Whistleblowers in Congress need protection: Column Congressional employees who report wrongdoing can be punished for telling the truth.

Debra S. Katz and Danielle Brian | USA TODAY

When the House Select Committee on Benghazi fired Maj. Bradley Podliska — an investigator for the committee who says he was terminated because he spoke up about the committee’s targeting of former secretary Hillary Clinton — it exposed Congress’ shameful double standard when it comes to whistleblowers. While Congress has passed dozens of laws prohibiting retaliation against whistleblowers in both the private sector and the executive branch, there’s still a glaring lack of protections for staffers who work in the House and Senate.

While all the facts surrounding Maj. Podliska’s claims are not yet public and have been refuted by Republican Rep. Gowdy and others on the committee, the following is undeniable: legislative staffers who witness politically motivated abuse of power by members of Congress, generally resulting in fraud or waste of taxpayer money, must keep their mouths shut or risk being fired.

This inequity defies sound public policy. It also flies in the face of Rep. Trey Gowdy's assertions during the Benghazi hearing that "Our country is strong enough to handle the truth, and our fellow citizens expect us to pursue the truth wherever the facts take us."

One obvious way for members of Congress to encourage transparency in government is to stop making lofty speeches and instead pass laws that provide legal protections to congressional whistleblowers.

When Congress enacted federal laws to protect employees from discrimination based on race, gender, national origin, religion and disability beginning in the mid-1960s, it exempted itself from those laws. In 1995, Congress passed the Congressional Accountability Act (CAA) to finally provide legal protection for its employees from discrimination, but failed to subject itself to the whistleblower laws that protect executive branch employees from coerced political activity and retaliation for reporting fraud, waste or abuses of power.

With these exemptions, Congress drastically reduced the likelihood that those who witness wrongdoing within the legislative branch will come forward. This was not inadvertent and Congress' failure to hold itself to the same standards as it holds other employers has not received enough attention.

To be clear: while Rep. Gowdy is a Republican and the official his committee is investigating is a Democrat running for president, this is no partisan issue. Both Democrats and Republicans have called for whistleblower protections for legislative branch employees at one point or another. In 2009, Republican Sen. Chuck Grassley of Iowa argued that Congressional whistleblowers “are often the only ones who know the skeletons hidden deep in the closets,” and that “Congress needs to practice what it preaches.” Sadly, support from both sides for Congressional whistleblowers seems to occur only when it is convenient, with neither party putting forth lasting effort though Sen. Grassley's staff has advised the media that the senator intends to reintroduce legislation to extend whistleblower protections for Congressional employees.

Executive branch workers make around 1,500 reports alleging whistleblower retaliation each year to the Office of Special Counsel. Many of these reports bring urgently needed attention and reform to government services. More than one hundred reports by whistleblowers in the Veterans Administration have helped expose scandalous failures in our medical care of veterans; TSA whistleblowers have brought to light security lapses in major American airports; and Air Force whistleblowers helped put an end to the “gross mismanagement” Carolyn N. Lerner, the head of the Office of Special Counsel, identified at Dover Air Force Base mortuary involving shameful treatment of the remains of American soldiers. There is little reason to doubt that like these executive branch employees, legislative workers also witness significant waste of resources and abuse of government power. Indeed, the Office of Compliance (OCC), a non-partisan agency established to administer and enforce the CAA, reports that it receives numerous inquiries from legislative employees about their rights as whistleblowers. It must tell these potential whistleblowers that federal law grants them none.

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By passing laws that prohibit retaliation against whistleblowers in Wall Street firms, nuclear power plants, rail yards, food processing facilities and numerous other workplaces, Congress has recognized that employees have a vital role to play in protecting the public good. Employees are, in a very real sense, the "eyes and ears of the public." The principles that guide these whistleblower protections apply with equal or greater force to the legislature itself.

Abuses of power within the legislative branch impact taxpayer spending, the effectiveness of democracy and erode public trust in government. The American people deserve the benefit of the courage and insight of legislative whistleblowers. Congress should follow the repeated recommendation of its OCC and immediately act to extend whistleblower protections to its own employees. If it does not, the public should demand to know why.

Debra S. Katz is a founding partner of Katz, Marshall and Banks, LLP. She has litigated whistleblower protection cases for over 30 years. Danielle Brian is Executive Director of the Project on Government Oversight.

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