Lawmakers re-introduce whistleblower, ethics measures

House lawmakers debated measures Tuesday that would strengthen whistleblower protections, restrict "revolving door" employee movement between agencies and industry, and require senior officials to report meetings with lobbyists and others seeking to influence government actions.

Both the Whistleblower Protection Enhancement Act (H.R. 985) and the Executive Branch Reform Act (H.R. 984) were introduced in similar form in the last Congress, and were overwhelmingly approved in committee, only to be sidelined without reaching the floor for a vote.

Reps. Henry Waxman, D-Calif., and Tom Davis, R-Va., reintroduced the two bills with the hope that they will make better progress in the new Congress.

Witnesses from several good-government groups praised the whistleblower measure, highlighting language to extend protections to scientific, intelligence and transportation security employees. They also praised provisions requiring officials to look into the potential use of security clearance revocations as retribution, and to allow employees to pursue whistleblower complaints in court if the Merit Systems Protection Board is slow in processing them.

But the advocates said that, to have teeth, the bill would need to address the courts that have jurisdiction over whistleblower cases. By law, those cases can now be pursued only in the federal circuit court. Nick Schwellenbach, an investigator with the Project on Government Oversight, a Washington watchdog group, testified that the federal circuit's record of having decided two cases in favor of whistleblowers and 177 cases against illustrates the need for a change.

Rep. Todd Platts, R-Pa., co-sponsor of the bill, said he would introduce an amendment to allow consideration of cases in all judicial circuits. Tom Devine, legal director for the Government Accountability Project, said that without such a fix the issue would suffer a "broken record syndrome."

"This is an absolute test of wills between Congress and one particular court," Devine said.

Mark Zaid, an attorney who has represented whistleblowers, testified that government assertion of state secrets privilege, which argues that information cannot be revealed due to security considerations, can hamstring litigation on behalf of whistleblowers. He said federal agencies "will mislead, and arguably lie" in order to protect information, and once facts have been declared state secrets, they cannot be used in court to support an argument.

Zaid said the matter could be addressed by measures such as changing the jurisdictional court, training judges to more closely question the assertion of state secrets, or studying cases in which the privilege has been used and whether it turned out to have been justified.

During a panel to discuss the Executive Branch Reform Act, witnesses lauded the expansion of ethics reform beyond lobbying and members of Congress into the executive branch.

Like the measure presented last year, the bill would lengthen from one to two years the "cooling-off" period before individuals can influence decisions about, or lobby on behalf of, private interests as they move between the public and private sectors.

The legislation would also require senior officials to report quarterly on the "significant" contacts they had with parties seeking to influence their decisions, with such reports made available to the public. While lawmakers cited a 2002 controversy surrounding the participants of meetings with Vice President Dick Cheney during formulation of a national energy policy, the bill excludes reporting of contact with the president, vice president or their chiefs of staff.

Craig Holman, a lobbyist for the advocacy group Public Citizen, said the Office of Government Ethics should be given enforcement powers beyond the advisory role it now holds.

Rep. Bruce Braley, D-Iowa, questioned whether a mechanism exists for parties with business before the government to request and pursue the recusal of an official with a potential conflict of interest. Holman said no such mechanism exists, and that the best option might be to try and generate such pressure through a press campaign.

A markup for both bills is scheduled for Wednesday, and the committee is likely to vote on their passage.