In January of 2009, federal employee whistleblowers were on the verge of obtaining effective legal protections. For years federal employees were blocked from filing their whistleblower cases in federal court. Instead, their fate rested in the hands of a three-person politically appointed Board (officially known as the Merit Systems Protection Board), always controlled by the sitting President.
Since that Board was created in 1978, its harsh anti-whistleblower reputation was well established, as was its propensity to silence whistleblowers who dared to criticize the President who appointed its members. In 2009 federal employee whistleblowers came within one vote of obtaining effective due process rights. One Senator blocked that reform. Her name was Susan Collins, the Senator from Maine.
In January of 2009, change was in the air. Candidate Barack Obama had signed a survey agreeing to give federal employee whistleblowers the right to file cases in federal court. Candidate Obama was now President Obama, and he was willing to sign such reform legislation. Likewise, in 2007 the House of Representatives, with strong bi-partisan majorities, had voted to permit federal employees the right to file their whistleblower cases in federal court. The House of Representatives was on-board with granting federal employees effective protections.
Shortly after Obama became President, he proposed a financial stimulus bill to help get America out of a deep recession. The spending bill was first introduced in the House of Representatives, where the need for federal oversight of the billions in proposed spending was debated. Bi-partisan Members of the House recognized the need for effective whistleblower protections, so employees who witnessed fraud in the billions of dollars being allocated could report these crimes without fear of losing their jobs.
A whistleblower reform amendment was proposed by Patts, a Republican Congressman from Pennsylvania. On the floor of the House, he explained why his bi-partisan bill was badly needed:
“Mr. Chairman, the amendment that I’m offering with my colleague from Maryland (Mr. Van Hollen) would insert the text of the Whistleblower Protection Enhancement Act–H.R. 985 in the last session–into the underlying legislation. H.R. 985 passed by a bipartisan vote of 331-94 in 2007. This amendment strengthens the inadequate protections currently afforded to Federal employees who report illegalities, gross mismanagement and waste, and specific dangers to the public health and safety. . . Federal employees responsible for overseeing the hundreds of billions of dollars in spending in this bill, however, will remain inadequately protected unless this amendment is adopted.”
The Platts amendment was not controversial. It passed by voice vote and federal employee whistleblower rights were included as part of the Obama-endorsed stimulus bill. Given the support from President Obama, and the overwhelming bipartisan endorsement from the House, it looked as if this simple but essential reform would pass.
Then stepped in Senator Susan Collins from Maine. By a twist of fate, her vote was needed to pass the stimulus bill. She held the power and wielded it. As reported in the press and confirmed by all sources, she demanded that Obama and the Democrats in the Senate agree to strip out the federal employee whistleblower amendment from the stimulus bill. Her demands were met, and federal employee whistleblowers lost their best chance to obtain due process rights.
The taxpayers lost. How much federal money was wasted because the federal employees responsible for reporting frauds, ensuring that proper contracts were granted, and policing the billions of dollars in federal spending authorized under the law, had no effective way to report waste, fraud and abuse?
Senator Collins’ decision to spike the federal employee whistleblower reform law continues to radically undermine whistleblower rights even today. Since Donald Trump was elected President, the Board with the power over federal employee whistleblowers has been left without a quorum. Thousands of whistleblower cases languish in an endless backlog. The few whistleblower rights enjoyed by federal employees cannot be enforced.
Undermining the ability of federal employee whistleblowers to have their cases heard by judges and juries not only hurts the taxpayers. It threatens the health and safety of the American people. The whistleblower law was designed to ensure that federal workers could report threats to public health, like those caused by an inadequate federal response to a pandemic. Due to Senator Collins’ successful spiking of the needed reform, federal employees who report health safety problems cannot obtain protections from federal judges or their peers who sit in juries and decide cases. Instead, numerous reports of federal workers being retaliated against for reporting COVID-19 related abuses lack due process, and some have even resigned from federal service.
Because federal employee whistleblowers cannot bring their cases to federal district court, they effectively have no rights whatsoever under the Whistleblower Protection Act. This must be fixed. Under federal law, state, local and county government workers can file whistleblower cases in federal court. Almost all private sector employees can file whistleblower cases in federal court – including everyone from Wall Street bankers to truck drivers. Federal employees have been left out. This must end.
The voters of Maine must demand that if Susan Collins is re-elected Senator, she will endorse the right of federal employees to avoid the Merit Systems Protection Board and file their whistleblower cases directly in federal court. Senator Collins made a terrible mistake in 2009 by blocking this needed reform. She must be held accountable.