House strips out protection for intelligence officials in whistleblower bill

The House last week quickly approved legislation aimed at beefing up protections for federal workers who point out waste, fraud and abuse in the government, but passed a version that stripped out Senate language offering these "whistleblower" protections for intelligence officials.

The Whistleblower Protection Enhancement Act, S. 743, was passed by unanimous consent on Friday and with little debate, and after an agreement was reached between House Republicans and Democrats that the language related to intelligence officials should be taken out.

The legislation was brought up quickly on Friday by Rep. Jerry Lewis (R-Calif.), along with two other bills that received only token debate. During that brief floor debate, Rep. Chris Van Hollen (D-Md.) quickly asked Lewis if the bill was the amended version.

Lewis replied that this was a "very extensive amendment," and said he understood that there were no objections, but he did not discuss the nature of the amendment.

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The bill as passed by the House completely removes what had been Title II of the bill, which dealt only with protections for officials in the intelligence community. Broadly, it would have set up whistleblower protections for all intelligence officials that are similar to those that exist for FBI employees, and would have set up a process in the executive branch for reviewing whether security clearances were denied or revoked because of what should be protected disclosure of information under the whistleblower laws.

A House aide told The Hill that both parties agreed language related to intelligence officials "should not be included in the bill."

Another aide said the decision was made to pull the language due to concern about how exactly to marry the possibly conflicting issues of keeping national security secrets, and affording officials with protections when they decide to blow the whistle on questionable activities within the government.

The second aide said the decision was coordinated not only between the two parties in the House, but also with the Senate and White House, which should make it possible for the Senate to approve the House-amended bill.

The Senate passed its version of the bill, from Sen. Daniel Akaka (D-Hawaii), in May by unanimous consent. Because both the House and Senate have been holding pro forma sessions until the November election, the Senate has not given any public indication of when it might decide to take up the legislation.

Despite the coordinated effort to tweak the bill, there were signs that some members of the House want to continue looking for ways to protect intelligence officials from retaliation in cases where they reveal waste or abuse of federal money or certain violations of federal law.

In a statement released on Friday, for example, Oversight and Government Reform Committee ranking member Elijah Cummings (D-Md.) said he would continue to press for this addition, as well as language that allows for court review of whistleblower cases, which was also removed from the House bill.

"We need to provide meaningful rights to whistleblowers in the intelligence community and we need to amend the law to allow whistleblowers the ability to go to court and have their case heard by a jury," Cummings said. "I know this bill represents a compromise based on the political realities of today. But the fight is not over.

"I will continue to fight for the protections that are not in this bill and hope that my colleagues on both sides of the aisle will join me in that fight."

As passed by the House, the whistleblower bill is mostly aimed at clarifying the intent of Congress to maintain strong protections for federal officials, and is in part a response to close what Congress argues are "loopholes" that have developed over the years as the law has been interpreted by the courts.

After the House approved the bill, Rep. Todd Platts (R-Pa.) said decisions by the Federal Circuit Court in particular "undermined congressional intent" with respect to the original Whistleblower Protection Act of 1989. However, Platts said he fears that additional loopholes could still open up and thwart the intent of Congress. For example, he said new "secrecy" regulations issued by the Department of Homeland Security may undermine whistleblower protections.

Despite these potential problems, however, advocates praised the House's passage of the bill, and said the legislation would make it easier for federal workers to identify waste and abuse in the government without fear of reprisals. Among other things, the bill would create whistleblower ombudsmen in Inspector General offices.

"By ensuring passage of S. 743 through unanimous consent today, House leaders correctly recognized that whistleblower protection is taxpayer protection," National Taxpayers Union Executive Vice President Pete Sepp said on Monday. "Giving watchdogs inside the federal bureaucracy more teeth to defend themselves will pay major dividends for overburdened taxpayers in the future."

"Whistleblower protection should not be a partisan issue," said David Williams, president of the Taxpayers Protection Alliance. "Hopefully with the passage of S. 743, the Whistleblower Protection Enhancement Act by the House of Representatives, whistleblowers will finally get the protection they deserve."

— This story was updated at 3:29 p.m. to reflect that the Senate is expected to support the House-passed bill.