[Congressional Record Volume 165, Number 62 (Wednesday, April 10, 2019)] [Senate] [Pages S2355-S2357] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] EXECUTIVE CALENDAR The PRESIDING OFFICER. The clerk will report the nomination. The legislative clerk read the nomination of Holly A. Brady, of Indiana, to be United States District Judge for the Northern District of Indiana. The PRESIDING OFFICER. The Senator from Iowa. 30th Anniversary of the Whistleblower Protection Act Mr. GRASSLEY. Mr. President, today marks the 30th anniversary of a very important law--the Whistleblower Protection Act. It is very important because people in government ought to listen to whistleblowers. They are very patriotic people. The law is a critical foundation for the whistleblower protections we have in place today. The Whistleblower Protection Act has helped to usher in a [[Page S2356]] new era at our Federal Agencies. Government employees who are aware of waste, fraud, and abuse can now step forward and do the right thing, and they can do it with the law on their side. As one of the original cosponsors of the Whistleblower Protection Act, I remember what things were like before that law was passed. I will give some examples, and these examples aren't pretty. Back in the 1980s, I used to say that the whistleblower's only hope was like the desperate Charge of the Light Brigade. There were rarely any survivors. At the time, the executive branch saw whistleblowers not as patriots but as threats. Agencies wouldn't even verbally acknowledge the importance of whistleblowers in making government accountable to the people. Our whistleblower laws had no teeth, so there was nothing to stop it from happening and nothing to provide any relief at all to the patriotic whistleblowers who were then experiencing retaliation. To give an idea of just how bad things were, let's start in 1984. A study conducted by the Merit Systems Protection Board found that nearly 70 percent of government employees who knew of fraud and impropriety wouldn't even report it and wouldn't say what they knew about it. They believed that no corrections would result if they did, and their No. 1 reason for nonreporting was fear of reprisal. The sitting special counsel from 1982 to 1986 said that if he were an attorney advising whistleblowers, he would tell them this: ``Don't put your head up, because it will get blown off.'' At the time, the Office of Special Counsel was part of a bigger organization that we refer to as the Merit Systems Protection Board. Instead of protecting whistleblowers, it protected the merit system--not individual employees, and, let me emphasize, certainly not whistleblowers. The special counsel's office would pursue only those cases it thought it could win. If a whistleblower came to it with a retaliation case that was difficult to prove, the whistleblower was simply out of luck. So the Whistleblower Protection Act, 30 years old, addressed all of these problems and then some. That law made the Office of Special Counsel into a separate body, and it firmly established that the Office of Special Counsel was there solely to protect employees, especially whistleblowers. In doing so, it gave whistleblowers a new and important ally. The law also established that the Office of Special Counsel should act, not just when it had an open and shut case but whenever it was likely that a prohibited personnel practice had occurred against a whistleblower. It made the Office of Special Counsel a chief defender of employees subject to prohibited personnel practices. The law addressed other problems as well. I remember back in the 1980s, the Office of Special Counsel had developed a disturbing practice of providing information on whistleblowers to Federal Agencies conducting personnel inquiries; as an example, people like Elaine Mittleman. Elaine worked at the Treasury Department. She went to the Office of Special Counsel alleging reprisal against her whistleblowing. When her case was rejected, she learned that the Office of Special Counsel had leaked negative information about her to the Office of Personnel Management to do her damage. The old Office of Special Counsel effectively ensured that Elaine was blacklisted from any other Federal employment. Thankfully, the Whistleblower Protection Act stopped that practice and stopped it cold. The act prohibited the Office of Special Counsel from responding to Agency personnel inquiries about Federal employees except in the most limited of circumstances. It also expanded the definition of a protected disclosure and made it easier for employees to show reprisal. Of course, the 1989 law wasn't perfect, and in the time since it was passed, Congress expanded it and strengthened the Whistleblower Protection Act in very important ways. In 2012, I was proud to serve as one of the original cosponsors of the Whistleblower Protection Enhancement Act. That legislation plugged several holes in the original law and made it clear that the executive branch can't use nondisclosure agreements to prevent whistleblowers from making protected disclosures. If Federal employees are required to sign a nondisclosure agreement, specific language has to be included in that agreement making it clear that whistleblowers can still report waste, fraud, and abuse. Wouldn't the taxpayers expect a Federal employee who knows about waste, fraud, and abuse to report that as a responsibility to their office and then not to be reprised against because they did? It is safe to say that, taken together, the Whistleblower Protection Act and the 2012 amendments have had a transformative effect on our Federal Agencies. Things are still hard for our whistleblowers in too many instances, and we still have a long way to go, but we have come a very long way since I first started working on these issues. By the numbers, more whistleblowers now report waste, fraud, and abuse, and they have the ability to fight retaliation. I hate to say this, but too often whistleblowers are retaliated against, even with respect or even in consideration of the Whistleblower Protection Act. In fiscal year 2017, to show progress and to show that the bill has made a difference, the Office of Special Counsel obtained 323 favorable actions, including stays, corrective actions, disciplinary actions, and systemic changes to Agency practices. That is an Agency record and a 16-percent increase over the previous year. Of those, 241 involved instances of whistleblower retaliation, and 44 involved stays with Agencies to protect employees from premature or improper personnel actions against them. One of those retaliation cases involved a Federal worker who reported an Agency official to her management and to the Office of Inspector General for suspected theft. In exchange for disclosure, the official who was reported demoted the worker to the lowest possible position she could. That is just one example to show you how patriotic people in the Federal employment who are whistleblowers--who just want government to do what the law requires or spend the money accordingly--get shafted as a result of just doing what you ought to do as a Federal employee: report waste, fraud, and abuse and stealing. This person had some help because, as I said, she was demoted to the lowest possible position that she could; that is, until the worker filed a complaint and the Office of Special Counsel investigated. Following the investigation of the Office of Special Counsel, the complainant was not only reinstated but given backpay and compensatory damages. Faced with punitive actions, including temporary suspension and a reassignment, the Agency official who had engaged in the retaliation decided to resign. That is just one example of how the Whistleblower Protection Act has made a difference. I could, of course, list many others. The Whistleblower Protection Act and its amendments have also had an important effect on congressional oversight. Whistleblowers are the eyes and ears inside the executive branch. In fact, when people come to my office explaining why they ought to be confirmed by the Senate, there are a couple of things I always tell them: No. 1, either you run your Department or it runs you; No. 2, you ought to listen to the whistleblower. Whether you are a little Agency with a couple of thousand employees or whether you are the Veterans' Administration with 350,000-some employees, you can't know what is going on down underneath you. When people tell you something is wrong, you ought to listen. Like I said, I have found it very helpful with congressional oversight. My own oversight efforts would not be possible without the courageous action taken by whistleblowers. For example, whistleblowers contacted my office during the Obama administration about criminals who should be ineligible for DACA but, due to an oversight by the Department, were still receiving benefits like work authorization. Scrutiny of the program led to more thorough recurrent vetting of the U.S. Citizenship and Immigration Services. I worked with a number of whistleblowers at the Department of Veterans Affairs who had the courage--and it takes courage--to stand up and do what is right. More recently, my office worked with Brandon Coleman after he was put on administrative leave for more than a [[Page S2357]] year and kept from running an addiction treatment program for veterans. It happens that Brandon's only ``mistake'' was to point out poor treatment of suicidal veterans. Eventually, after a concerted effort by my office, Senator Johnson's office, and the Office of Special Counsel, Brandon was provided a new position within the VA's Office of Accountability and Whistleblower Protection. That is how it should be done. Without the protections established by the Whistleblower Protection Act, Brandon's story might have turned out very differently. Without these protections, who knows how many other instances of waste, fraud, and abuse that we have been able to find and repair thanks to whistleblowers would be continuing now unabated? Now, make no mistake, we still have a ways to go to ensure that whistleblowers are valued as they should be valued and supported as they should be supported. I still hear from far too many whistleblowers who have done the right thing only to experience retaliation from their Agencies as a result. We in Congress, including this Senator, shouldn't be hearing those things at all. That is why continued oversight by Congress is so very important. Whistleblowers depend on us--you and me. All of our colleagues in this body ought to be listening to them. We ought to be supporting them and honoring them by following up on their concerns and taking action to fix serious problems when they bring them to our attention. I thank the whistleblowers who worked with my office over the years. They are truly patriots willing to put their job on the line, willing to put their profession on the line. We have come a long way since the Whistleblower Protection Act first passed in 1989. We owe it to them to build on the progress we made and to continue to improve upon our whistleblower laws for years to come. You can rest assured that I will be part of those ongoing efforts on this important anniversary of the Whistleblower Protection Act. I encourage my colleagues to reflect on the important role whistleblowers play in our government and to renew their commitment to the same. I yield the floor. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. SHELBY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered.