Interview transcript

Terry Gerton Today is National Whistleblower Day, and we usually think about that with a focus on federal employees. You are making a case that federal contractors should also be protected here. What is happening or where are the inequalities between how federal employees are treated and how the contracting workforce is treated?

Tom Devine I think the most significant thing is that depending on the year, there’s between two and three times more federal contractors who are spending taxpayer funds than civil service employees. And that’s gone up sharply with over $4 trillion in new spending since the pandemic and the climate change bill, most of which is going to contractors rather than that federal civil service employees to implement. So it’s always been kind of an under the radar, but more significant aspect of government accountability than the conventional civil service system. Federal contractors have one whole level stronger rights than government civil service employees do and because they have access to court and can seek justice from a jury, a jury of the citizens whom they’re purporting to defend, when they risk their professional lives. Civil service employees have to go to administrative judges who don’t have any political independence. They’ve never had very much. They’ve always at least had the appearance of some sort of independence. Now the civil service merit system enforcement is explicitly an at-will scenario. Means they can be hired or fired at will with any or no reason. And that means that basically federal employees have the same level of rights as people in a political spoils system, completely vulnerable to patronage at this stage. And they don’t really have any enforceable rights under the Whistleblower Protection Act. They’re still there on paper, but there’s no credible enforcement. Contractor employees are a level higher. If they don’t get relief from the agency inspector general where the spending was connected, They can go to court and have a jury trial to seek justice. And that’s a significant improvement. But despite that, both laws are dysfunctional. The federal civil service law is absolutely hopeless at this point. It’s basically an honor system for any of the merit system principles that are in the law. There’s just no independent enforcement. And for the contractor law, it was breakthrough pioneer law when it was first passed in 2012, but any remedial law that’s seeking to challenge abuses of power by the power structure, power system, is going to require regular maintenance. There’s an inevitable, relentless, basically unrestrained counter attack against the rights that are used to neutralize abuses of the power. And that’s happened with the government contractor bill. At this point, although it’s got an impressive structure, just due to all the loopholes that have been carved out in it, it’s almost irrelevant. And even the impressive structure has suffered some deep wounds. So we’re just very encouraged that a bipartisan mandate in Congress for whistleblower protection has emerged in the context of government contractors. We decided that it was necessary to trying to uphold, upgrade those laws when all the new spending came in with the pandemic. We thought, well, this is gonna create an unprecedented challenge for accountability.

Terry Gerton Tom Devine is the legal director for the Government Accountability Program. So, Tom, you talk about the new laws that have been introduced. Both the House and the Senate have unanimously approved contractor whistleblower reforms, but there are some differences across those bills. What are the key points that you’re watching here?

Tom Devine The key points are where there’s unanimous agreement to help the whistleblowers more effectively. And that’s really an exciting development. After the Ukraine impeachment hearings, whistleblower protection became a partisan issue with President Trump opposing all the whistleblowers, saying one of them should have been hung, the one who sparked the hearings on the Ukraine. And what we’ve seen is an evolution with the contractor whistleblower rights bill. Initially, there was just only Democratic support for it. Jackie Speier in the House and Kamala Harris in the Senate. There are no Republicans who are connected with it. Then it shifted to Elizabeth Warren (D-Mass.) being the champion for it in the senate, but no Republicans in favor. That changed last Congress when we got unanimous support in the Homeland Security and Governmental Affairs Committee in the Senate to pass the same legislation that had been a partisan impasse beforehand. And it was blocked on the Senate floor because of a hold over intelligence community protections. And the Senate Intelligence Committee didn’t accept that provision. This Congress, we not only got a unanimous vote again in the Senate committee, the Senate intelligence committee accepted the intelligence community contractor shield, and it passed the whole Senate unanimously. And last week, of the legislation passed the House unanimously, but it carved out the intelligence community protections. And so that distinction will have to be resolved. But what there’s unanimous mandate for by both chambers in Congress is protecting not only employees, but the government contractors themselves, if they’re pressured by the government to do the wrong thing or to retaliate against their own employees who are blowing the whistle. It’s going to be protecting international contracts, not just domestic ones, as under the current law. It will protect the refusal to violate the law so whistleblowers can walk the talk and not just make noise. It restores court access in some parts of the country where the courts have created a loophole and said that all you have is protection from an inspector general. We generally don’t have the time for whistleblower protection. And if that doesn’t work, you can go back to the company and ask them to change their minds. And so that pretty much canceled out any enforcement for the contractor law. Well, this legislation would overturn that. The legislation would empower the Office of Inspector General at an agency to seek prosecution of government officials who sought to have contractors bully the whistleblowers within their ranks. This would basically create America’s strongest whistleblower laws for all government contractors, except potentially the intelligence community. There’s a unanimous mandate for the rest of federal spending outside of the civil service and we’re rolling up our sleeves to see if we can cover the intelligence folks too.

Terry Gerton The intelligence community seems like a big issue here. How optimistic are you about being able to resolve it so that they’re included in both and not excluded in both?

Tom Devine I think that the intelligence community challenges are a lot broader than just covering contractors. The rights are really indefensibly weak for government employees in the intelligence community. And our hope is that there can be a comprehensive reform effort for the intelligence community that’s parallel to the more conventional aspects of the federal labor force and the contractor labor force. So we’d like to get that on a separate track and consolidate of the breakthrough improvements in rights that there is a unanimous mandate for.

Terry Gerton Moving this kind of legislation really does require organizations like yours to play the long game. You’ve made tremendous progress here, but this Congress is running out of time. Do you think that they may get this passed before they have to install a new Congress at the beginning of the year?

Tom Devine They really should get it passed when there’s so much support for something that could make so much difference for the taxpayers. Like over 200 organizations, including the National Taxpayers Union, the Taxpayer Protection Alliance, all the good government groups have united in their support of this legislation. And when you’ve got, you can make that much difference for reforms that are no longer politically controversial, it would be a real shame to wait. But if they do reach an impasse over the ISE, the intelligence provisions, we’re not going to stop. We’ll roll up our sleeves and get started right again in January after the midterms. And you’re right, it is a marathon struggle to get free speech rights. The last version of the Civil Service Whistleblower Protection Act, the Whistleblower Protection Enhancement Act, took us 13 years to pass. And we were so close it was like, you know, the Odyssey, where you’re almost reaching the promised land and then blown back into sea numerous times. But we’re not gonna back off and I know we’re going to achieve this.

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