Whistleblower Protection Enhancement Act (S. 743)

Floor Speech

By:  Todd Platts
Date: Sept. 28, 2012
Location: Washington, DC

Mr. PLATTS. Mr. Speaker, I rise today in support of the Whistleblower Protection Enhancement Act, S. 743, and, as a long-time sponsor and cosponsor of similar legislation this session and in past sessions, hope to clarify the intent of the application of the bill's provisions in two important ways.

By way of background, I first introduced a version of this legislation in 2003, H.R. 3281, to respond to a series of decisions by the Merit Systems Protection Board, MSPB, and the Federal Circuit Court. Those decisions undermined Congressional intent with respect to the original Whistleblower Protection Act of 1989.

Specifically, Congress intended that ``any'' protected disclosure of waste, fraud, and abuse by a federal employee be covered by the law. As interpreted by the MSPB and the Federal Circuit Court, however, loopholes began to develop. Congress strengthened the law in 1994, but decisions by the MSPB and Federal Circuit Court continued to undermine the intent of Congress.

A mark-up of my original legislation was held in 2004. A mark-up of a re-introduced version of the bill, H.R. 1317, was held in 2006. A version introduced by Representative Henry Waxman and myself, H.R. 985, was passed by the House in 2007. At the core, all of these bills--and their Senate versions--restored the Congressional intent of the original Whistleblower Protection Act by plugging the loopholes that had developed.

The bill before us today makes the same attempt at restoring Congressional intent, but--if interpreted incorrectly--I fear the possibility of two more loopholes opening up.

First, agencies must not be allowed to circumvent whistleblower protections through so-called ``secrecy'' regulations, such as a new category of information (labeled ``Sensitive Security Information'') created by the Department of Homeland Security. Whistleblower law understandably already exempts from whistleblower protections information which is classified or ``specifically prohibited by law'' from release. Classified information is information that is kept secret by Executive Order, not a hybrid category of information created by agency regulation like ``Sensitive Security Information.'' Moreover, ``prohibited by law'' has long been understood to mean statutory law and court interpretations of those statutes, not to agency rules and regulations.
If the Federal Circuit Court broadens the ``prohibited by law'' exemption to include anything that an agency tries to keep secret under any of their regulations, a new loophole could be opened up that would substantially undermine Congressional intent in passing this bill. It is therefore important to once again make it clear: ``Prohibited by law'' has long been understood to mean statutory law and court interpretations of those statutes, not to agency rules and regulations. Any exceptions to these rights must be created by Congress, and Congress must act with specificity. That has been the law since 1978, and it continues to be the law.

Second, it must be understood that those whistleblowers who have been waiting for this bill to be enacted are protected by its provisions. As stated by the Senate Committee on Homeland Security and Governmental Affairs in its report accompanying this bill, S. Rpt. 112-155:

The Committee expects and intends that the Act's provisions shall be applied in OSC [Office of Special Counsel], MSPB, and judicial proceedings initiated by or on behalf of a whistleblower and pending on or after that effective date [30 days after the date of enactment of the bill]. Such application is expected and appropriate because the legislation generally corrects erroneous decisions by the MSPB and the courts; removes and compensates for burdens that were wrongfully imposed on individual whistleblowers exercising their rights in the public interest; and improves the rules of administrative and judicial procedure and jurisdiction applicable to the vindication of whistleblowers' rights.