr. Chairman, that whistleblowers in the intelligence community must be 
careful when they disclose certain information.
  H.R. 985 set forth procedures which enable whistleblowers to assert 
their claims, while at the same time adequately protecting any 
sensitive or classified information involved with such claims.
   Mr. Chairman, I note that H.R. 1, which passed the House in January, 
seeks to improve the poor morale problem at TSA by giving TSO employees 
whistleblower and collective bargaining rights. These collective 
bargaining rights are comparable to other law enforcement officers and 
others within the Department, such as the Border Patrol, Customs and 
Border Protection Officers.
   Mr. Chairman, as a senior member of the Homeland Security Committee 
and chair of the Subcommittee on Transportation Security and 
Infrastructure Protection, I am proud to support H.R. 985. This bill 
will help the Federal Government keep America safer and more secure by 
encouraging and protecting employees who come forward to report waste, 
fraud, wrongdoing, or abuse of vital and limited Government resources. 
I urge all members to join me in voting for this important legislation.
  Mr. SHAYS. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, when you give the administration of any party the kind 
of powers we need to give an administration today, you have to have a 
strong whistleblower statute, a strong civil liberties board, and 
aggressive congressional oversight. There are two inconvenient truths 
we need to deal with, in society today. One is what Al Gore talks 
about: the environment, and national security issues related to the 
environment.
  Another inconvenient truth is what the 9/11 Commission points out to 
us, that we are confronting deadly radical Islamist terrorism. And that 
requires stronger statutes to deal with it.
  We had an attempt in the late eighties by the first President Bush to 
have a workable whistleblower statute. That statute was eroded by the 
Federal Court in D.C. We saw the Clinton administration try to 
strengthen it in 1994, and again it was weakened by the courts. This is 
another attempt to strengthen this statute.
  We have a weakness in our whistleblower statute that we must address. 
And it is being addressed on a bipartisan basis.
  We have a Merit System Protection Board that deals with everyone 
outside

[[Page 6371]]

of the intelligence community, but it doesn't render decisions soon 
enough. We are requiring that decisions be rendered within 180 days. If 
not, a whistleblower can go to court. And we now allow whistleblowers 
to appeal decisions they disagree with.
  But we have had a more serious problem. This is the area of concern 
relating to the intelligence community. Whistleblowers have had to go 
to their own individual Inspector Generals. The Inspector Generals 
follow different practices. We are now making sure those practices 
conform to the Merit System Protection Board practices.
  The biggest challenge was when you take away someone's security 
clearance, it is like telling a bus driver you don't have a license to 
drive a bus. You make that whistleblower meaningless to the agency, and 
it is a huge disincentive to speak out.
  We are not saying that can't be taken away in this legislation. We 
are saying it needs to be studied by the GAO. But what we are also 
doing is giving the employee the right to go to court within 180 days 
if a decision isn't rendered, and to have that same ability to make 
sure their case is heard if they disagree with the decision.
  I can't say how strongly enough I support this legislation. This 
legislation, which passed the committee last year has been improved 
this year. But, again, I want to say, Mr. Platts, you deserve a 
tremendous amount of credit for what you have done and I congratulate 
my colleagues on the other side of the aisle for bringing this 
legislation up so quickly.
  Mr. Chairman, I reserve the balance of my time.
  Mr. PLATTS. I yield myself such time as I may consume.
  Mr. Chairman, I do urge my colleagues to vote for H.R. 985. It is 
important for any number of reasons. The bipartisan nature of this bill 
itself is I think in many ways reason enough. We have reached across 
the aisle in a bipartisan fashion to make sure that we do what is right 
for the American public, for the traveling public and for the safety of 
all of us.
  Mr. Chairman, as an intelligence officer myself, I know full well 
from firsthand experience the importance of having lines of 
communication open so the right information is getting to 
decisionmakers, and that right information can often include telling us 
what is not going right, what has gone wrong and how we can fix it.

                              {time}  1545

  It is vital that people have the opportunity and avenues and conduits 
through which they can give good information, information when things 
are going well and information when things are not going well. All of 
this ultimately makes us a safer, stronger Nation. That is why I urge 
all of my colleagues to vote for H.R. 985.
  Mrs. LOWEY. Mr. Chairman, I want to thank Chairman Waxman and Ranking 
Member Davis of the Oversight and Government Reform Committee for 
bringing this bill to the floor.
  I rise in support of this bill and in particular, the provisions 
extending whistleblower protections to federal employees who work on 
national security matters, including those employed by the 
Transportation Security Administration.
  The simple fact is that TSA screeners are treated differently than 
other Department of Homeland Security personnel. That is why I authored 
the provisions in the Implementing the 9/11 Commission Recommendations 
Act of 2007, which the House passed in January, that would give TSOs 
whistleblower and collective bargaining rights.
  Astonishingly, the President has threatened to veto the 9/11 bill 
over this provision.
  TSA screeners are frontline security workers who perform a crucial 
and often grueling job that requires training, experience, and 
patience. We need workers who have mastered the job and providing 
whistleblower protections to TSA employees is part of a broader 
strategy to ensure that these individuals will make a career of 
protecting our Nation.
  I intend to vote for this bill not only to strengthen protections for 
whistleblowers and restore accountability to the federal government, 
but to advance this critical TSA provision through the legislative 
process and show the President that we are serious about giving our 
frontline security workers the same rights as other Department of 
Homeland Security personnel.
  I urge my colleagues to do the same.
  Mr. THOMPSON of Mississippi. Mr. Chairman, I applaud Chairman Waxman, 
Ranking Member Davis, and others for their work on this badly needed 
bill.
  This bill extends whistleblower protections to Federal employees who 
work on national security, mainly in the intelligence area, workers in 
the Transportation Security Administration, especially screeners, and 
Federal contractors, amongst others.
  As Chairman Waxman correctly identified, there is a tremendous need 
to protect Federal workers and contractors who are our best sources of 
identifying waste fraud, abuse or security problems.
  This bill treats Transportation Security Officers (TSOs) the same as 
all other Department employees by giving them full whistleblower 
protections, which TSOs currently do not have.
   Mr. Chairman, others will tell you that TSOs have adequate 
whistleblower rights. While this is debatably true on paper, it is not 
true in practice.
  The truth is TSOs do not enjoy full whistleblower protections. They 
have extremely limited whistleblower protections granted by a 
Memorandum of Understanding (MOU) that was entered into when TSA was 
part of the Department of Transportation.
  In fact, while reviewing a TSO whistleblower claim in 2004, the Merit 
Systems Protection Board (MSPB) ruled that the Homeland Security Act 
does not provide TSO whistleblowers with a right to MSPB review.
  Compared to other Department employees who do enjoy the right to MSPB 
review, TSOs are treated differently.
  Under the MOU, TSOs can only bring a claim to the Office of Special 
Counsel, but TSOs have no right of outside appeal to either the MSPB or 
any other independent agency or court, like all other the Department 
employees can.
  This bill remedies this situation by giving the TSOs full 
whistleblower rights, including the right to independent outside 
review.
  Besides independent outside review, this bill also allows a 
whistleblower to go to court if their claim has not been acted on 
within 6 months of filing.
  This bill permits the whistleblower to bring an appeal on their case 
to any federal court of appeals having proper jurisdiction over the 
case.
  I am also pleased that this bill provides the same rights to the 
Department's Office of Intelligence and Analysis employees as it does 
to intelligence employees in other agencies.
  As we know, whistleblowers in the intelligence community must be 
careful when they disclose certain information.
  This bill helps govern how these people can bring their claims, but 
it also adequately protects any sensitive or classified information 
that may be involved.
  Mr. Chairman, I want to note that H.R. 1, which passed the House in 
January, has some similar effects as H.R. 985, mainly that it provides 
whistleblower protections to TSOs.
  H.R. 1 also fixes the poor morale problems by allowing collective 
bargaining rights for TSOs, similar to other law enforcement officers 
and others within the Department, such as the Border Patrol and Customs 
and Border Protection Officers.
  Nonetheless, I am happy to vote for H.R. 985 today as it not only 
makes America safer and more secure, but it also allows for all 
employees to report waste, fraud, or abuse of vital and limited 
government resources.
  I urge my colleagues to support the bill.
  Mrs. MALONEY of New York. Mr. Chairman, as a cosponsor of this 
legislation, I rise in strong support of H.R. 985, the Whistleblower 
Protection Act.
  I think one thing we can all agree on is that the current system is 
broken and whistleblowers are simply not being protected.
  Too often our system retaliates against whistleblowers rather than 
thanking them for standing up for what is right.
  The Oversight and Government Reform Committee has heard from many of 
them, including Sibel Edmonds, the former FBI Translator who was fired 
for raising concerns about the way the FBI was translating important 
information about our security.
  Her reward for blowing the whistle included having her security 
clearance stripped, being fired from her job and being forced to endure 
a years-long court battle that prevented her from any sort of normal 
life.
  Things were so bad with her case that when she testified before the 
committee she literally could not tell us anything about her life--
where she was born or which languages she speaks.
  Sadly, she is not alone.
  The Whistleblower Protection Act (WPA) has been weakened by court 
cases in recent years and even the weak protections offered under the 
WPA do not apply to national security whistleblowers or contractors at 
those agencies.

[[Page 6372]]

  The Oversight Committee repeatedly has heard from people who have had 
their security clearances revoked after blowing the whistle.
  We have been told that wrongdoers have been allowed to continue their 
actions while the whistleblower has been the one made to suffer.
  In the 109th Congress I was joined by my colleague Representative 
Diane Watson in offering an amendment during the Committee's 
consideration of the Federal Employee Protection of Disclosures Act 
that would have extended whistleblower protections to employees in 
national security and the intelligence community.
  I am thrilled that this legislation will extend these important 
protections to employees of intelligence agencies and to federal 
contractors.
  Passage of this bill is long overdue.
  I urge my colleagues to vote for this legislation.
  Mr. DAVIS of Illinois. Mr. Chairman, I am pleased to have joined 
Chairman Waxman and Ranking Member Davis in sponsoring the 
Whistleblower Protection Enhancement Act of 2007.
  The Whistleblower Protection Act of 2007 strengthens current law to 
protect whistleblowers in Federal agencies. Since 1994, the 
Whistleblower Protection Act has been gutted by judicial activism. The 
legislation would grant whistleblowers the right to challenge reprisals 
in Federal district court and clarifies that ``any'' protected 
disclosure applies to all lawful communication of misconduct. It would 
extend whistleblower protection rights to whistleblowers in the 
intelligence community and would extend these rights to federally 
funded contractors.
  Extending whistleblower protection to the intelligence community is a 
critical aspect of this legislation. Most national security 
whistleblowers are not protected from retaliation by law. The National 
Security Whistleblower Coalition reports that the median number of 
years of government service for national security whistleblowers is 22 
years. These employees are experienced and dedicated and their careers 
should not be put at risk when they report waste, fraud, and abuse. 
Protecting national security whistleblowers from retaliation is in the 
best interest of our national security.
  I do have concerns about one group of workers that do not have 
whistleblower protection--postal workers. The Postal Service is not, by 
law, subject to the Whistleblower Protection Act--WPA. The Service's 
Employee and Labor Relations Manual--ELM--contains provisions adopted 
by the service that replicate the more significant protections found in 
the WPA for victims of unlawful reprisal. The ELM provisions, however, 
only concern ``corrective actions''; they do not mandate discipline for 
managers who retaliate against whistleblowers.
  As chairman of the Subcommittee on Federal Workforce, Postal Service, 
and the District of Columbia, I will hold a hearing to examine the need 
to extend full whistleblower protections to postal employees.
  Chairman Waxman, thank you for your advocacy in this area.
  Mr. PLATTS. Mr. Chairman, I yield back the balance of my time.
  Mr. SHAYS. Mr. Chairman, I thank my colleague for his presentation, 
and I yield back the balance of my time.
  The Acting CHAIRMAN. All time for general debate has expired.
  Pursuant to the rule, an amendment in the nature of a substitute 
consisting of the text of the bill, modified by the amendments printed 
in the bill, is adopted. The bill, as amended, shall be considered as 
an original bill for the purpose of further amendment under the 5-
minute rule and shall be considered read.
  The text of the bill, as amended, is as follows:

                                H.R. 985

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the 
     ``Whistleblower Protection Enhancement Act of 2007''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Clarification of disclosures covered.
Sec. 3. Covered disclosures.
Sec. 4. Rebuttable presumption.
Sec. 5. Nondisclosure policies, forms, and agreements.
Sec. 6. Exclusion of agencies by the President.
Sec. 7. Disciplinary action.
Sec. 8. Government Accountability Office study on revocation of 
              security clearances.
Sec. 9. Alternative recourse.
Sec. 10. National security whistleblower rights.
Sec. 11. Enhancement of contractor employee whistleblower protections.
Sec. 12. Prohibited personnel practices affecting the Transportation 
              Security Administration.
Sec. 13. Clarification of whistleblower rights relating to scientific 
              and other research.
Sec. 14. Effective date.

     SEC. 2. CLARIFICATION OF DISCLOSURES COVERED.

       Section 2302(b)(8) of title 5, United States Code, is 
     amended--
       (1) in subparagraph (A)--
       (A) by striking ``which the employee or applicant 
     reasonably believes evidences'' and inserting ``, without 
     restriction as to time, place, form, motive, context, or 
     prior disclosure made to any person by an employee or 
     applicant, including a disclosure made in the ordinary course 
     of an employee's duties, that the employee or applicant 
     reasonably believes is evidence of''; and
       (B) in clause (i), by striking ``a violation'' and 
     inserting ``any violation''; and
       (2) in subparagraph (B)--
       (A) by striking ``which the employee or applicant 
     reasonably believes evidences'' and inserting ``, without 
     restriction as to time, place, form, motive, context, or 
     prior disclosure made to any person by an employee or 
     applicant, including a disclosure made in the ordinary course 
     of an employee's duties, of information that the employee or 
     applicant reasonably believes is evidence of''; and
       (B) in clause (i), by striking ``a violation'' and 
     inserting ``any violation (other than a violation of this 
     section)''.

     SEC. 3. COVERED DISCLOSURES.

       Section 2302(a)(2) of title 5, United States Code, is 
     amended--
       (1) in subparagraph (B)(ii), by striking ``and'' at the 
     end;
       (2) in subparagraph (C)(iii), by striking the period at the 
     end and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(D) `disclosure' means a formal or informal 
     communication, but does not include a communication 
     concerning policy decisions that lawfully exercise 
     discretionary authority unless the [employee] employee or 
     applicant providing the disclosure reasonably believes that 
     the disclosure evidences--
       ``(i) any violation of any law, rule, or regulation; or
       ``(ii) gross mismanagement, a gross waste of funds, an 
     abuse of authority, or a substantial and specific danger to 
     public health or safety.''.

     SEC. 4. REBUTTABLE PRESUMPTION.

       Section 2302(b) of title 5, United States Code, is amended 
     by adding at the end the following: ``For purposes of 
     paragraph (8), any presumption relating to the performance of 
     a duty by an employee who has authority to take, direct 
     others to take, recommend, or approve any personnel action 
     may be rebutted by substantial evidence. For purposes of 
     paragraph (8), a determination as to whether an employee or 
     applicant reasonably believes that such employee or applicant 
     has disclosed information that evidences any violation of 
     law, rule, regulation, gross mismanagement, a gross waste of 
     funds, an abuse of authority, or a substantial and specific 
     danger to public health or safety shall be made by 
     determining whether a disinterested observer with knowledge 
     of the essential facts known to or readily ascertainable by 
     the employee or applicant could reasonably conclude that the 
     actions of the Government evidence such violations, 
     mismanagement, waste, abuse, or danger.''.

     SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.

       (a) Personnel Action.--Section 2302(a)(2)(A) of title 5, 
     United States Code, is amended--
       (1) in clause (x), by striking ``and'' at the end;
       (2) by redesignating clause (xi) as clause (xii); and
       (3) by inserting after clause (x) the following:
       ``(xi) the implementation or enforcement of any 
     nondisclosure policy, form, or agreement; and''.
       (b) Prohibited Personnel Practice.--Section 2302(b) of 
     title 5, United States Code, is amended--
       (1) in paragraph (11), by striking ``or'' at the end;
       (2) by redesignating paragraph (12) as paragraph (14); and
       (3) by inserting after paragraph (11) the following:
       ``(12) implement or enforce any nondisclosure policy, form, 
     or agreement, if such policy, form, or agreement does not 
     contain the following statement: `These provisions are 
     consistent with and do not supersede, conflict with, or 
     otherwise alter the employee obligations, rights, or 
     liabilities created by Executive Order No. 12958; section 
     7211 of title 5, United States Code (governing disclosures to 
     Congress); section 1034 of title 10, United States Code 
     (governing disclosures to Congress by members of the 
     military); section 2302(b)(8) of title 5, United States Code 
     (governing disclosures of illegality, waste, fraud, abuse, or 
     public health or safety threats); the Intelligence Identities 
     Protection Act of 1982 (50 U.S.C. 421 and following) 
     (governing disclosures that could expose confidential 
     Government agents); and the statutes which protect against 
     disclosures that

[[Page 6373]]

     could compromise national security, including sections 641, 
     793, 794, 798, and 952 of title 18, United States Code, and 
     section 4(b) of the Subversive Activities Control Act of 1950 
     (50 U.S.C. 783(b)). The definitions, requirements, 
     obligations, rights, sanctions, and liabilities created by 
     such Executive order and such statutory provisions are 
     incorporated into this agreement and are controlling.';
       ``(13) conduct, or cause to be conducted, an investigation, 
     other than any ministerial or nondiscretionary factfinding 
     activities necessary for the agency to perform its mission, 
     of an employee or applicant for employment because of any 
     activity protected under this section; or''.

     SEC. 6. EXCLUSION OF AGENCIES BY THE PRESIDENT.

       Section 2302(a)(2)(C) of title 5, United States Code, is 
     amended by striking clause (ii) and inserting the following:
       ``(ii)(I) the Federal Bureau of Investigation, the Central 
     Intelligence Agency, the Defense Intelligence Agency, the 
     National Geospatial-Intelligence Agency, or the National 
     Security Agency; or
       ``(II) as determined by the President, any Executive agency 
     or unit thereof the principal function of which is the 
     conduct of foreign intelligence or counterintelligence 
     activities, if the determination (as that determination 
     relates to a personnel action) is made before that personnel 
     action; or''.

     SEC. 7. DISCIPLINARY ACTION.

       Section 1215(a)(3) of title 5, United States Code, is 
     amended to read as follows:
       ``(3)(A) A final order of the Board may impose--
       ``(i) disciplinary action consisting of removal, reduction 
     in grade, debarment from Federal employment for a period not 
     to exceed 5 years, suspension, or reprimand;
       ``(ii) an assessment of a civil penalty not to exceed 
     $1,000; or
       ``(iii) any combination of disciplinary actions described 
     under clause (i) and an assessment described under clause 
     (ii).
       ``(B) In any case in which the Board finds that an employee 
     has committed a prohibited personnel practice under paragraph 
     (8) or (9) of section 2302(b), the Board shall impose 
     disciplinary action if the Board finds that the activity 
     protected under such paragraph (8) or (9) (as the case may 
     be) was the primary motivating factor, unless that employee 
     demonstrates, by a preponderance of the evidence, that the 
     employee would have taken, failed to take, or threatened to 
     take or fail to take the same personnel action, in the 
     absence of such protected activity.''.

     SEC. 8. GOVERNMENT ACCOUNTABILITY OFFICE STUDY ON REVOCATION 
                   OF SECURITY CLEARANCES.

       (a) Requirement.--The Comptroller General shall conduct a 
     study of security clearance revocations, taking effect after 
     1996, with respect to personnel that filed claims under 
     chapter 12 of title 5, United States Code, in connection 
     therewith. The study shall consist of an examination of the 
     number of such clearances revoked, the number restored, and 
     the relationship, if any, between the resolution of claims 
     filed under such chapter and the restoration of such 
     clearances.
       (b) Report.--Not later than 270 days after the date of the 
     enactment of this Act, the Comptroller General shall submit 
     to the Committee on Oversight and Government Reform of the 
     House of Representatives and the Committee on Homeland 
     Security and Governmental Affairs of the Senate a report on 
     the results of the study required by subsection (a).

     SEC. 9. ALTERNATIVE RECOURSE.

       (a) In General.--Section 1221 of title 5, United States 
     Code, is amended by adding at the end the following:
       ``(k)(1) If, in the case of an employee, former employee, 
     or applicant for employment who seeks corrective action (or 
     on behalf of whom corrective action is sought) from the Merit 
     Systems Protection Board based on an alleged prohibited 
     personnel practice described in section 2302(b)(8), no final 
     order or decision is issued by the Board within 180 days 
     after the date on which a request for such corrective action 
     has been duly submitted (or, in the event that a final order 
     or decision is issued by the Board, whether within that 180-
     day period or thereafter, then, within 90 days after such 
     final order or decision is issued, and so long as such 
     employee, former employee, or applicant has not filed a 
     petition for judicial review of such order or decision under 
     subsection (h))--
       ``(A) such employee, former employee, or applicant may, 
     after providing written notice to the Board, bring an action 
     at law or equity for de novo review in the appropriate United 
     States district court, which shall have jurisdiction over 
     such action without regard to the amount in [controversy;] 
     controversy, and which action shall, at the request of either 
     party to such action, be tried by the court with a jury; and
       ``(B) in any such action, the court--
       ``(i) shall apply the standards set forth in subsection 
     (e); and
       ``(ii) may award any relief which the court considers 
     appropriate, including any relief described in subsection 
     (g).

     An appeal from a final decision of a district court in an 
     action under this paragraph may, at the election of the 
     appellant, be taken to the Court of Appeals for the Federal 
     Circuit (which shall have jurisdiction of such appeal), in 
     lieu of the United States court of appeals for the circuit 
     embracing the district in which the action was brought.
       ``(2) For purposes of this subsection, the term 
     `appropriate United States district court', as used with 
     respect to an alleged prohibited personnel practice, means 
     the United States district court for the district in which 
     the prohibited personnel practice is alleged to have been 
     committed, the judicial district in which the employment 
     records relevant to such practice are maintained and 
     administered, or the judicial district in which resides the 
     employee, former employee, or applicant for employment 
     allegedly affected by such practice.
       ``(3) This subsection applies with respect to any appeal, 
     petition, or other request for corrective action duly 
     submitted to the Board, whether pursuant to section 
     1214(b)(2), the preceding provisions of this section, section 
     7513(d), or any otherwise applicable provisions of law, rule, 
     or regulation.''.
       (b) Review of MSPB Decisions.--Section 7703(b) of such 
     title 5 is amended--
       (1) in the first sentence of paragraph (1), by striking 
     ``the United States Court of Appeals for the Federal 
     Circuit'' and inserting ``the appropriate United States court 
     of appeals''; and
       (2) by adding at the end the following:
       ``(3) For purposes of the first sentence of paragraph (1), 
     the term `appropriate United States court of appeals' means 
     the United States Court of Appeals for the Federal [Circuit.] 
     Circuit, except that in the case of a prohibited personnel 
     practice described in section 2302(b)(8) (other than a case 
     that, disregarding this paragraph, would otherwise be subject 
     to paragraph (2)), such term means the United States Court of 
     Appeals for the Federal Circuit and any United States court 
     of appeals having jurisdiction over appeals from any United 
     States district court which, under section 1221(k)(2), would 
     be an appropriate United States district court for purposes 
     of such prohibited personnel practice.''.
       (c) Compensatory Damages.--Section 1221(g)(1)(A)(ii) of 
     such title 5 is amended by striking all after ``travel 
     expenses,'' and inserting ``any other reasonable and 
     foreseeable consequential damages, and compensatory damages 
     (including attorney's fees, interest, reasonable expert 
     witness fees, and costs).''.
       [(c)] (d) Conforming Amendments.--
       (1) Section 1221(h) of such title 5 is amended by adding at 
     the end the following:
       ``(3) Judicial review under this subsection shall not be 
     available with respect to any decision or order as to which 
     the employee, former employee, or applicant has filed a 
     petition for judicial review under subsection (k).''.
       (2) Section 7703(c) of such title 5 is amended by striking 
     ``court.'' and inserting ``court, and in the case of a 
     prohibited personnel practice described in section 2302(b)(8) 
     brought under any provision of law, rule, or regulation 
     described in section 1221(k)(3), the employee or applicant 
     shall have the right to de novo review in accordance with 
     section 1221(k).''.

     SEC. 10. NATIONAL SECURITY WHISTLEBLOWER RIGHTS.

       (a) In General.--Chapter 23 of title 5, United States Code, 
     is amended by inserting after section 2303 the following:

     ``Sec. 2303a. National security whistleblower rights

       ``(a) Prohibition of Reprisals.--
       ``(1) In general.--In addition to any rights provided in 
     section 2303 of this title, title VII of Public Law 105-272, 
     or any other provision of law, an employee, former employee, 
     or applicant for employment in a covered agency may not be 
     discharged, demoted, or otherwise discriminated against 
     (including by denying, suspending, or revoking a security 
     clearance, or by otherwise restricting access to classified 
     or sensitive information) as a reprisal for making a 
     disclosure described in paragraph (2).
       ``(2) Disclosures described.--A disclosure described in 
     this paragraph is any disclosure of covered information which 
     is made--
       ``(A) by an employee, former employee, or applicant for 
     employment in a covered agency (without restriction as to 
     time, place, form, motive, context, or prior disclosure made 
     to any person by an employee, former employee, or applicant, 
     including a disclosure made in the course of an employee's 
     duties); and
       ``(B) to an authorized Member of Congress, an authorized 
     official of an Executive agency, an authorized official of 
     the Department of Justice, or the Inspector General of the 
     covered agency in which such employee is employed, such 
     former employee was employed, or such applicant seeks 
     employment.
       ``(b) Investigation of Complaints.--An employee, former 
     employee, or applicant for employment in a covered agency who 
     believes that such employee, former employee, or applicant 
     has been subjected to a reprisal prohibited by subsection (a) 
     may submit a complaint to the Inspector General and the head 
     of the covered agency. The Inspector General shall 
     investigate the complaint and, unless the Inspector General 
     determines that the complaint is frivolous, submit a report 
     of the findings of the investigation within 120 days to the 
     employee, former employee, or

[[Page 6374]]

     applicant and to the head of the covered agency.
       ``(c) Remedy.--
       ``(1) Within 180 days of the filing of the complaint, the 
     head of the covered agency shall, taking into consideration 
     the report of the Inspector General under subsection (b) (if 
     any), determine whether the employee, former employee, or 
     applicant has been subjected to a reprisal prohibited by 
     subsection (a), and shall either issue an order denying 
     relief or shall implement corrective action to return the 
     employee, former employee, or applicant, as nearly as 
     possible, to the position he would have held had the reprisal 
     not occurred, including voiding any directive or order 
     denying, suspending, or revoking a security clearance or 
     otherwise restricting access to classified or sensitive 
     information that constituted a reprisal, as well as providing 
     back pay and related benefits, medical costs incurred, travel 
     expenses, [and any other reasonable and foreseeable 
     consequential damages including attorney's fees and costs.] 
     any other reasonable and foreseeable consequential damages, 
     and compensatory damages (including attorney's fees, 
     interest, reasonable expert witness fees, and costs). If the 
     head of the covered agency issues an order denying relief, he 
     shall issue a report to the employee, former employee, or 
     applicant detailing the reasons for the denial.
       ``(2)(A) If the head of the covered agency, in the process 
     of implementing corrective action under paragraph (1), voids 
     a directive or order denying, suspending, or revoking a 
     security clearance or otherwise restricting access to 
     classified or sensitive information that constituted a 
     reprisal, the head of the covered agency may re-initiate 
     procedures to issue a directive or order denying, suspending, 
     or revoking a security clearance or otherwise restricting 
     access to classified or sensitive information only if those 
     re-initiated procedures are based exclusively on national 
     security concerns and are unrelated to the actions 
     constituting the original reprisal.
       ``(B) In any case in which the head of a covered agency re-
     initiates procedures under subparagraph (A), the head of the 
     covered agency shall issue an unclassified report to its 
     Inspector General and to authorized Members of Congress (with 
     a classified annex, if necessary), detailing the 
     circumstances of the agency's re-initiated procedures and 
     describing the manner in which those procedures are based 
     exclusively on national security concerns and are unrelated 
     to the actions constituting the original reprisal. The head 
     of the covered agency shall also provide periodic updates to 
     the Inspector General and authorized Members of Congress 
     detailing any significant actions taken as a result of those 
     procedures, and shall respond promptly to inquiries from 
     authorized Members of Congress regarding the status of those 
     procedures.
       ``(3) If the head of the covered agency has not made a 
     determination under paragraph (1) within 180 days of the 
     filing of the complaint (or he has issued an order denying 
     relief, in whole or in part, whether within that 180-day 
     period or thereafter, then, within 90 days after such order 
     is issued), the employee, former employee, or applicant for 
     employment may bring an action at law or equity for de novo 
     review to seek any corrective action described in paragraph 
     (1) in the appropriate United States district court (as 
     defined by section 1221(k)(2)), which shall have jurisdiction 
     over such action without regard to the amount in 
     [controversy.] controversy, and which action shall, at the 
     request of either party to such action, be tried by the court 
     with a jury. [A petition to review a final decision under 
     this paragraph shall be filed in the United States Court of 
     Appeals for the Federal Circuit.] An appeal from a final 
     decision of a district court in an action under this 
     paragraph may, at the election of the appellant, be taken to 
     the Court of Appeals for the Federal Circuit (which shall 
     have jurisdiction of such appeal), in lieu of the United 
     States court of appeals for the circuit embracing the 
     district in which the action was brought.
       ``(4) An employee, former employee, or applicant adversely 
     affected or aggrieved by an order issued under paragraph (1), 
     or who seeks review of any corrective action determined under 
     paragraph (1), may obtain judicial review of such order or 
     determination in the United States Court of Appeals for the 
     Federal [Circuit.] Circuit or any United States court of 
     appeals having jurisdiction over appeals from any United 
     States district court which, under section 1221(k)(2), would 
     be an appropriate United States district court. No petition 
     seeking such review may be filed more than 60 days after 
     issuance of the order or the determination to implement 
     corrective action by the head of the agency. Review shall 
     conform to chapter 7.
       ``(5)(A) If, in any action for damages or relief under 
     paragraph (3) or (4), an Executive agency moves to withhold 
     information from discovery based on a claim that disclosure 
     would be inimical to national security by asserting the 
     privilege commonly referred to as the `state secrets 
     privilege', and if the assertion of such privilege prevents 
     the [plaintiff] employee, former employee, or applicant from 
     establishing an element in support of the [plaintiff's] 
     employee's, former employee's, or applicant's claim, the 
     court shall resolve the disputed issue of fact or law in 
     favor of the [plaintiff] employee, former employee, or 
     applicant, provided that an Inspector General investigation 
     under subsection (b) has resulted in substantial confirmation 
     of that element, or those elements, of the [plaintiff's] 
     employee's, former employee's, or applicant's claim.
       ``(B) In any case in which an Executive agency asserts the 
     privilege commonly referred to as the `state secrets 
     privilege', whether or not an Inspector General has conducted 
     an investigation under subsection (b), the head of that 
     agency shall, at the same time it asserts the privilege, 
     issue a report to authorized Members of Congress, accompanied 
     by a classified annex if necessary, describing the reasons 
     for the assertion, explaining why the court hearing the 
     matter does not have the ability to maintain the protection 
     of classified information related to the assertion, detailing 
     the steps the agency has taken to arrive at a mutually 
     agreeable settlement with the employee, former employee, or 
     applicant for employment, setting forth the date on which the 
     classified information at issue will be declassified, and 
     providing all relevant information about the underlying 
     substantive matter.
       ``(d) Applicability to Non-Covered Agencies.--An employee, 
     former employee, or applicant for employment in an Executive 
     agency (or element or unit thereof) that is not a covered 
     agency shall, for purposes of any disclosure of covered 
     information (as described in subsection (a)(2)) which 
     consists in whole or in part of classified or sensitive 
     information, be entitled to the same protections, rights, and 
     remedies under this section as if that Executive agency (or 
     element or unit thereof) were a covered agency.
       ``(e) Construction.--Nothing in this section may be 
     construed--
       ``(1) to authorize the discharge of, demotion of, or 
     discrimination against an [employee] employee, former 
     employee, or applicant for employment for a disclosure other 
     than a disclosure protected by subsection (a) or (d) of this 
     section or to modify or derogate from a right or remedy 
     otherwise available to an employee, former employee, or 
     applicant for employment; or
       ``(2) to preempt, modify, limit, or derogate any rights or 
     remedies available to an employee, former employee, or 
     applicant for employment under any other provision of law, 
     rule, or regulation (including the Lloyd-La Follette Act).
     No court or administrative agency may require the exhaustion 
     of any right or remedy under this section as a condition for 
     pursuing any other right or remedy otherwise available to an 
     employee, former employee, or applicant under any other 
     provision of law, rule, or regulation (as referred to in 
     paragraph (2)).
       ``(f) Definitions.--For purposes of this section--
       ``(1) the term `covered information', as used with respect 
     to an employee, former employee, or applicant for employment, 
     means any information (including classified or sensitive 
     information) which the employee, former employee, or 
     applicant reasonably believes evidences--
       ``(A) any violation of any law, rule, or regulation; or
       ``(B) gross mismanagement, a gross waste of funds, an abuse 
     of authority, or a substantial and specific danger to public 
     health or safety;
       ``(2) the term `covered agency' means--
       ``(A) the Federal Bureau of Investigation, the Central 
     Intelligence Agency, the Defense Intelligence Agency, the 
     National Geospatial-Intelligence Agency, the National 
     Security Agency, and the National Reconnaissance Office; and
       ``(B) any other Executive agency, or element or unit 
     thereof, determined by the President under section 
     2302(a)(2)(C)(ii)(II) to have as its principal function the 
     conduct of foreign intelligence or counterintelligence 
     activities;
       ``(3) the term `authorized Member of Congress' means a 
     member of the House Permanent Select Committee on 
     Intelligence, the Senate Select Committee on Intelligence, 
     the House Committee on Oversight and Government Reform, the 
     Senate Committee on Homeland Security and Governmental 
     Affairs, and the committees of the House of Representatives 
     or the Senate that have oversight over the program about 
     which the covered information is disclosed;
       ``(4) the term `authorized official of an Executive agency' 
     shall have such meaning as the Office of Personnel Management 
     shall by regulation prescribe, except that such term shall, 
     with respect to any employee, former employee, or applicant 
     for employment in an agency, include--
       ``(A) the immediate supervisor of the employee or former 
     employee and each successive supervisor (immediately above 
     such immediate supervisor) within the employee's or former 
     employee's chain of authority (as determined under such 
     regulations); and
       ``(B) the head, general counsel, and ombudsman of such 
     agency; and
       ``(5) the term `authorized official of the Department of 
     Justice' means any employee of the Department of Justice, the 
     duties of whose position include the investigation, 
     enforcement, or prosecution of any law, rule, or 
     regulation.''.
       (b) Clerical Amendment.--The table of sections for chapter 
     23 of title 5, United

[[Page 6375]]

     States Code, is amended by inserting after the item relating 
     to section 2303 the following:

``2303a. National security whistleblower rights.''.

     SEC. 11. ENHANCEMENT OF CONTRACTOR EMPLOYEE WHISTLEBLOWER 
                   PROTECTIONS.

       (a) Civilian Agency Contracts.--Section 315(c) of the 
     Federal Property and Administrative Services Act of 1949 (41 
     U.S.C. 265(c)) is amended--
       (1) in paragraph (1), by striking ``If the head'' and all 
     that follows through ``actions:'' and inserting the 
     following: ``Not later than 180 days after submission of a 
     complaint under subsection (b), the head of the executive 
     agency concerned shall determine whether the contractor 
     concerned has subjected the complainant to a reprisal 
     prohibited by subsection (a) and shall either issue an order 
     denying relief or shall take one or more of the following 
     actions:''; and
       (2) by redesignating paragraph (3) as paragraph (4) and 
     adding after paragraph (2) the following new paragraph (3):
       ``(3) If the head of an executive agency has not issued an 
     order within 180 days after the submission of a complaint 
     under subsection (b) and there is no showing that such delay 
     is due to the bad faith of the complainant, the complainant 
     shall be deemed to have exhausted his administrative remedies 
     with respect to the complaint, and the complainant may bring 
     an action at law or equity for de novo review to seek 
     compensatory damages and other relief available under this 
     section in the appropriate district court of the United 
     States, which shall have jurisdiction over such an action 
     without regard to the amount in [controversy.] controversy, 
     and which action shall, at the request of either party to 
     such action, be tried by the court with a jury.''.
       (b) Armed Services Contracts.--Section 2409(c) of title 10, 
     United States Code, is amended--
       (1) in paragraph (1), by striking ``If the head'' and all 
     that follows through ``actions:'' and inserting the 
     following: ``Not later than 180 days after submission of a 
     complaint under subsection (b), the head of the agency 
     concerned shall determine whether the contractor concerned 
     has subjected the complainant to a reprisal prohibited by 
     subsection (a) and shall either issue an order denying relief 
     or shall take one or more of the following actions:''; and
       (2) by redesignating paragraph (3) as paragraph (4) and 
     adding after paragraph (2) the following new paragraph (3):
       ``(3) If the head of an agency has not issued an order 
     within 180 days after the submission of a complaint under 
     subsection (b) and there is no showing that such delay is due 
     to the bad faith of the complainant, the complainant shall be 
     deemed to have exhausted his administrative remedies with 
     respect to the complaint, and the complainant may bring an 
     action at law or equity for de novo review to seek 
     compensatory damages and other relief available under this 
     section in the appropriate district court of the United 
     States, which shall have jurisdiction over such an action 
     without regard to the amount in [controversy.] controversy, 
     and which action shall, at the request of either party to 
     such action, be tried by the court with a jury.''.

     SEC. 12. PROHIBITED PERSONNEL PRACTICES AFFECTING THE 
                   TRANSPORTATION SECURITY ADMINISTRATION.

       (a) In General.--Chapter 23 of title 5, United States Code, 
     is amended--
       (1) by redesignating sections 2304 and 2305 as sections 
     2305 and 2306, respectively; and
       (2) by inserting after section 2303a (as inserted by 
     section 10) the following:

     ``Sec. 2304. Prohibited personnel practices affecting the 
       Transportation Security Administration

       ``(a) In General.--Notwithstanding any other provision of 
     law, any individual holding or applying for a position within 
     the Transportation Security Administration shall be covered 
     by--
       ``(1) the provisions of section 2302(b)(1), (8), and (9);
       ``(2) any provision of law implementing section 2302(b)(1), 
     (8), or (9) by providing any right or remedy available to an 
     employee or applicant for employment in the civil service; 
     and
       ``(3) any rule or regulation prescribed under any provision 
     of law referred to in paragraph (1) or (2).
       ``(b) Rule of Construction.--Nothing in this section shall 
     be construed to affect any rights, apart from those described 
     in subsection (a), to which an individual described in 
     subsection (a) might otherwise be entitled under law.
       ``(c) Effective Date.--This section shall take effect as of 
     the date of the enactment of this section.''.
       (b) Clerical Amendment.--The table of sections for chapter 
     23 of title 5, United States Code, is amended by striking the 
     items relating to sections 2304 and 2305, respectively, and 
     by inserting the following:

``2304. Prohibited personnel practices affecting the Transportation 
              Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.

     SEC. 13. CLARIFICATION OF WHISTLEBLOWER RIGHTS RELATING TO 
                   SCIENTIFIC AND OTHER RESEARCH.

       Section 2302 of title 5, United States Code, is amended by 
     adding at the end the following:
       ``(f) As used in section 2302(b)(8), the term `abuse of 
     authority' includes--
       ``(1) any action that compromises the validity or accuracy 
     of federally funded research or analysis; and
       ``(2) the dissemination of false or misleading scientific, 
     medical, or technical information.''.

     SEC. 14. EFFECTIVE DATE.

       This Act shall take effect 30 days after the date of the 
     enactment of this Act, except as provided in the amendment 
     made by section 12(a)(2).

  The Acting CHAIRMAN. No further amendment is in order except those 
printed in House Report 110-48. Each further amendment may be offered 
only in the order printed in the report, by a Member designated in the 
report, shall be considered read, shall be debatable for the time 
specified in the report, equally divided and controlled by the 
proponent and an opponent, shall not be subject to amendment, and shall 
not be subject to a demand for division of the question.


                 Amendment No. 1 Offered by Mr. Stupak

  The Acting CHAIRMAN. It is now in order to consider amendment No. 1 
printed in House Report 110-48.
  Mr. STUPAK. Mr. Chairman, I offer an amendment.
  The Acting CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 1 offered by Mr. Stupak:
       Page 28, line 19, strike ``and''.

       Page 28, line 21, strike ``technical.'.'' and insert 
     ``technical; and''.

       Page 28, after line 21, add the following:

       ``(3) any action that restricts or prevents an employee or 
     any person performing federally funded research or analysis 
     from publishing in peer-reviewed journals or other scientific 
     publications or making oral presentations at professional 
     society meetings or other meetings of their peers.''.

  The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman 
from Michigan (Mr. Stupak) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Michigan.
  Mr. STUPAK. Mr. Chairman, thank you for allowing me an opportunity to 
address my amendment, and I thank the Rules Committee for making my 
amendment in order. I want to recognize Mr. Waxman, Mr. Braley, Mr. 
Davis, and others of the Government Reform Committee for advancing a 
good bill, and I want to thank Mr. Markey for his help with this 
amendment and for his previous work in protecting the right of 
government scientists to publish their findings.
  One of the most important sections of H.R. 985 deals with protecting 
the integrity of the scientific process by shielding whistleblowers who 
report tampering with government scientific investigations. My 
amendment would enhance whistleblower protection by including in the 
list of reportable actions any attempt to suppress the right of 
government scientists to publish or announce their findings in peer 
reviewed journals or public meetings with their fellow scientists.
  In science, one of the strongest signs of credibility in a study is 
that the scientists are given a right to publish their rights freely, 
whatever those results may be. Completed studies are submitted to peer-
reviewed journals for consideration, allowing the scientific community 
at large to review, challenge and incorporate new findings.
  The peer review process is a critical step in the development of 
scientific knowledge, and the transparency inherent in the process is 
one of our strongest safeguards against corrupted or misleading 
scientific claims.
  Scientific studies funded by the taxpayers should be held to this 
same high standard. Political pressure on scientists to suppress or 
hide the results of their research is a direct attack on the public 
interest, and employees who report suppression of their scholarly 
publications should be given the same protection as those who report 
other kinds of corruption or abuse of authority.

[[Page 6376]]

  My amendment would protect science in the public sector and has been 
endorsed by the Union of Concerned Scientists, a leading nonprofit 
organization dedicated to issues of scientific integrity.
  Congress has already had some experience with this issue. In November 
2004, the Senate Finance Committee heard testimony from Dr. David 
Graham, the whistleblower in the Vioxx case. Dr. Graham described how 
senior managers within the Office of Drug Safety of the FDA attempted 
to block publication of his study on the dangers of Vioxx, even going 
so far as to call the editors of The Lancet, a prestigious medical 
journal, to attack Dr. Graham's work.
  Dr. Graham's case is not an isolated incident. In a recent survey by 
the Union of Concerned Scientists, 150 of 279 government scientists 
reported some sort of political interference with their work. When 
asked whether they believed they were free to publish results that 
might go against the political positions of their agency, a majority of 
those scientists who answered the question felt they were not free to 
publish.
  We all know how important good science is in helping us make good 
public policy. As chairman of the Subcommittee on Oversight and 
Investigations, I am especially aware of the critical role 
whistleblowers have in rooting out abuses of power and aiding Congress 
in its oversight responsibilities.
  My amendment helps to make the important scientific integrity section 
of the base bill more comprehensive and more clear. My amendment will 
protect the public's right to know the results of publicly funded 
research, and will help make a good bill even better.
  Mr. Chairman, I reserve the balance of my time.
  Mr. TOM DAVIS of Virginia. Mr. Chairman, I rise to claim the time in 
opposition to the amendment.
  The Acting CHAIRMAN. The gentleman from Virginia is recognized for 5 
minutes.
  Mr. TOM DAVIS of Virginia. Mr. Chairman, this amendment would amend 
the section of the bill dealing with the so-called ``politicization of 
science'' to say that Federal researchers and scientists are permitted 
to publicize the results of their federally funded research without any 
input from the agency paying their salaries and employing them.
  First of all, I think it is inappropriate to shoehorn the debate 
about public policy influencing science into a bill about protecting 
whistleblowers. That is why I intend to support Mr. Sali's upcoming 
amendment to strike entirely the section which gives rise to this 
amendment.
  Second, this amendment would make worse the provision in the 
underlying bill which would turn the natural tension between science 
and public policy into a personnel issue to be litigated in the courts.
  The whistleblower laws protecting Federal employees are intended to 
protect individuals retaliated against for exposing waste, fraud, or 
abuse in government. This amendment has nothing to do with waste, 
fraud, or abuse, it actually has to do with one person's opinion.
  Instead, this amendment would give an individual Federal researcher 
who conducts research using taxpayer dollars the full discretion as to 
how and where to publicize his or her research, prohibiting the agency 
who financed the research and for whom the researcher works from even 
getting involved in that process.
  If a Federal researcher conducts a study using Federal money and 
decides he or she wants to present the research at a meeting in, say, 
Cuba, Iran, the Federal Government can wind up in court if it attempts 
to prevent the researcher from presenting the findings in that country.
  Or if a Federal researcher conducts a study using Federal money on a 
classified national security matter involving, let's say, satellite 
technology, the Federal Government would be legally barred from having 
any say in how and to whom that information gets disseminated.
  It is an overreach. This amendment protects one individual's right to 
determine how best to use taxpayer dollars instead of the collective 
judgment of elected and appointed policymakers. And to add insult to 
injury, the underlying bill would require taxpayers to pay the 
attorneys' fees of the individual should the researcher sue the 
government for trying to get involved.
  To make matters worse, there is nothing in this amendment that would 
bar the Federal researcher from touting the fact that his or her work 
was ``Federal research,'' giving it the pretense of being research 
endorsed by the American public. It is a slippery slope to scientific 
chaos where the taxpayer foots the bill for conflicting, misleading, 
and possibly even poorly done work. There are no protections for the 
public or taxpayers for this amendment.
  We have held a number of hearings in the Oversight and Government 
Reform Committee under the leadership of Chairman Waxman to investigate 
the possibility of ``politicization'' of science, and I understand the 
problem this amendment is attempting to address. I don't think, 
however, this is the way to do it. This is possibly a deal killer in 
terms of how this bill comes together in getting support from this side 
of the aisle.
  This amendment is bad public policy, and it is bad for national 
security. I urge my colleagues to oppose this amendment.
  Mr. Chairman, I reserve the balance of my time.
  Mr. STUPAK. Mr. Chairman, I will be brief.
  I sat for 12 years on the Energy and Commerce Committee, Oversight 
and Investigations, and I cannot tell you how many times we have dealt 
with scientists who have come forward under a whistleblower status, or 
will call us up in cases like the Vioxx that I mentioned.
  I have an article I will include for the Record where a scientist 
said, ``FDA Called Journal to Block Vioxx Article.'' Thousands of 
people have died because a drug was put forth on the market because the 
scientist within the FDA was not allowed to publish the results of his 
study and was not allowed to speak at advisory panels.
  We also see that in a drug called Ketek. It is a drug we continue to 
do investigation on, and we will have further hearings next week on it, 
how fraudulent studies were put forth before the FDA. The scientists 
knew it, and the FDA suppressed the evidence and allowed the drug to be 
approved, to the detriment and the death of many Americans.
  And there is the drug Accutane which has many mysterious questions 
surrounding it, and people have not been allowed to testify at advisory 
panels which must approve a drug before it is put forth for public use.
  This is a safety issue, and 150 of 279 government scientists reported 
political interference with their work.
  My amendment protects the public right to know the results of 
taxpayer-funded research. What is wrong with that?
  This amendment is a good amendment. It will make the bill better. I 
ask that my amendment be approved.

                            [From USA Today]

        Scientist Says FDA Called Journal To Block Vioxx Article

                            (By Rita Rubin)

       Just days before a medical journal was to publish a Food 
     and Drug Administration-sponsored study that raised concerns 
     about the safety of the arthritis drug Vioxx, an FDA official 
     took the unusual step of calling the editor to raise 
     questions about the findings' scientific integrity, suggests 
     e-mail obtained by USA TODAY.
       Lead author David Graham says the call was part of an 
     effort to block publication of his research, an analysis of a 
     database of 1.4 million Kaiser Permanente members showing 
     that those who took Vioxx were more likely to suffer a heart 
     attack or sudden cardiac death than those who took Celebrex, 
     Vioxx's rival. Graham had reported his study in August at an 
     epidemiology meeting in France, but publication in a medical 
     journal would have exposed it to a wider audience.
       Graham, associate director for science and medicine at the 
     FDA's Office of Drug Safety, says The Lancet, a medical 
     journal published in London, had planned to post the study on 
     its Web site Nov. 17, a day in advance of his appearance 
     before the Senate Finance Committee to testify about the 
     FDA's handling of Vioxx.

[[Page 6377]]

       Merck had pulled the drug from the market Sept. 30 because 
     of safety concerns. Publication of the study could have 
     embarrassed the FDA, which was being criticized for not 
     warning patients sooner of Vioxx's cardiovascular risks.
       Steven Galson, acting director of the FDA's Center for Drug 
     Evaluation and Research, said Sunday that Graham's charges 
     are unfounded. ``We didn't make any efforts to block 
     publication in The Lancet,'' he said. ``What we did is let 
     The Lancet know that the paper was submitted in violation of 
     the agency's clearance process.'' Graham had sought to 
     publish his study before getting the FDA's OK, Galson said.
       And in a written statement, FDA Acting Commissioner Lester 
     Crawford said that Galson contacted Lancet editor Richard 
     Horton ``out of respect for the scientific review process.''
       Galson said he would like to see the paper published some 
     day but didn't see the value of timing its release to the 
     Senate hearing, ``not exactly a scientific imperative.''
       Graham says he pulled his paper at the last minute because 
     he feared for his job. Following is a chronology of the 
     events surrounding the paper's withdrawal:
       Nov. 12. Galson called Horton to tell him that the FDA had 
     not cleared Graham's paper for publication. He then e-mailed 
     Horton a link to a document describing the FDA's internal 
     review process for journal articles. ``As you will see, there 
     are some ambiguities here,'' Galson said in his e-mail.
       In a later e-mail to Horton that day, Galson brought up 
     points from a nine-page review of Graham's study by Ann 
     Trontell, deputy director of the FDA's drug safety office. 
     Galson and Trontell noted discrepancies between the article 
     submitted to The Lancet and an abstract of the study that had 
     been submitted in May for presentation at a second scientific 
     meeting, an American College of Rheumatology conference. 
     Trontell's review, which Graham had forwarded to Horton, 
     refers to ``potential charges of data manipulation.''
       Graham says he had already explained the discrepancies to 
     his superiors at the FDA. After the abstract was submitted to 
     the rheumatology group, Graham says, he discovered two 
     problems: A computer program had misclassified the amount of 
     Vioxx some patients had taken; and one of his co-authors 
     noticed that an analysis Graham had done was incorrect.
       Graham says the rheumatology group told him that it was too 
     late to correct the printed abstract, but that he could 
     present the corrected analysis at its annual meeting in 
     October, as he had at the epidemiology meeting in August
       Nov. 14. In an e-mail to Galson, Horton wrote, ``You will 
     not be surprised if I say that I was a little taken aback to 
     get your call on Friday (Nov. 12). It is very unusual indeed 
     for a member of the employing institution of an author to 
     contact us in the middle of the review and publication 
     process of a manuscript.''
       Horton wrote that Galson's call could be perceived as an 
     improper attempt to interfere with The Lancet's review 
     process. Raising the possibility that a scientist manipulated 
     data ``is an extremely serious allegation,'' Horton wrote. 
     ``One could read such an allegation as an attempt to 
     introduce doubt into our minds about the honesty of the 
     authors--doubt that might be sufficient to delay or stop 
     publication of research that was clearly of serious public 
     interest''
       Nov. 18. Graham told a Senate panel that the FDA is 
     ``virtually defenseless'' against another ``terrible tragedy 
     and a profound regulatory failure'' like Vioxx.

  Mr. Chairman, I reserve the balance of my time.
  Mr. TOM DAVIS of Virginia. Mr. Chairman, I don't think there is a 
Member of this House that doesn't sympathize with what the gentleman 
from Michigan is trying to do.
  The difficulty is the way this amendment is drafted. It is a huge 
overreach. It allows anybody who is doing research under the auspices 
of the Federal Government to then publish it without any kind of 
overview from their superiors, who sometimes have competing reports and 
deliberations as they reach a public policy decision.
  This is bad law. It allows attorneys' fees in the case where somebody 
is denied that opportunity.
  This kind of overreach amendment is not about whistleblowing at all; 
it is a politicization of science from the other perspective. I urge 
Members to defeat this amendment.
  Mr. Chairman, I yield back the balance of my time.
  Mr. STUPAK. Mr. Chairman, I yield the balance of my time to the 
gentleman from Iowa (Mr. Braley).
  Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of this 
amendment, and I thank the gentleman from Michigan for introducing this 
amendment which would enhance a provision of underlying legislation 
that protects scientific whistleblowers.
  The underlying provision clarifies that whistleblowers disclosing 
political or ideological interference with Federal science are 
protected from retaliation. This amendment furthers that goal by 
affirming that Federal scientists and grantees should also be able to 
report censorship of scientific debate without fearing reprisal.
  I support passage of this amendment. I urge Members to vote ``yes.''
  The Acting CHAIRMAN. All time for debate on the amendment has 
expired.
  The question is on the amendment offered by the gentleman from 
Michigan (Mr. Stupak).
  The question was taken; and the Acting Chairman announced that the 
ayes appeared to have it.
  Mr. TOM DAVIS of Virginia. Mr. Chairman, I demand a recorded vote.
  The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from Michigan 
will be postponed.


                 Amendment No. 2 Offered by Mr. Platts

  The Acting CHAIRMAN. It is now in order to consider amendment No. 2 
printed in House Report 110-48.
  Mr. PLATTS. Mr. Chairman, I offer an amendment.
  The Acting CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 2 offered by Mr. Platts:
       Strike the heading for section 3 and insert the following 
     (and amend the table of contents accordingly):

     SEC. 3. DEFINITIONAL AMENDMENTS.

       In section 3, insert ``(a) Disclosure.--'' before 
     ``Section'' and add at the end the following:
       (b) Clear and Convincing Evidence.--Sections 
     1214(b)(4)(B)(ii) and 1221(e)(2) of title 5, United States 
     Code, are amended by adding at the end the following: ``For 
     purposes of the preceding sentence, `clear and convincing 
     evidence' means evidence indicating that the matter to be 
     proved is highly probable or reasonably certain.''.

  The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman 
from Pennsylvania (Mr. Platts) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Pennsylvania.
  Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, this amendment would require the Merit Systems 
Protection Board to rely on a consistent standard for clear and 
convincing evidence, which is the burden of proof that must be met to 
sustain an agency's affirmative defense that it would have taken the 
same personnel action in question independent of an employee's 
protected contact.
  Under the amendment, clear and convincing evidence will be defined as 
``evidence indicating that the matter to be proved is highly probable 
or reasonably certain.'' This standard is consistent with United States 
Supreme Court precedent and administrative decisions for remedial 
employment statutes.
  By way of background, when Congress passed the Whistleblower 
Protection Act of 1989, it intended to toughen the legal burden of 
proof for a Federal agency's affirmative defense once a whistleblower 
establishes a prima facie case of retaliation from ``preponderance of 
the evidence'' to ``clear and convincing evidence.'' However, just the 
opposite has occurred. The clear and convincing evidence standard is 
now the primary basis cited to rule against whistleblowers in decisions 
on merits.
  The reason behind this is that the Merit Systems Protection Board has 
created a unique test for clear and convincing evidence which is 
inconsistent with long-established judicial and administrative norms. 
In assessing the standard, the board considers three factors:
  First, the merits of an agency's stated independent justification for 
acting against a whistleblower; second, whether there was a motive to 
retaliate; and third, whether the action reflects discriminatory 
treatment compared to that afforded employees who have not engaged in 
protective conduct.
  The three-part test leaves the board with broad discretion in any 
given case

[[Page 6378]]

with respect to how many criteria an agency must demonstrate and what 
level of proof must be demonstrated for each factor.
  Adoption of this amendment is necessary in order to restore 
congressional intent in passing the Whistleblower Protection Act.

                              {time}  1600

  Through the WPA and this legislation we are now considering, Congress 
has defined the terms for two of the three tests an employee must pass 
to obtain relief: ``reasonable belief'' and ``contributing factor.'' 
For the administrative process to function as intended, Congress must 
also define ``clear and convincing evidence.''
  Accordingly, I urge a ``yes'' vote on the amendment. I appreciate 
this amendment being made in order by the Rules Committee.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of this amendment 
offered by the gentleman from Pennsylvania and commend him for his 
work.
  Mr. TOM DAVIS of Virginia. Mr. Chairman, I rise to claim the time in 
opposition.
  The Acting CHAIRMAN. The gentleman from Virginia is recognized for 5 
minutes.
  Mr. TOM DAVIS of Virginia. Mr. Chairman, I yield myself such time as 
I may consume.
  I oppose this amendment. This amendment would raise the threshold by 
which agencies must prove they would have taken disciplinary action 
against an employee notwithstanding the employee's whistleblower claim.
  Current law requires agencies to prove this by clear and convincing 
evidence. This amendment raises the threshold and requires agencies to 
prove that such action was highly probable or reasonably certain.
  There may be a real issue here which must be addressed, but after 
working on this bill for years now yesterday was the first time that 
this issue was brought to our attention.
  On its face, I am concerned this amendment would raise an already 
high threshold imposed upon agencies trying to prove they are placing 
an employee on administrative leave because, for example, the employee 
sexually harassed another employee and not because the employee is a 
whistleblower. The current clear and convincing evidence standard seems 
a sufficient burden of proof to impose upon agencies.
  I am also concerned we may be establishing a dangerous precedent by 
further defining in one isolated statute what the term ``clear and 
convincing evidence'' means. Does the U.S. Code typically define 
standards of proof such as ``clear and convincing'' and ``beyond a 
reasonable doubt'' or are these terms of art defined in case law? And 
does this new definition of ``highly probable'' or ``reasonably 
certain'' actually solve the problem or does it make it even more 
confusing for courts and litigants?
  Mr. Chairman, there may be a valid issue here worth investigating. It 
is entirely possible that the Office of Special Counsel, the Merit 
Systems Protection Board and the courts are getting this wrong, but we 
should review this proposed change and vet it through the committee 
process before amending the Whistleblower Protection Act.
  The good news is we have an opportunity to address these questions. 
The authorizations for both the Office of Special Counsel and the Merit 
Systems Protection Board expire this year, and the committee can and 
should carefully review the issue as we consider these 
reauthorizations.
  I think my concern on this, if there is a pending sexual harassment 
claim against an employee, and they all of the sudden turn out and 
become a whistleblower, that then in the sexual harassment claim we 
have a higher standard, and for the litigant, the person that has been 
harassed in that case, they have a higher burden of proof than they 
would notwithstanding the whistleblower claim. I do not think that is 
fair to the person who is being harassed in this case, and I do not see 
a need for it.
  So I urge my colleagues to oppose this amendment today and allow the 
committee in regular order to consider carefully and foil this problem 
identified by my good friend and colleague Mr. Platts.
  Mr. Chairman, I reserve the balance of my time.
  Mr. PLATTS. Mr. Chairman, I appreciate the gentleman's concerns 
raised and certainly will keep them in mind as we move forward with 
this process today and in the weeks and months to come.
  I yield 1\1/2\ minutes to the gentleman from Iowa (Mr. Braley).
  Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of this amendment 
offered by the gentleman from Pennsylvania and commend him for his 
work. This amendment will clarify the standard used to evaluate an 
employee's defense when a whistleblower claims that an employer acted 
in illegal retaliation.
  When a whistleblower claims that an agency engaged in a retaliatory 
action, it is an affirmative defense for the agency if it can prove 
that it would have taken the same action even if the employee had not 
blown the whistle. This is, in fact, the same type of analysis that 
takes place in sex discrimination and sexual harassment claims, and yet 
nothing in this amendment would impose a different burden of proof in 
those cases because they are statutory-based claims and are not 
affected by the amendment.
  Congress set the agency's burden of proof for this defense as ``clear 
and convincing evidence'' in the Whistleblower Protection Act. The 
Merit Systems Protection Board has ignored the intent of Congress and 
implemented its own test for evaluating whether or not an agency has 
shown clear and convincing evidence that it would have taken the same 
action anyway.
  This has made it almost impossible for employees to successfully 
challenge retaliatory personnel actions.
  This amendment defines clear and convincing evidence as evidence 
indicating that the matter to be proved is highly probable or 
reasonably certain.
  This is a commonsense fix that clarifies Congress' intent.
  I support this amendment which will further strengthen protection for 
whistleblowers and urge all Members to vote ``yes'' in support of the 
amendment.
  Mr. TOM DAVIS of Virginia. Mr. Chairman, I just urge my colleagues to 
oppose the amendment, and I yield back the balance of my time.
  Mr. PLATTS. Mr. Chairman, again, I appreciate the gentleman from 
Iowa's support and words in support of this amendment and urge a 
``yes'' vote. I yield back the balance of my time.
  The Acting CHAIRMAN. The question is on the amendment offered by the 
gentleman from Pennsylvania (Mr. Platts).
  The question was taken; and the Acting Chairman announced that the 
noes appeared to have it.
  Mr. PLATTS. Mr. Chairman, I demand a recorded vote.
  The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from Pennsylvania 
will be postponed.


                 Amendment No. 3 Offered by Mr. Platts

  The Acting CHAIRMAN. It is now in order to consider amendment No. 3 
printed in House Report 110-48.
  Mr. PLATTS. Mr. Chairman, I offer an amendment.
  The Acting CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 3 offered by Mr. Platts:
       In section 2, in the matter to be inserted by paragraphs 
     (1)(A) and (2)(A) thereof, insert ``forum,'' after 
     ``context,''.
       In section 2, insert ``(a) In General.--'' before 
     ``Section'' and add at the end the following:
       (b) Prohibited Personnel Practices Under Section 
     2302(b)(9).--Title 5, United States Code, is amended in 
     subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of section 
     1214 and in subsections (a) and (e)(1) of section 1221 by 
     inserting ``or 2302(b)(9)(B)-(D)'' after ``section 
     2302(b)(8)'' each place it appears.
       In section 1221(k)(1) of title 5, United States Code (as 
     added by section 9(a)), insert ``or 2302(b)(9)(B)-(D)'' after 
     ``section 2302(b)(8)''.

[[Page 6379]]

       In section 7703(b)(3) of title 5, United States Code (as 
     added by section 9(b)(2)), insert ``or 2302(b)(9)(B)-(D)'' 
     after ``section 2302(b)(8)''.
       In the matter to be inserted by section 9(d)(2) in section 
     7703(c) of title 5, United States Code, insert ``or 
     2302(b)(9)(B)-(D)'' after ``section 2302(b)(8)''.
       In section 2303a(a)(2)(A) of title 5, United States Code 
     (as amended by section 10(a)), insert ``forum,'' after 
     ``context,''.

  The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman 
from Pennsylvania (Mr. Platts) and a Member opposed each will control 5 
minutes.
  The Chair recognizes the gentleman from Pennsylvania.
  Mr. PLATTS. Mr. Chairman, I yield myself as much time as I may 
consume.
  This amendment is intended to address situations in which an employee 
faces retaliation for being associated with whistleblowers through his 
or her testimony in a legal proceeding, and to encourage cooperation 
with Inspector General and Office of Special Counsel investigations, as 
well as compliance with the law.
  Oddly, under current law, whistleblowers who make their disclosures 
of waste, fraud or abuse in the context of another employee's legal 
appeal, a grievance hearing, an Inspector General or Office of Special 
Counsel investigation are not given the same protections as other 
whistleblowers, such as those who blow the whistle on national 
television. This simply does not make sense.
  My amendment would rectify this situation in three ways. First, the 
amendment would clarify that a protected disclosure cannot be 
disqualified because of the forum in which it is made, such as through 
witness testimony in another employee's appeal.
  Second, the amendment would establish more realistic burdens of 
proof, the same as exist in most whistleblower cases, for those who 
were retaliated against because they testified on behalf of an employee 
exercising their legal rights, because they cooperated with an 
Inspector General or Special Counsel investigation, or because they 
refused to obey an order that would have required a violation of the 
law.
  And third, the amendment gives these whistleblowers access to the 
same due process rights as other whistleblowers.
  Testifying under oath, cooperating with an Inspector General or 
Special Counsel investigation, and refusing orders to violate the law 
are all important ways by which public servants can expose waste, fraud 
and abuse in the government. Accordingly, I urge a ``yes'' vote on the 
amendment.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of the amendment.
  The Acting CHAIRMAN. Without objection, the gentleman from Iowa is 
recognized for 5 minutes.
  There was no objection.
  Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may 
consume.
  This amendment clarifies that Federal whistleblowers are protected 
regardless of where they are or when they blow the whistle.
  A whistleblower who makes a disclosure that is considered a 
whistleblower disclosure under 5 U.S.C. 2302(b)(8) gets the benefit of 
protections such as the right to challenge a retaliatory act by an 
employer. If the same whistleblower makes the same disclosure but does 
it while testifying as a plaintiff or as a witness in litigation, the 
whistleblower does not get the same protections.
  We should protect Federal employees who expose government wrongdoing, 
no matter what the forum. This amendment appropriately extends 
Whistleblower Protection Act coverage to employees who make disclosures 
in litigation as described in 5 U.S.C. Section 2302(b)(9).
  This amendment extends equal burdens of proof and individual rights 
of action to whistleblowers who serve as witnesses in Inspector General 
and Special Counsel investigations. This amendment also clarifies that 
these protections apply to Federal employees who face retaliation for 
refusing to violate the law.
  I urge my colleagues to support this amendment, which closes these 
senseless loopholes.
  Mr. Chairman, I yield back the balance of my time.
  Mr. PLATTS. Mr. Chairman, how much time do I have?
  The Acting CHAIRMAN. The gentleman from Pennsylvania (Mr. Platts) has 
3\1/2\ minutes remaining. The gentleman from Iowa (Mr. Braley) has 
yielded back the balance of his time.
  Mr. PLATTS. Mr. Chairman, I yield 2 minutes to the gentleman from 
Virginia (Mr. Tom Davis), the ranking member of the Committee on 
Oversight and Government Reform.
  Mr. TOM DAVIS of Virginia. Mr. Chairman, I thank the gentleman from 
Pennsylvania and, once again, thank him for his leadership on this 
issue. I support this amendment.
  This amendment will extend additional whistleblower protections 
against reprisal to employees who cooperate with their agency Inspector 
General or in some other official grievance or investigative process.
  Unfortunately, courts have misread the intent of the Whistleblower 
Protection Act and have arbitrarily reclassified certain whistleblowing 
activity as an exercise of appeal right. These rights are covered under 
a different section of title V of the U.S. Code.
  By reclassifying these activities as exercises of appeal right, the 
courts have deprived employees of whistleblowing protection for their 
same disclosure showing significant misconduct if presented in a 
grievance or litigation instead of, for example, in a television 
interview.
  It could occur when an employee faces reprisal as one associated with 
a whistleblower when testifying in an IG investigation or Office of 
Special Counsel investigation.
  It strikes me these are precisely the forums Congress intended the 
whistleblower to take. These are, in essence, whistleblowers who are 
operating within the existing chain of command. They have used the 
chain of command, not gone outside the system, but they are not 
afforded the same protection as those who do.
  These are the forums where we can actually make a difference to 
policymakers. This amendment ends the inequity by clarifying that an 
otherwise protected disclosure cannot be disqualified because of the 
forum where it is communicated.
  I support this amendment. I congratulate my friend for offering it.
  Mr. PLATTS. Mr. Chairman, I would just like to again recognize the 
ranking member, the past several terms as the chairman of the 
Government Reform Committee. He and his staff have been instrumental in 
moving this issue forward and working with my staff and members on the 
other side as well, and want to recognize him and his staff for their 
great work.
  Mr. Chairman, I yield back the balance of my time.
  The Acting CHAIRMAN. The question is on the amendment offered by the 
gentleman from Pennsylvania (Mr. Platts).
  The amendment was agreed to.


                  Amendment No. 4 Offered by Mr. Sali

  The Acting CHAIRMAN. It is now in order to consider amendment No. 4 
printed in House Report 110-48.
  Mr. SALI. Mr. Chairman, I offer an amendment.
  The Acting CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 4 offered by Mr. Sali:
       Strike section 13 (and make all necessary technical and 
     conforming changes).

  The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman 
from Idaho (Mr. Sali) and a Member opposed each will control 5 minutes.
  The Chair recognizes the gentleman from Idaho.

                              {time}  1615

  Mr. SALI. Mr. Chairman, my amendment would remove language from H.R. 
985 that would prohibit dissent with respect to scientific research.
  I filed my amendment because I believe it is inappropriate to attempt 
to shoehorn the debate about public policy influencing science into 
this legislation, thus turning it into a personnel issue to be 
litigated in the courts.

[[Page 6380]]

  As set forth by section 13 of the bill, the dissemination of ``false 
or misleading technical information'' is deemed to be an ``abuse of 
authority'' upon which a Federal authority can make a protected 
disclosure.
  The problem is that on scientific issues, the question of what is 
false or misleading is often a difficult question on which reasonable 
people can disagree, and on which sometimes scientific authorities have 
a hard time making up their minds. Are eggs good for you or bad for 
you? Is milk good for you or bad for you?
  Section 13 of this bill has significant implications upon the 
development of scientific research conducted by the government, 
including research and development work at the Defense Department, as 
well as federally funded research on health and related issues. By 
including the science provisions in this bill, I am concerned that we 
are opening the door for debates in science to become the basis of 
litigation. Putting the threat of litigation on a healthy debate of 
science is not good public policy.
  Furthermore, this clause potentially makes the tension between ethics 
and science the subject of litigation. For example, federally funded 
scientific research on human cloning should be debated amongst 
policymakers and agency officials without fear of retaliation by 
scientists and researchers. If an agency or the administration 
disagrees with the findings of a particular scientist, we should not be 
opening up our judicial system for those disagreements to be litigated 
as Federal employee personnel issues. That hardly seems like a 
responsible policy.
  I urge my colleagues to oppose turning science into a personnel issue 
to be litigated in the courts.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BRALEY of Iowa. Mr. Chairman, I rise in strong opposition to this 
amendment.
  The Acting CHAIRMAN. The gentleman is recognized for 5 minutes.
  Mr. BRALEY of Iowa. For the past 6 years, there has been overwhelming 
political interference with science by the Bush administration. We have 
seen examples of government scientists barred from conducting or 
presenting research because it conflicts with administration policies. 
We have seen scientific findings manipulated or outright rejected when 
they don't bolster favored policies. And we have seen government 
agencies put out information about health that is entirely false, but 
politically advantageous. In one EPA report on the environment, the 
White House made so many edits to downplay the discussion of global 
warming that scientists at the agency said the draft no longer 
accurately represents scientific consensus on climate change.
  The FDA delayed approval of plan B for over-the-counter use based on 
political, not scientific, reasons, causing senior FDA officials and 
scientific experts to resign in protest.
  Numerous scientific and medical organizations have taken positions 
against this abuse of science. It has been condemned in the editorial 
pages of the most prominent scientific journals. The Journal of 
Science, for instance, said that this interference invades areas once 
immune to this kind of manipulation.
  Mr. Chairman, 52 Nobel Laureates, 62 National Medal of Science 
winners, 194 members of the National Academies of Science and thousands 
of other American scientists have signed a statement speaking out 
against political interference in science. To prevent and remedy these 
kinds of problems, we have to know about them. That is why this 
legislation makes clear that employees who want to disclose these kinds 
of abuses are entitled to whistleblower protections. Our Federal 
scientists should not be punished at work for coming forward to report 
these abuses of science.
  This legislation will have no effect at all on legitimate political 
or policy decisions related to scientific issues. All it does is 
prevent retaliation against employees who report abuses of science. The 
amendment we are debating now would strike this critical provision.
  I strongly oppose the amendment and urge all Members to vote ``nay.''
  Mr. Chairman, I reserve the balance of my time.
  Mr. SALI. Mr. Chairman, I yield 2 minutes to the gentleman from 
California (Mr. Issa).
  Mr. ISSA. Mr. Chairman, I rise in support of this amendment and for 
the exact same reason that my colleague on the other side of the aisle 
opposes it.
  We have a predicament that we are dealing with in this very 
committee, in the Committee on Oversight and Government Reform. We are 
dealing with global warming. The $2 billion-plus that we spend every 
year, and scientists like Jim Hansen and others who have been out there 
saying what they want to freely, the way they want to, and they have 
done this at a time in which there is an allegation of a problem. Quite 
frankly, it is amazing that when I Google, I get tens of thousands of 
hits on a scientist who is talking about why global warming is a 
threat, why we have to do things quickly, and yet there is some theory 
that we have stifled science.
  By treating science separately in the whistleblower status, we are 
doing a disservice to every scientist and treating them adversely, 
separately and differently. This simply wants to return us to a 
procedure that we had before, one that has worked. In fact, Jim Hansen, 
who will be before our committee next week, and others have gone 
through a vetting process and then proceeded to make freely the 
speeches they wanted to make. There has not been a need for 
whistleblower. In fact, scientists are free to express their opinions 
now, and that is appropriate; they can do it under the existing 
guidelines.
  This amendment seeks to return us to what was a functioning system, 
one in which we supported science, and scientists have been free to say 
what they want to. There may be edits going up the process that the 
gentleman on the other side of the aisle objects to, but there were 
edits under the previous administration.
  I urge support of the Sali amendment, recognizing that, in fact, this 
would be a sword that could cut both ways and the future could be 
adverse to the very scientists it seeks to assist.
  Mr. BRALEY of Iowa. Mr. Chairman, this amendment, which strikes 
section 13 of the underlying bill, is very simple; all it does is 
expand the term ``abuse of authority'' under existing law to include 
any action that compromises the validity or accuracy of federally 
funded research or analysis. And it is the federally funded component 
of that clause that makes this amendment bad for the American people.
  American taxpayers should not have the risk of important scientific 
research being impacted by political influence from any political 
party. That is why it is important that this amendment be defeated.
  There are those that say that politics and science will always 
intersect. That is absolutely true. Science doesn't give us all the 
answers. We have to make political and policy decisions about the right 
path to follow.
  For example, an administration might decide not to support a certain 
type of research. We may not agree with that decision, but the 
administration has a right to make it as long as it is honest about the 
information and rationale behind it. What is not acceptable is when the 
government actually manipulates science to advance its decisions.
  Hiding data, releasing misinformation, gagging scientists, all to 
justify a political course of action, is wrong. That is the type of 
action that we want Federal employees to feel safe in reporting. And 
that is why this bill makes crystal clear that disclosures related to 
manipulation and distortion of science are protected disclosures. That 
is why I again call upon my colleagues on both sides of the aisle to 
join me in voting against this amendment.
  With that, Mr. Chairman, I yield back the balance of my time.
  Mr. SALI. Mr. Chairman, how much time is remaining?
  The Acting CHAIRMAN. The gentleman from Idaho has 1 minute remaining.
  Mr. SALI. Mr. Chairman, I would expect that the good gentleman that 
is

[[Page 6381]]

debating against this amendment has policies in his office that allow 
him to control the message that comes out of his office, not to hide 
anything, I'm sure, but so that he will have a uniform message. That is 
important at times within government agencies.
  What we do not want to do, Mr. Chairman, is, we do not want to 
include a provision in this bill that will put scientific debate in the 
middle of personnel issues for the Federal Government. We do not want 
to put the results of scientific research, we don't want to take that 
out of the grasp of debate by policymakers for fear of retaliation by 
scientists and researchers who are doing work for the Federal 
Government.
  Mr. Chairman, this is good public policy to have this amendment, to 
take this section out of the bill; and I would urge my colleagues to 
support this amendment
  Mr. Chairman, I yield back the balance of my time.
  The Acting CHAIRMAN. The question is on the amendment offered by the 
gentleman from Idaho (Mr. Sali).
  The question was taken, and the Acting Chairman announced that the 
noes appeared to have it.


                             Recorded Vote

  Mr. SALI. Mr. Chairman, I demand a recorded vote.
  The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further 
proceedings on the amendment offered by the gentleman from Idaho will 
be postponed.


                 Amendment No. 5 Offered by Mr. Tierney

  The Acting CHAIRMAN. It is now in order to consider amendment No. 5 
printed in House Report 110-48.
  Mr. TIERNEY. Mr. Chairman, I offer an amendment.
  The Acting CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 5 offered by Mr. Tierney
       Page 13, strike line 19, and all that follows through page 
     24, line 7, and insert the following:

     SEC. 10. NATIONAL SECURITY WHISTLEBLOWER RIGHTS.

       (a) In General.--Chapter 23 of title 5, United States Code, 
     is amended by inserting after section 2303 the following:

     ``Sec. 2303a. National security whistleblower rights

       ``(a) Prohibition of Reprisals.--
       ``(1) In general.--In addition to any rights provided in 
     section 2303 of this title, title VII of Public Law 105-272, 
     or any other provision of law, an employee or former employee 
     in a covered agency may not be discharged, demoted, or 
     otherwise discriminated against (including by denying, 
     suspending, or revoking a security clearance, or by otherwise 
     restricting access to classified or sensitive information) as 
     a reprisal for making a disclosure described in paragraph 
     (2).
       ``(2) Disclosures described.--A disclosure described in 
     this paragraph is any disclosure of covered information which 
     is made--
       ``(A) by an employee or former employee in a covered agency 
     (without restriction as to time, place, form, motive, 
     context, or prior disclosure made to any person by an 
     employee or former employee, including a disclosure made in 
     the course of an employee's duties); and
       ``(B) to an authorized Member of Congress, an authorized 
     official of an Executive agency, or the Inspector General of 
     the covered agency in which such employee or former employee 
     is or was employed.
       ``(b) Investigation of Complaints.--An employee or former 
     employee in a covered agency who believes that such employee 
     or former employee has been subjected to a reprisal 
     prohibited by subsection (a) may submit a complaint to the 
     Inspector General and the head of the covered agency. The 
     Inspector General shall investigate the complaint and, unless 
     the Inspector General determines that the complaint is 
     frivolous, submit a report of the findings of the 
     investigation within 120 days to the employee or former 
     employee (as the case may be) and to the head of the covered 
     agency.
       ``(c) Remedy.--
       ``(1) Within 180 days of the filing of the complaint, the 
     head of the covered agency shall, taking into consideration 
     the report of the Inspector General under subsection (b) (if 
     any), determine whether the employee or former employee has 
     been subjected to a reprisal prohibited by subsection (a), 
     and shall either issue an order denying relief or shall 
     implement corrective action to return the employee or former 
     employee, as nearly as possible, to the position he would 
     have held had the reprisal not occurred, including voiding 
     any directive or order denying, suspending, or revoking a 
     security clearance or otherwise restricting access to 
     classified or sensitive information that constituted a 
     reprisal, as well as providing back pay and related benefits, 
     medical costs incurred, travel expenses, any other reasonable 
     and foreseeable consequential damages, and compensatory 
     damages (including attorney's fees, interest, reasonable 
     expert witness fees, and costs). If the head of the covered 
     agency issues an order denying relief, he shall issue a 
     report to the employee or former employee detailing the 
     reasons for the denial.
       ``(2)(A) If the head of the covered agency, in the process 
     of implementing corrective action under paragraph (1), voids 
     a directive or order denying, suspending, or revoking a 
     security clearance or otherwise restricting access to 
     classified or sensitive information that constituted a 
     reprisal, the head of the covered agency may re-initiate 
     procedures to issue a directive or order denying, suspending, 
     or revoking a security clearance or otherwise restricting 
     access to classified or sensitive information only if those 
     re-initiated procedures are based exclusively on national 
     security concerns and are unrelated to the actions 
     constituting the original reprisal.
       ``(B) In any case in which the head of a covered agency re-
     initiates procedures under subparagraph (A), the head of the 
     covered agency shall issue an unclassified report to its 
     Inspector General and to authorized Members of Congress (with 
     a classified annex, if necessary), detailing the 
     circumstances of the agency's re-initiated procedures and 
     describing the manner in which those procedures are based 
     exclusively on national security concerns and are unrelated 
     to the actions constituting the original reprisal. The head 
     of the covered agency shall also provide periodic updates to 
     the Inspector General and authorized Members of Congress 
     detailing any significant actions taken as a result of those 
     procedures, and shall respond promptly to inquiries from 
     authorized Members of Congress regarding the status of those 
     procedures.
       ``(3) If the head of the covered agency has not made a 
     determination under paragraph (1) within 180 days of the 
     filing of the complaint (or he has issued an order denying 
     relief, in whole or in part, whether within that 180-day 
     period or thereafter, then, within 90 days after such order 
     is issued), the employee or former employee may bring an 
     action at law or equity for de novo review to seek any 
     corrective action described in paragraph (1) in the 
     appropriate United States district court (as defined by 
     section 1221(k)(2)), which shall have jurisdiction over such 
     action without regard to the amount in controversy. An appeal 
     from a final decision of a district court in an action under 
     this paragraph may, at the election of the appellant, be 
     taken to the Court of Appeals for the Federal Circuit (which 
     shall have jurisdiction of such appeal), in lieu of the 
     United States court of appeals for the circuit embracing the 
     district in which the action was brought.
       ``(4) An employee or former employee adversely affected or 
     aggrieved by an order issued under paragraph (1), or who 
     seeks review of any corrective action determined under 
     paragraph (1), may obtain judicial review of such order or 
     determination in the United States Court of Appeals for the 
     Federal Circuit or any United States court of appeals having 
     jurisdiction over appeals from any United States district 
     court which, under section 1221(k)(2), would be an 
     appropriate United States district court. No petition seeking 
     such review may be filed more than 60 days after issuance of 
     the order or the determination to implement corrective action 
     by the head of the agency. Review shall conform to chapter 7.
       ``(5)(A) If, in any action for damages or relief under 
     paragraph (3) or (4), an Executive agency moves to withhold 
     information from discovery based on a claim that disclosure 
     would be inimical to national security by asserting the 
     privilege commonly referred to as the `state secrets 
     privilege', and if the assertion of such privilege prevents 
     the employee or former employee from establishing an element 
     in support of the employee's or former employee's claim, the 
     court shall resolve the disputed issue of fact or law in 
     favor of the employee or former employee, provided that an 
     Inspector General investigation under subsection (b) has 
     resulted in substantial confirmation of that element, or 
     those elements, of the employee's or former employee's claim.
       ``(B) In any case in which an Executive agency asserts the 
     privilege commonly referred to as the `state secrets 
     privilege', whether or not an Inspector General has conducted 
     an investigation under subsection (b), the head of that 
     agency shall, at the same time it asserts the privilege, 
     issue a report to authorized Members of Congress, accompanied 
     by a classified annex if necessary, describing the reasons 
     for the assertion, explaining why the court hearing the 
     matter does not have the ability to maintain the protection 
     of classified information related to the assertion, detailing 
     the steps the agency has taken to arrive at a mutually 
     agreeable settlement with the employee or former employee, 
     setting forth the date on which the classified information at 
     issue will be declassified, and providing all relevant 
     information about the underlying substantive matter.
       ``(d) Applicability to Non-Covered Agencies.--An employee 
     or former employee in an

[[Page 6382]]

     Executive agency (or element or unit thereof) that is not a 
     covered agency shall, for purposes of any disclosure of 
     covered information (as described in subsection (a)(2)) which 
     consists in whole or in part of classified or sensitive 
     information, be entitled to the same protections, rights, and 
     remedies under this section as if that Executive agency (or 
     element or unit thereof) were a covered agency.
       ``(e) Construction.--Nothing in this section may be 
     construed--
       ``(1) to authorize the discharge of, demotion of, or 
     discrimination against an employee or former employee for a 
     disclosure other than a disclosure protected by subsection 
     (a) or (d) of this section or to modify or derogate from a 
     right or remedy otherwise available to an employee or former 
     employee; or
       ``(2) to preempt, modify, limit, or derogate any rights or 
     remedies available to an employee or former employee under 
     any other provision of law, rule, or regulation (including 
     the Lloyd-La Follette Act).

     No court or administrative agency may require the exhaustion 
     of any right or remedy under this section as a condition for 
     pursuing any other right or remedy otherwise available to an 
     employee or former employee under any other provision of law, 
     rule, or regulation (as referred to in paragraph (2)).
       ``(f) Definitions.--For purposes of this section--
       ``(1) the term `covered information', as used with respect 
     to an employee or former employee, means any information 
     (including classified or sensitive information) which the 
     employee or former employee reasonably believes evidences--
       ``(A) any violation of any law, rule, or regulation; or
       ``(B) gross mismanagement, a gross waste of funds, an abuse 
     of authority, or a substantial and specific danger to public 
     health or safety;
       ``(2) the term `covered agency' means--
       ``(A) the Federal Bureau of Investigation, the Office of 
     the Director of National Intelligence, the Central 
     Intelligence Agency, the Defense Intelligence Agency, the 
     National Geospatial-Intelligence Agency, the National 
     Security Agency, and the National Reconnaissance Office; and
       ``(B) any other Executive agency, or element or unit 
     thereof, determined by the President under section 
     2302(a)(2)(C)(ii)(II) to have as its principal function the 
     conduct of foreign intelligence or counterintelligence 
     activities;
       ``(3) the term `authorized Member of Congress' means--
       ``(A) with respect to covered information about sources and 
     methods of the Central Intelligence Agency, the Director of 
     National Intelligence, and the National Intelligence Program 
     (as defined in section 3(6) of the National Security Act of 
     1947), a member of the House Permanent Select Committee on 
     Intelligence, the Senate Select Committee on Intelligence, or 
     any other committees of the House of Representatives or 
     Senate to which this type of information is customarily 
     provided;
       ``(B) with respect to special access programs specified in 
     section 119 of title 10, an appropriate member of the 
     Congressional defense committees (as defined in such 
     section); and
       ``(C) with respect to other covered information, a member 
     of the House Permanent Select Committee on Intelligence, the 
     Senate Select Committee on Intelligence, the House Committee 
     on Oversight and Government Reform, the Senate Committee on 
     Homeland Security and Governmental Affairs, or any other 
     committees of the House of Representatives or the Senate that 
     have oversight over the program which the covered information 
     concerns; and
       ``(4) the term `authorized official of an Executive agency' 
     shall have such meaning as the Office of Personnel Management 
     shall by regulation prescribe, except that such term shall, 
     with respect to any employee or former employee in an agency, 
     include the head, the general counsel, and the ombudsman of 
     such agency.''.

  The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman 
from Massachusetts (Mr. Tierney) and a Member opposed each will control 
5 minutes.
  The Chair recognizes the gentleman from Massachusetts.
  Mr. TIERNEY. Mr. Chairman, as we discussed already here, 
whistleblowers play a key role in holding government accountable, and 
this legislation takes the important and long-overdue step of providing 
whistleblower protections for Federal workers who specialize in 
national security issues.
  This amendment was carefully crafted to clarify the process by which 
national security whistleblower information, that is, information which 
may evidence a violation of law, rule or regulation of gross 
mismanagement, fraud, waste, or abuse is shared with executive branch 
officials and Members of Congress. It specifically addresses 
information possessed by whistleblowers involving intelligence sources 
and methods. And in those instances that is information that is 
customarily provided to the House and Senate Intelligence Committees. 
It also makes clear that information of concern relating to the 
Department of Defense Special Access Programs, or SAPS as they are 
currently called, should be reported to the Armed Services Committee 
and the Defense Appropriations Subcommittee.
  Overall, this clarifying amendment strengthens the bill by ensuring 
that current and former employees of the intelligence community, the 
FBI, the military and other national security elements that possess 
sensitive classified national security information receive adequate 
protections against reprisals under the law. Further, it will better 
ensure the protection of classified sensitive information at issue in 
many of these cases. So I urge my colleagues to support what I believe 
is a sensible amendment.
  Mr. Chairman, I yield back the balance of my time.
  Mr. BRALEY of Iowa. Mr. Chairman, I am not opposed, but I ask 
unanimous consent to claim the time in opposition.
  The Acting CHAIRMAN. Without objection, the gentleman from Iowa is 
recognized for 5 minutes.
  There was no objection.
  Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of the amendment 
offered by the gentleman from Massachusetts (Mr. Tierney).
  I commend Mr. Tierney for his work on this compromise. As a member of 
both the Permanent Select Committee on Intelligence and the Committee 
on Oversight and Government Reform, he has done a great job on 
expressing the concerns of both committees in a way that will allow us 
to move forward with this important legislation.
  One particular change made by this amendment is the removal of 
language in the underlying bill that allows a national security 
whistleblower to always disclose information to a supervisor. This 
amendment acknowledges that there are certain circumstances where it 
may not be appropriate for a supervisor to receive a disclosure, such 
as when an employee is disclosing classified information to which the 
supervisor does not have access. This amendment also changes a 
provision in H.R. 985 regarding national security whistleblowers, to 
limit which Members of Congress can receive information from a national 
security whistleblower about an especially sensitive subject.
  It is important that Federal workers who specialize in national 
security issues have the ability to disclose the information about 
government wrongdoing to Congress. These workers need to know that they 
have access to a safe harbor where information will be fully 
investigated and appropriately safeguarded. However, because of the 
sensitive nature of the information these whistleblowers may disclose, 
it is also important to ensure that appropriate Members of Congress 
receive these communications.

                              {time}  1630

  This amendment addresses concerns that have been raised about 
allowing national security whistleblowers to disclose sensitive 
classified information to Congress by ensuring that information will go 
to members of committees with expertise and procedures for handling 
such information.
  I support this compromise amendment, and I urge all Members to vote 
``yes.'
  Mr. Chairman, I yield back the balance of my time.
  The Acting CHAIRMAN. All time for debate on the amendment has 
expired.
  The question is on the amendment offered by the gentleman from 
Massachusetts (Mr. Tierney).
  The amendment was agreed to.


                 Amendment No. 2 offered by Mr. Platts

  Mr. PLATTS. Mr. Chairman, I ask unanimous consent that the request 
for a recorded vote on amendment No. 2 and the previous vote by voice 
on that amendment be vacated, to the end that the Chair put the 
question on adopting the amendment de novo.
  The Acting CHAIRMAN. Is there objection to the request of the 
gentleman from Pennsylvania?

[[Page 6383]]

  There was no objection.
  The Acting CHAIRMAN. The question is on the amendment offered by the 
gentleman from Pennsylvania (Mr. Platts).
  The amendment was agreed to.


                  Announcement by the Acting Chairman

  The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, proceedings 
will now resume on those amendments on which further proceedings were 
postponed, in the following order:
  Amendment No. 1 by Mr. Stupak of Michigan.
  Amendment No. 4 by Mr. Sali of Idaho.
  The Chair will reduce to 5 minutes the time for any electronic vote 
after the first vote in this series.


                 Amendment No. 1 Offered by Mr. Stupak

  The Acting CHAIRMAN. The pending business is the demand for a 
recorded vote on the amendment offered by the gentleman from Michigan 
(Mr. Stupak) on which further proceedings were postponed and on which 
the ayes prevailed by voice vote.
  The Clerk will redesignate the amendment.
  The Clerk redesignated the amendment.


                             Recorded Vote

  The Acting CHAIRMAN. A recorded vote has been demanded.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 250, 
noes 178, not voting 10, as follows:

                             [Roll No. 149]

                               AYES--250

     Abercrombie
     Ackerman
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Baird
     Baldwin
     Barrow
     Bartlett (MD)
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Bordallo
     Boren
     Boswell
     Boucher
     Boustany
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Braley (IA)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Carson
     Castor
     Chandler
     Christensen
     Clarke
     Clay
     Cleaver
     Clyburn
     Cohen
     Conyers
     Cooper
     Courtney
     Cramer
     Crowley
     Cubin
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis, Lincoln
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dent
     Dicks
     Dingell
     Doggett
     Donnelly
     Doyle
     Edwards
     Ehlers
     Ellison
     Ellsworth
     Emanuel
     Engel
     Eshoo
     Etheridge
     Faleomavaega
     Farr
     Fattah
     Ferguson
     Filner
     Fortenberry
     Frank (MA)
     Giffords
     Gilchrest
     Gillibrand
     Gillmor
     Gonzalez
     Gordon
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Hall (NY)
     Hare
     Harman
     Hastings (FL)
     Herseth
     Higgins
     Hill
     Hinchey
     Hinojosa
     Hirono
     Hodes
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (GA)
     Johnson, E. B.
     Jones (NC)
     Kagen
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind
     Klein (FL)
     Kucinich
     LaHood
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     LoBiondo
     Loebsack
     Lofgren, Zoe
     Lowey
     Lynch
     Mahoney (FL)
     Maloney (NY)
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (NY)
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McNerney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Michaud
     Millender-McDonald
     Miller (NC)
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (KS)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murphy, Tim
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Norton
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Payne
     Perlmutter
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reichert
     Reyes
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schwartz
     Scott (GA)
     Scott (VA)
     Serrano
     Sestak
     Shays
     Shea-Porter
     Sherman
     Shuler
     Sires
     Skelton
     Slaughter
     Smith (NJ)
     Smith (WA)
     Snyder
     Solis
     Space
     Spratt
     Stark
     Stupak
     Sutton
     Tauscher
     Taylor
     Terry
     Thompson (CA)
     Thompson (MS)
     Tiahrt
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Walden (OR)
     Walz (MN)
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Wexler
     Wilson (OH)
     Woolsey
     Wu
     Wynn
     Yarmuth

                               NOES--178

     Aderholt
     Akin
     Alexander
     Bachmann
     Bachus
     Baker
     Barrett (SC)
     Barton (TX)
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonner
     Bono
     Boozman
     Brady (TX)
     Brown-Waite, Ginny
     Buchanan
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Coble
     Cole (OK)
     Conaway
     Crenshaw
     Culberson
     Davis (KY)
     Davis, David
     Davis, Tom
     Deal (GA)
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Emerson
     English (PA)
     Everett
     Fallin
     Feeney
     Flake
     Forbes
     Fortuno
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Graves
     Hall (TX)
     Hastert
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hulshof
     Hunter
     Inglis (SC)
     Issa
     Jindal
     Johnson (IL)
     Johnson, Sam
     Jordan
     Keller
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline (MN)
     Knollenberg
     Kuhl (NY)
     Lamborn
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     McCarthy (CA)
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris Rodgers
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Musgrave
     Myrick
     Neugebauer
     Nunes
     Paul
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Royce
     Ryan (WI)
     Sali
     Schmidt
     Sensenbrenner
     Sessions
     Shadegg
     Shimkus
     Shuster
     Simpson
     Smith (NE)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Tancredo
     Thornberry
     Tiberi
     Turner
     Upton
     Walberg
     Walsh (NY)
     Wamp
     Weldon (FL)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--10

     Brown (SC)
     Costa
     Costello
     Davis, Jo Ann
     Granger
     Jones (OH)
     Meehan
     Miller, George
     Saxton
     Tanner

                              {time}  1658

  Messrs. PEARCE, CAMPBELL of California and DEAL of Georgia changed 
their vote from ``aye'' to ``no.''
  Mrs. LOWEY and Messrs. BARTLETT of Maryland, WALDEN of Oregon and 
ISRAEL changed their vote from ``no'' to ``aye.''
  So the amendment was agreed to.
  The result of the vote was announced as above recorded.


                  Amendment No. 4 Offered by Mr. Sali

  The Acting CHAIRMAN. The pending business is the demand for a 
recorded vote on the amendment offered by the gentleman from Idaho (Mr. 
Sali) on which further proceedings were postponed and on which the noes 
prevailed by voice vote.
  The Clerk will redesignate the amendment.
  The Clerk redesignated the amendment.


                             Recorded Vote

  The Acting CHAIRMAN. A recorded vote has been demanded.
  A recorded vote was ordered.
  The Acting CHAIRMAN. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 159, 
noes 271, not voting 8, as follows:

                             [Roll No. 150]

                               AYES--159

     Aderholt
     Akin
     Alexander
     Bachmann
     Bachus
     Baker
     Barrett (SC)
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonner
     Bono
     Boozman
     Brady (TX)
     Buchanan
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Chabot
     Coble
     Cole (OK)
     Conaway
     Crenshaw
     Culberson
     Davis (KY)
     Davis, David
     Davis, Tom
     Deal (GA)
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Emerson
     English (PA)
     Everett
     Fallin
     Feeney
     Flake
     Forbes
     Fortuno
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Graves
     Hall (TX)
     Hastert
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Hobson
     Hunter
     Inglis (SC)
     Issa
     Johnson, Sam
     Jones (NC)
     Jordan
     Keller
     King (IA)
     King (NY)
     Kingston
     Kline (MN)
     Knollenberg
     Kuhl (NY)
     Lamborn
     Latham
     Lewis (KY)
     Linder
     Lucas
     Lungren, Daniel E.
     Manzullo
     Marchant
     McCarthy (CA)
     McCaul (TX)
     McCotter
     McCrery
     McHenry

[[Page 6384]]


     McKeon
     McMorris Rodgers
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Musgrave
     Myrick
     Neugebauer
     Nunes
     Paul
     Pearce
     Pence
     Peterson (PA)
     Pickering
     Pitts
     Poe
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Royce
     Ryan (WI)
     Sali
     Schmidt
     Sensenbrenner
     Sessions
     Shadegg
     Shimkus
     Shuster
     Simpson
     Smith (NE)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Terry
     Thornberry
     Tiberi
     Turner
     Upton
     Walberg
     Wamp
     Weldon (FL)
     Weller
     Westmoreland
     Whitfield
     Wilson (NM)
     Wilson (SC)
     Young (AK)

                               NOES--271

     Abercrombie
     Ackerman
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Baird
     Baldwin
     Barrow
     Bartlett (MD)
     Barton (TX)
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Bordallo
     Boren
     Boswell
     Boucher
     Boustany
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Braley (IA)
     Brown, Corrine
     Brown-Waite, Ginny
     Butterfield
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Carson
     Castle
     Castor
     Chandler
     Christensen
     Clarke
     Clay
     Cleaver
     Clyburn
     Cohen
     Conyers
     Cooper
     Costa
     Costello
     Courtney
     Cramer
     Crowley
     Cubin
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis, Lincoln
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dent
     Dicks
     Dingell
     Doggett
     Donnelly
     Doyle
     Edwards
     Ehlers
     Ellison
     Ellsworth
     Emanuel
     Engel
     Eshoo
     Etheridge
     Faleomavaega
     Farr
     Fattah
     Ferguson
     Filner
     Fortenberry
     Frank (MA)
     Giffords
     Gilchrest
     Gillibrand
     Gillmor
     Gonzalez
     Gordon
     Green, Al
     Green, Gene
     Grijalva
     Hall (NY)
     Hare
     Harman
     Hastings (FL)
     Herger
     Herseth
     Higgins
     Hill
     Hinchey
     Hinojosa
     Hirono
     Hodes
     Hoekstra
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Hulshof
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Jindal
     Johnson (GA)
     Johnson (IL)
     Johnson, E. B.
     Jones (OH)
     Kagen
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind
     Kirk
     Klein (FL)
     Kucinich
     LaHood
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     LaTourette
     Lee
     Levin
     Lewis (CA)
     Lewis (GA)
     Lipinski
     LoBiondo
     Loebsack
     Lofgren, Zoe
     Lowey
     Lynch
     Mack
     Mahoney (FL)
     Maloney (NY)
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (NY)
     McCollum (MN)
     McDermott
     McGovern
     McHugh
     McIntyre
     McNerney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Michaud
     Millender-McDonald
     Miller (NC)
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (KS)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murphy, Tim
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Norton
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Payne
     Perlmutter
     Peterson (MN)
     Petri
     Platts
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Regula
     Reichert
     Reyes
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schwartz
     Scott (GA)
     Scott (VA)
     Serrano
     Sestak
     Shays
     Shea-Porter
     Sherman
     Shuler
     Sires
     Skelton
     Slaughter
     Smith (NJ)
     Smith (WA)
     Snyder
     Solis
     Space
     Spratt
     Stark
     Stupak
     Sutton
     Tancredo
     Tauscher
     Taylor
     Thompson (CA)
     Thompson (MS)
     Tiahrt
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Walden (OR)
     Walsh (NY)
     Walz (MN)
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Wexler
     Wicker
     Wilson (OH)
     Wolf
     Woolsey
     Wu
     Wynn
     Yarmuth
     Young (FL)

                             NOT VOTING--8

     Brown (SC)
     Davis, Jo Ann
     Granger
     Gutierrez
     Meehan
     Miller, George
     Saxton
     Tanner

                              {time}  1708

  So the amendment was rejected.
  The result of the vote was announced as above recorded.
  The Acting CHAIRMAN. There being no further amendments, the Committee 
rises.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Scott of Georgia) having assumed the chair, Mr. Ross, Acting Chairman 
of the Committee of the Whole House on the state of the Union, reported 
that that Committee, having had under consideration the bill (H.R. 985) 
to amend title 5, United States Code, to clarify which disclosures of 
information are protected from prohibited personnel practices; to 
require a statement in nondisclosure policies, forms, and agreements to 
the effect that such policies, forms, and agreements are consistent 
with certain disclosure protections, and for other purposes, pursuant 
to House Resolution 239, he reported the bill, as amended by that 
resolution, back to the House with sundry further amendments adopted by 
the Committee of the Whole.
  The SPEAKER pro tempore. Under the rule, the previous question is 
ordered.
  Is a separate vote demanded on any further amendment reported from 
the Committee of the Whole?
  Mr. PRICE of Georgia. Mr. Speaker, I demand a re-vote on the Stupak 
amendment.
  The SPEAKER pro tempore. Is a separate vote demanded on any other 
amendment? If not, the Chair will put them en gros.
  The amendments were agreed to.
  The SPEAKER pro tempore. The Clerk will redesignate the amendment on 
which a separate vote has been demanded.
  The text of the amendment is as follows:

       Amendment No. 1 offered by Mr. Stupak:
       Page 28, line 19, strike ``and''.
       Page 28, line 21, strike ``technical.'.'' and insert 
     ``technical; and''.
       Page 28, after line 21, add the following:
       ``(3) any action that restricts or prevents an employee or 
     any person performing federally funded research or analysis 
     from publishing in peer-reviewed journals or other scientific 
     publications or making oral presentations at professional 
     society meetings or other meetings of their peers.''.

  The SPEAKER pro tempore. The question is on the amendment.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. PRICE of Georgia. Mr. Speaker, on that I demand the yeas and 
nays.
  The yeas and nays were ordered.
  The vote was taken by electronic device, and there were--yeas 252, 
nays 173, not voting 8, as follows:

                             [Roll No. 151]

                               YEAS--252

     Abercrombie
     Ackerman
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Baird
     Baldwin
     Barrow
     Bartlett (MD)
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boren
     Boswell
     Boucher
     Boustany
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Braley (IA)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Carson
     Castor
     Chandler
     Clarke
     Clay
     Cleaver
     Clyburn
     Cohen
     Conyers
     Cooper
     Costa
     Costello
     Courtney
     Cramer
     Crowley
     Cubin
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis, Lincoln
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dent
     Dicks
     Dingell
     Doggett
     Donnelly
     Doyle
     Edwards
     Ehlers
     Ellison
     Ellsworth
     Emanuel
     Engel
     Eshoo
     Etheridge
     Farr
     Fattah
     Ferguson
     Filner
     Fortenberry
     Frank (MA)
     Giffords
     Gilchrest
     Gillibrand
     Gillmor
     Gonzalez
     Gordon
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Hall (NY)
     Hare
     Harman
     Hastings (FL)
     Herseth
     Higgins
     Hill
     Hinchey
     Hinojosa
     Hirono
     Hodes
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (GA)
     Johnson (IL)
     Johnson, E. B.
     Jones (NC)
     Jones (OH)
     Kagen
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind
     Klein (FL)
     Kucinich
     LaHood
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     LoBiondo
     Loebsack
     Lofgren, Zoe
     Lowey
     Lynch
     Mahoney (FL)
     Maloney (NY)
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (NY)
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McNerney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Michaud
     Millender-McDonald
     Miller (NC)
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (KS)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murphy, Tim
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Payne
     Perlmutter
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reichert
     Renzi
     Reyes
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schwartz
     Scott (GA)
     Scott (VA)
     Serrano
     Sestak
     Shays
     Shea-Porter
     Sherman
     Shuler
     Sires
     Skelton

[[Page 6385]]


     Slaughter
     Smith (NJ)
     Smith (WA)
     Snyder
     Solis
     Space
     Spratt
     Stark
     Stupak
     Sutton
     Tauscher
     Taylor
     Terry
     Thompson (CA)
     Thompson (MS)
     Tiahrt
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Walden (OR)
     Walz (MN)
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Wexler
     Wilson (OH)
     Woolsey
     Wu
     Wynn
     Yarmuth
     Young (AK)

                               NAYS--173

     Aderholt
     Akin
     Alexander
     Bachmann
     Bachus
     Baker
     Barrett (SC)
     Barton (TX)
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonner
     Bono
     Boozman
     Brady (TX)
     Brown-Waite, Ginny
     Buchanan
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Coble
     Cole (OK)
     Conaway
     Crenshaw
     Culberson
     Davis (KY)
     Davis, David
     Davis, Tom
     Deal (GA)
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Emerson
     English (PA)
     Everett
     Fallin
     Feeney
     Flake
     Forbes
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Graves
     Hall (TX)
     Hastert
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hulshof
     Hunter
     Inglis (SC)
     Issa
     Jindal
     Johnson, Sam
     Jordan
     Keller
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline (MN)
     Knollenberg
     Kuhl (NY)
     Lamborn
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     McCarthy (CA)
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris Rodgers
     Mica
     Miller (MI)
     Miller, Gary
     Musgrave
     Myrick
     Neugebauer
     Nunes
     Paul
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Royce
     Ryan (WI)
     Sali
     Schmidt
     Sensenbrenner
     Sessions
     Shadegg
     Shimkus
     Shuster
     Simpson
     Smith (NE)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Tancredo
     Thornberry
     Tiberi
     Turner
     Upton
     Walberg
     Walsh (NY)
     Wamp
     Weldon (FL)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (FL)

                             NOT VOTING--8

     Brown (SC)
     Davis, Jo Ann
     Granger
     Meehan
     Miller (FL)
     Miller, George
     Saxton
     Tanner

                              {time}  1727

  So the amendment was agreed to.
  The result of the vote was announced as above recorded.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.

                              {time}  1730


             Motion to Recommit Offered by Mr. Westmoreland

  Mr. WESTMORELAND. Mr. Speaker, I offer a motion to recommit.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. WESTMORELAND. I am in its present form, Mr. Speaker.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. Westmoreland moves to recommit the bill H.R. 985 to the 
     Committee on Oversight and Government Reform with 
     instructions that the Committee report the same back to the 
     House forthwith with the following amendments:
       Page 28, line 13, before ``Section'' insert ``(a) In 
     General.--__''.
       Page 28, line 19, strike ``and''.
       Page 28, line 21, strike ``.'.'' and insert ``; and''.
       Page 28, after line 21, insert the following:
       ``(4) any action that discriminates for or against any 
     employee or applicant for employment on the basis of 
     religion, as defined by section 13(b) of the Whistleblower 
     Protection Enhancement Act of 2007.''.
       Page 28, after line 21 (following the matter inserted by 
     the previous amendment), add the following:
       (b) Definition.--As used in section 2302(f)(3) of title 5, 
     United States Code (as amended by subsection (a)), the term 
     ``on the basis of religion'' means--
       (1) prohibiting personal religious expression by Federal 
     employees to the greatest extent possible, consistent with 
     requirements of law and interests in workplace efficiency;
       (2) requiring religious participation or non-participation 
     as a condition of employment, or permitting religious 
     harassment;
       (3) failing to accommodate employees' exercise of their 
     religion;
       (4) failing to treat all employees with the same respect 
     and consideration, regardless of their religion (or lack 
     thereof);
       (5) restricting personal religious expression by employees 
     in the Federal workplace except where the employee's interest 
     in the expression is outweighed by the government's interest 
     in the efficient provision of public services or where the 
     expression intrudes upon the legitimate rights of other 
     employees or creates the appearance, to a reasonable 
     observer, of an official endorsement of religion;
       (6) regulating employees' personal religious expression on 
     the basis of its content or viewpoint, or suppressing 
     employees' private religious speech in the workplace while 
     leaving unregulated other private employee speech that has a 
     comparable effect on the efficiency of the workplace, 
     including ideological speech on politics and other topics;
       (7) failing to exercise their authority in an evenhanded 
     and restrained manner, and with regard for the fact that 
     Americans are used to expressions of disagreement on 
     controversial subjects, including religious ones;
       (8) failing to permit an employee to engage in private 
     religious expression in personal work areas not regularly 
     open to the public to the same extent that they may engage in 
     nonreligious private expression, subject to reasonable 
     content- and viewpoint-neutral standards and restrictions;
       (9) failing to permit an employee to engage in religious 
     expression with fellow employees, to the same extent that 
     they may engage in comparable nonreligious private 
     expression, subject to reasonable and content-neutral 
     standards and restrictions;
       (10) failing to permit an employee to engage in religious 
     expression directed at fellow employees, and may even attempt 
     to persuade fellow employees of the correctness of their 
     religious views, to the same extent as those employees may 
     engage in comparable speech not involving religion;
       (11) inhibiting an employee from urging a colleague to 
     participate or not to participate in religious activities to 
     the same extent that, consistent with concerns of workplace 
     efficiency, they may urge their colleagues to engage in or 
     refrain from other personal endeavors, except that the 
     employee must refrain from such expression when a fellow 
     employee asks that it stop or otherwise demonstrates that it 
     is unwelcome;
       (12) failing to prohibit expression that is part of a 
     larger pattern of verbal attacks on fellow employees (or a 
     specific employee) not sharing the faith of the speaker;
       (13) preventing an employee from--
       (A) wearing personal religious jewelry absent special 
     circumstances (such as safety concerns) that might require a 
     ban on all similar nonreligious jewelry; or
       (B) displaying religious art and literature in their 
     personal work areas to the same extent that they may display 
     other art and literature, so long as the viewing public would 
     reasonably understand the religious expression to be that of 
     the employee acting in her personal capacity, and not that of 
     the government itself;
       (14) prohibiting an employee from using their private time 
     to discuss religion with willing coworkers in public spaces 
     to the same extent as they may discuss other subjects, so 
     long as the public would reasonably understand the religious 
     expression to be that of the employees acting in their 
     personal capacities;
       (15) discriminating against an employee on the basis of 
     their religion, religious beliefs, or views concerning their 
     religion by promoting, refusing to promote, hiring, refusing 
     to hire, or otherwise favoring or disfavoring, an employee or 
     potential employee because of his or her religion, religious 
     beliefs, or views concerning religion, or by explicitly or 
     implicitly, insisting that the employee participate in 
     religious activities as a condition of continued employment, 
     promotion, salary increases, preferred job assignments, or 
     any other incidents of employment or insisting that an 
     employee refrain from participating in religious activities 
     outside the workplace except pursuant to otherwise legal, 
     neutral restrictions that apply to employees' off-duty 
     conduct and expression in general (such as restrictions on 
     political activities prohibited by the Hatch Act);
       (16) prohibiting a supervisor's religious expression where 
     it is not coercive and is understood to be his or her 
     personal view, in the same way and to the same extent as 
     other constitutionally valued speech;
       (17) permitting a hostile environment, or religious 
     harassment, in the form of religiously discriminatory 
     intimidation, or pervasive or severe religious ridicule or 
     insult, whether by supervisors or fellow workers, as 
     determined by its frequency or repetitiveness, and severity;
       (18) failing to accommodate an employee's exercise of their 
     religion unless such accommodation would impose an undue 
     hardship on the conduct of the agency's operations, based on 
     real rather than speculative or hypothetical cost and without 
     disfavoring other, nonreligious accommodations; and

[[Page 6386]]

       (19) in those cases where an agency's work rule imposes a 
     substantial burden on a particular employee's exercise of 
     religion, failing to grant the employee an exemption from 
     that rule, absent a compelling interest in denying the 
     exemption and where there is no less restrictive means of 
     furthering that interest.
       (c) Rule of Construction.--Nothing in this section shall be 
     construed to create any new right, benefit, or trust 
     responsibility, substantive or procedural, enforceable at law 
     or equity by a party against the United States, its agencies, 
     its officers, or any person.

  Mr. WESTMORELAND (during the reading). Mr. Speaker, I ask unanimous 
consent that the motion be considered as read and printed in the 
Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Georgia?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Georgia is recognized for 5 minutes in support of his motion.
  Mr. WESTMORELAND. Mr. Speaker, I offer this motion to recommit with 
instructions.
  One of the most confusing areas of public life for most Americans 
involves to what extent a person may express their personal religious 
views. Everyone believes they have complete religious freedom and yet 
the media often reports instances where courts or administrators say 
people may not express their religious faith. The unfortunate result of 
this confusion is that people tend to self-censor their behavior.
  In 1997, the Clinton administration sent out guidelines to all 
Federal agencies that specifically detailed an employee's right to 
religious expression in the workplace. As then-President Clinton said 
in his remarks on the executive memorandum, ``Religious freedom is at 
the heart of what it means to be an American and at the heart of our 
journey to become truly one America.''
  America continues to see ever-growing and diverse forms of religious 
expression, and unfortunately we have also seen an increase in the 
attempts to undermine religious freedom and expression.
  So, as we consider this bill, we should be clear that the Federal 
employees do not have to check their faith at the door of their 
workplace and are protected under this bill if they do report 
violations of the current Clinton-era guidelines. In fact, it is often 
their faith that makes them the compassionate social worker in the 
employment office, the loving teacher in the Head Start program and the 
caring medical professionals treating our wounded soldiers.
  There is nothing more personal than a person's faith, and our Federal 
employees deserve to know that they cannot be forced to check their 
quality of life at the door. As such, this motion provides that it is 
an abuse of authority for Federal agencies to prevent a Federal 
employee from blowing the whistle on instances of retaliation against 
permissible religious exercise and expression in the workplace.
  The definition of permissible religious exercise and expression is 
drawn from President Clinton's 1997 memorandum to Federal agencies 
regarding religious expression in the Federal workplace. It includes, 
for example, the ability of Federal employees to have a Bible on their 
desk, wear a religious emblem on their clothing, or to express their 
views to other employees. It also includes provisions protecting 
against discrimination, harassment and coercion.
  I believe this is an important addition to this bill, Mr. Speaker, 
and I urge my colleagues to support the addition of this language.
  Mr. Speaker, I yield back the balance of my time.
  Mr. TIERNEY. Mr. Speaker, I am not opposing the motion, but I ask 
unanimous consent to claim the time in opposition.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Massachusetts?
  There was no objection.
  Mr. TIERNEY. Mr. Speaker, we are prepared to accept this motion, and 
assume that means we will have unanimity on final passage.
  This appears to track President Clinton's executive order, and it is, 
in fact, current law. To that extent, we have no difficulty in 
accepting it.
  The motion to recommit seems to extend the coverage of the 
Whistleblower Protection Act to whistleblowers who report violations of 
President Clinton's guidelines of religious exercise and religious 
expression in the Federal workplace.
  The guidelines apply to all civilian executive branch agencies, 
officials, and employees of the Federal workforce, they specify which 
religious expressions by covered employees, and under what 
circumstances, are permitted or may be regulated or prohibited.
  The guidelines were issued by President Clinton to clarify how to 
address the sometimes difficult situations in the workplace where an 
agency must balance the free expression rights of Federal workers with 
the rights of other workers and the obligation of Federal authorities 
not to engage in the official promotion of religion.
  By providing greater clarity, the guidelines have helped to avoid 
conflicts in the Federal workplace over the balance between religious 
expression and the obligations of the Federal Government to the 
Constitution, other employees and the general public.
  With that, as I said, it seems to track that executive order; and if 
it does, we are happy to accept it.
  The SPEAKER pro tempore. Without objection, the previous question is 
ordered on the motion to recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. WESTMORELAND. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair 
will reduce to 5 minutes the minimum time for any electronic vote on 
the question of passage.
  The vote was taken by electronic device, and there were--ayes 426, 
noes 0, not voting 7, as follows:

                             [Roll No. 152]

                               AYES--426

     Abercrombie
     Ackerman
     Aderholt
     Akin
     Alexander
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Bachmann
     Bachus
     Baird
     Baker
     Baldwin
     Barrett (SC)
     Barrow
     Bartlett (MD)
     Barton (TX)
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Biggert
     Bilbray
     Bilirakis
     Bishop (GA)
     Bishop (NY)
     Bishop (UT)
     Blackburn
     Blumenauer
     Blunt
     Boehner
     Bonner
     Bono
     Boozman
     Boren
     Boswell
     Boucher
     Boustany
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Brady (TX)
     Braley (IA)
     Brown, Corrine
     Brown-Waite, Ginny
     Buchanan
     Burgess
     Burton (IN)
     Butterfield
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Carson
     Carter
     Castle
     Castor
     Chabot
     Chandler
     Clarke
     Clay
     Cleaver
     Clyburn
     Coble
     Cohen
     Cole (OK)
     Conaway
     Conyers
     Cooper
     Costa
     Costello
     Courtney
     Cramer
     Crenshaw
     Crowley
     Cubin
     Cuellar
     Culberson
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis (KY)
     Davis, David
     Davis, Lincoln
     Davis, Tom
     Deal (GA)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Dicks
     Dingell
     Doggett
     Donnelly
     Doolittle
     Doyle
     Drake
     Dreier
     Duncan
     Edwards
     Ehlers
     Ellison
     Ellsworth
     Emanuel
     Emerson
     Engel
     English (PA)
     Eshoo
     Etheridge
     Everett
     Fallin
     Farr
     Fattah
     Feeney
     Ferguson
     Filner
     Flake
     Forbes
     Fortenberry
     Fossella
     Foxx
     Frank (MA)
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Giffords
     Gilchrest
     Gillibrand
     Gillmor
     Gingrey
     Gohmert
     Gonzalez
     Goode
     Goodlatte
     Gordon
     Graves
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Hall (NY)
     Hall (TX)
     Hare
     Harman
     Hastert
     Hastings (FL)
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herger
     Herseth
     Higgins
     Hill
     Hinchey
     Hinojosa
     Hirono
     Hobson
     Hodes
     Hoekstra
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Hulshof
     Hunter
     Inglis (SC)
     Inslee
     Israel
     Issa
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Jindal
     Johnson (GA)
     Johnson (IL)
     Johnson, E. B.
     Johnson, Sam
     Jones (NC)
     Jones (OH)
     Jordan
     Kagen
     Kanjorski
     Kaptur
     Keller
     Kennedy
     Kildee

[[Page 6387]]


     Kilpatrick
     Kind
     King (IA)
     King (NY)
     Kingston
     Kirk
     Klein (FL)
     Kline (MN)
     Knollenberg
     Kucinich
     Kuhl (NY)
     LaHood
     Lamborn
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Latham
     LaTourette
     Lee
     Levin
     Lewis (CA)
     Lewis (GA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Loebsack
     Lofgren, Zoe
     Lowey
     Lucas
     Lungren, Daniel E.
     Lynch
     Mack
     Mahoney (FL)
     Maloney (NY)
     Manzullo
     Marchant
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (CA)
     McCarthy (NY)
     McCaul (TX)
     McCollum (MN)
     McCotter
     McCrery
     McDermott
     McGovern
     McHenry
     McHugh
     McIntyre
     McKeon
     McMorris Rodgers
     McNerney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Mica
     Michaud
     Millender-McDonald
     Miller (FL)
     Miller (MI)
     Miller (NC)
     Miller, Gary
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (KS)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murphy, Tim
     Murtha
     Musgrave
     Myrick
     Nadler
     Napolitano
     Neal (MA)
     Neugebauer
     Nunes
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Pearce
     Pence
     Perlmutter
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Pomeroy
     Porter
     Price (GA)
     Price (NC)
     Pryce (OH)
     Putnam
     Radanovich
     Rahall
     Ramstad
     Rangel
     Regula
     Rehberg
     Reichert
     Renzi
     Reyes
     Reynolds
     Rodriguez
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Ross
     Rothman
     Roybal-Allard
     Royce
     Ruppersberger
     Rush
     Ryan (OH)
     Ryan (WI)
     Salazar
     Sali
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schmidt
     Schwartz
     Scott (GA)
     Scott (VA)
     Sensenbrenner
     Serrano
     Sessions
     Sestak
     Shadegg
     Shays
     Shea-Porter
     Sherman
     Shimkus
     Shuler
     Shuster
     Simpson
     Sires
     Skelton
     Slaughter
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Snyder
     Solis
     Souder
     Space
     Spratt
     Stark
     Stearns
     Stupak
     Sullivan
     Sutton
     Tancredo
     Tauscher
     Taylor
     Terry
     Thompson (CA)
     Thompson (MS)
     Thornberry
     Tiahrt
     Tiberi
     Tierney
     Towns
     Turner
     Udall (CO)
     Udall (NM)
     Upton
     Van Hollen
     Velazquez
     Visclosky
     Walberg
     Walden (OR)
     Walsh (NY)
     Walz (MN)
     Wamp
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Weldon (FL)
     Weller
     Westmoreland
     Wexler
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (OH)
     Wilson (SC)
     Wolf
     Woolsey
     Wu
     Wynn
     Yarmuth
     Young (AK)
     Young (FL)

                             NOT VOTING--7

     Brown (SC)
     Davis, Jo Ann
     Granger
     Meehan
     Miller, George
     Saxton
     Tanner

                              {time}  1758

  Mr. SHERMAN changed his vote from ``no'' to ``aye.''
  So the motion to recommit was agreed to.
  The result of the vote was announced as above recorded
  Mr. BRALEY of Iowa. Mr. Speaker, pursuant to the instructions of the 
House on the motion to recommit, I report the bill, H.R. 985, back to 
the House with an amendment.
  The SPEAKER pro tempore. The Clerk will report the amendment.
  The Clerk read as follows:

       Amendment:
       Page 28, line 13, before ``Section'' insert ``(a) In 
     General.--__''.
       Page 28, line 19, strike ``and''.
       Page 28, line 21, strike ``.'.'' and insert ``; and''.
       Page 28, after line 21, insert the following:
       ``(4) any action that discriminates for or against any 
     employee or applicant for employment on the basis of 
     religion, as defined by section 13(b) of the Whistleblower 
     Protection Enhancement Act of 2007.''.
       Page 28, after line 21 (following the matter inserted by 
     the previous amendment), add the following:
       (b) Definition.--As used in section 2302(f)(3) of title 5, 
     United States Code (as amended by subsection (a)), the term 
     ``on the basis of religion'' means--
       (1) prohibiting personal religious expression by Federal 
     employees to the greatest extent possible, consistent with 
     requirements of law and interests in workplace efficiency;
       (2) requiring religious participation or non-participation 
     as a condition of employment, or permitting religious 
     harassment;
       (3) failing to accommodate employees' exercise of their 
     religion;
       (4) failing to treat all employees with the same respect 
     and consideration, regardless of their religion (or lack 
     thereof);
       (5) restricting personal religious expression by employees 
     in the Federal workplace except where the employee's interest 
     in the expression is outweighed by the government's interest 
     in the efficient provision of public services or where the 
     expression intrudes upon the legitimate rights of other 
     employees or creates the appearance, to a reasonable 
     observer, of an official endorsement of religion;
       (6) regulating employees' personal religious expression on 
     the basis of its content or viewpoint, or suppressing 
     employees' private religious speech in the workplace while 
     leaving unregulated other private employee speech that has a 
     comparable effect on the efficiency of the workplace, 
     including ideological speech on politics and other topics;
       (7) failing to exercise their authority in an evenhanded 
     and restrained manner, and with regard for the fact that 
     Americans are used to expressions of disagreement on 
     controversial subjects, including religious ones;
       (8) failing to permit an employee to engage in private 
     religious expression in personal work areas not regularly 
     open to the public to the same extent that they may engage in 
     nonreligious private expression, subject to reasonable 
     content- and viewpoint-neutral standards and restrictions;
       (9) failing to permit an employee to engage in religious 
     expression with fellow employees, to the same extent that 
     they may engage in comparable nonreligious private 
     expression, subject to reasonable and content-neutral 
     standards and restrictions;
       (10) failing to permit an employee to engage in religious 
     expression directed at fellow employees, and may even attempt 
     to persuade fellow employees of the correctness of their 
     religious views, to the same extent as those employees may 
     engage in comparable speech not involving religion;
       (11) inhibiting an employee from urging a colleague to 
     participate or not to participate in religious activities to 
     the same extent that, consistent with concerns of workplace 
     efficiency, they may urge their colleagues to engage in or 
     refrain from other personal endeavors, except that the 
     employee must refrain from such expression when a fellow 
     employee asks that it stop or otherwise demonstrates that it 
     is unwelcome;
       (12) failing to prohibit expression that is part of a 
     larger pattern of verbal attacks on fellow employees (or a 
     specific employee) not sharing the faith of the speaker;
       (13) preventing an employee from--
       (A) wearing personal religious jewelry absent special 
     circumstances (such as safety concerns) that might require a 
     ban on all similar nonreligious jewelry; or
       (B) displaying religious art and literature in their 
     personal work areas to the same extent that they may display 
     other art and literature, so long as the viewing public would 
     reasonably understand the religious expression to be that of 
     the employee acting in her personal capacity, and not that of 
     the government itself;
       (14) prohibiting an employee from using their private time 
     to discuss religion with willing coworkers in public spaces 
     to the same extent as they may discuss other subjects, so 
     long as the public would reasonably understand the religious 
     expression to be that of the employees acting in their 
     personal capacities;
       (15) discriminating against an employee on the basis of 
     their religion, religious beliefs, or views concerning their 
     religion by promoting, refusing to promote, hiring, refusing 
     to hire, or otherwise favoring or disfavoring, an employee or 
     potential employee because of his or her religion, religious 
     beliefs, or views concerning religion, or by explicitly or 
     implicitly, insisting that the employee participate in 
     religious activities as a condition of continued employment, 
     promotion, salary increases, preferred job assignments, or 
     any other incidents of employment or insisting that an 
     employee refrain from participating in religious activities 
     outside the workplace except pursuant to otherwise legal, 
     neutral restrictions that apply to employees' off-duty 
     conduct and expression in general (such as restrictions on 
     political activities prohibited by the Hatch Act);
       (16) prohibiting a supervisor's religious expression where 
     it is not coercive and is understood to be his or her 
     personal view, in the same way and to the same extent as 
     other constitutionally valued speech;
       (17) permitting a hostile environment, or religious 
     harassment, in the form of religiously discriminatory 
     intimidation, or pervasive or severe religious ridicule or 
     insult, whether by supervisors or fellow workers, as 
     determined by its frequency or repetitiveness, and severity;
       (18) failing to accommodate an employee's exercise of their 
     religion unless such accommodation would impose an undue 
     hardship on the conduct of the agency's operations, based on 
     real rather than speculative or hypothetical cost and without 
     disfavoring other, nonreligious accommodations; and
       (19) in those cases where an agency's work rule imposes a 
     substantial burden on a particular employee's exercise of 
     religion, failing to grant the employee an exemption from 
     that rule, absent a compelling interest in denying the 
     exemption and where there is no less restrictive means of 
     furthering that interest.
       (c) Rule of Construction.--Nothing in this section shall be 
     construed to create any new right, benefit, or trust 
     responsibility, substantive or procedural, enforceable at law 
     or equity by a party against the United States, its agencies, 
     its officers, or any person.


[[Page 6388]]

  Mr. BRALEY of Iowa (during the reading). Mr. Speaker, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Iowa?
  There was no objection.
  The SPEAKER pro tempore. The question is on the amendment.
  The amendment was agreed to.
  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. BRALEY of Iowa. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--yeas 331, 
nays 94, not voting 8, as follows:

                             [Roll No. 153]

                               YEAS--331

     Abercrombie
     Ackerman
     Alexander
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Bachus
     Baird
     Baldwin
     Barrow
     Bartlett (MD)
     Barton (TX)
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bilbray
     Bilirakis
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Bono
     Boozman
     Boren
     Boswell
     Boucher
     Boustany
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Braley (IA)
     Brown, Corrine
     Brown-Waite, Ginny
     Buchanan
     Burton (IN)
     Butterfield
     Calvert
     Camp (MI)
     Capito
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Carson
     Castle
     Castor
     Chabot
     Chandler
     Clarke
     Clay
     Cleaver
     Clyburn
     Coble
     Cohen
     Cole (OK)
     Conyers
     Cooper
     Costa
     Costello
     Courtney
     Cramer
     Crenshaw
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis, Lincoln
     Davis, Tom
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Dicks
     Dingell
     Doggett
     Donnelly
     Doolittle
     Doyle
     Drake
     Edwards
     Ehlers
     Ellison
     Ellsworth
     Emanuel
     Emerson
     Engel
     English (PA)
     Eshoo
     Etheridge
     Farr
     Fattah
     Ferguson
     Filner
     Fortenberry
     Fossella
     Frank (MA)
     Frelinghuysen
     Gerlach
     Giffords
     Gilchrest
     Gillibrand
     Gillmor
     Gohmert
     Gonzalez
     Goode
     Goodlatte
     Gordon
     Graves
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Hall (NY)
     Hall (TX)
     Hare
     Harman
     Hastings (FL)
     Hayes
     Heller
     Herger
     Herseth
     Higgins
     Hill
     Hinchey
     Hinojosa
     Hirono
     Hobson
     Hodes
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Hulshof
     Inslee
     Israel
     Issa
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Jindal
     Johnson (GA)
     Johnson (IL)
     Johnson, E. B.
     Jones (NC)
     Jones (OH)
     Kagen
     Kanjorski
     Kaptur
     Keller
     Kennedy
     Kildee
     Kilpatrick
     Kind
     King (NY)
     Kirk
     Klein (FL)
     Kucinich
     Kuhl (NY)
     LaHood
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     LaTourette
     Lee
     Levin
     Lewis (CA)
     Lewis (GA)
     Lipinski
     LoBiondo
     Loebsack
     Lofgren, Zoe
     Lowey
     Lucas
     Lynch
     Mahoney (FL)
     Maloney (NY)
     Manzullo
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (NY)
     McCaul (TX)
     McCollum (MN)
     McCrery
     McDermott
     McGovern
     McHugh
     McIntyre
     McMorris Rodgers
     McNerney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Michaud
     Millender-McDonald
     Miller (MI)
     Miller (NC)
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (KS)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murphy, Tim
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Nunes
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Perlmutter
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Platts
     Poe
     Pomeroy
     Porter
     Price (NC)
     Pryce (OH)
     Rahall
     Ramstad
     Rangel
     Regula
     Reichert
     Renzi
     Reyes
     Rodriguez
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Ross
     Rothman
     Roybal-Allard
     Royce
     Ruppersberger
     Rush
     Ryan (OH)
     Ryan (WI)
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schwartz
     Scott (GA)
     Scott (VA)
     Serrano
     Sestak
     Shays
     Shea-Porter
     Sherman
     Shimkus
     Shuler
     Sires
     Skelton
     Slaughter
     Smith (NJ)
     Smith (WA)
     Snyder
     Solis
     Space
     Spratt
     Stark
     Stupak
     Sullivan
     Sutton
     Tauscher
     Taylor
     Terry
     Thompson (CA)
     Thompson (MS)
     Tiahrt
     Tiberi
     Tierney
     Towns
     Turner
     Udall (CO)
     Udall (NM)
     Upton
     Van Hollen
     Velazquez
     Visclosky
     Walden (OR)
     Walsh (NY)
     Walz (MN)
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Weller
     Wexler
     Whitfield
     Wicker
     Wilson (OH)
     Wilson (SC)
     Wolf
     Woolsey
     Wu
     Wynn
     Yarmuth
     Young (AK)

                                NAYS--94

     Aderholt
     Akin
     Bachmann
     Baker
     Barrett (SC)
     Biggert
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonner
     Brady (TX)
     Burgess
     Buyer
     Campbell (CA)
     Cannon
     Cantor
     Carter
     Conaway
     Cubin
     Culberson
     Davis (KY)
     Davis, David
     Deal (GA)
     Dreier
     Duncan
     Everett
     Fallin
     Feeney
     Flake
     Forbes
     Foxx
     Franks (AZ)
     Gallegly
     Garrett (NJ)
     Gingrey
     Hastert
     Hastings (WA)
     Hensarling
     Hoekstra
     Hunter
     Inglis (SC)
     Johnson, Sam
     Jordan
     King (IA)
     Kingston
     Kline (MN)
     Knollenberg
     Lamborn
     Latham
     Lewis (KY)
     Linder
     Lungren, Daniel E.
     Mack
     Marchant
     McCarthy (CA)
     McHenry
     McKeon
     Mica
     Miller (FL)
     Miller, Gary
     Musgrave
     Myrick
     Neugebauer
     Pearce
     Pence
     Pitts
     Price (GA)
     Putnam
     Radanovich
     Rehberg
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Sali
     Schmidt
     Sensenbrenner
     Sessions
     Shadegg
     Shuster
     Simpson
     Smith (NE)
     Smith (TX)
     Souder
     Stearns
     Tancredo
     Thornberry
     Walberg
     Wamp
     Weldon (FL)
     Westmoreland
     Wilson (NM)
     Young (FL)

                             NOT VOTING--8

     Brown (SC)
     Davis, Jo Ann
     Granger
     McCotter
     Meehan
     Miller, George
     Saxton
     Tanner


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (during the vote). Members are advised 2 
minutes remain in this vote.

                              {time}  1808

  So the bill was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

                          ____________________