Congressional Record: March 14, 2007 (House)
Page H2510-H2515
PROVIDING FOR CONSIDERATION OF H.R. 985, WHISTLEBLOWER PROTECTION
ENHANCEMENT ACT OF 2007
Mr. HASTINGS of Florida. Mr. Speaker, by direction of the Committee
on Rules, I call up House Resolution 239 and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 239
Resolved, That at any time after the adoption of this
resolution the Speaker may, pursuant to clause 2(b) of rule
XVIII, declare the House resolved into the Committee of the
Whole House on the state of the Union for consideration of
the bill (H.R. 985) to amend title 5, United States Code, to
clarify which disclosures of information are protected from
prohibited personnel practices; to require a statement in
nondisclosure policies, forms, and agreements to the effect
that such policies, forms, and agreements are consistent with
certain disclosure protections, and for other purposes. The
first reading of the bill shall be dispensed with. All points
of order against consideration of the bill are waived except
those arising under clause 9 or 10 of rule XXI. General
debate shall be confined to the bill and shall not exceed one
hour and 20 minutes, with one hour equally divided and
controlled by the chairman and ranking minority member of the
Committee on Oversight and Government Reform and 20 minutes
equally divided and controlled by the chairman and ranking
member of the Committee on Homeland Security. After general
debate the bill shall be considered for amendment under the
five-minute rule. An amendment in the nature of a substitute
consisting of the text of the bill, modified by the
amendments recommended by the Committee on Oversight and
Government Reform now printed in the bill, shall be
considered as adopted in the House and in the Committee of
the Whole. The bill, as amended, shall be considered as the
original bill for the purpose of further amendment under the
five-minute rule and shall be considered as read.
Notwithstanding clause 11 of rule XVIII, no further amendment
to the bill, as amended, shall be in order except those
printed in the report of the Committee on Rules accompanying
this resolution. Each further amendment may be offered only
in the order printed in the report, may be offered only by a
Member designated in the report, shall be considered as read,
shall be debatable for the time specified in the report
equally divided and controlled by the proponent and an
opponent, shall not be subject to amendment, and shall not be
subject to a demand for division of the question in the House
or in the Committee of the Whole. All points of order against
such further amendments are waived except those arising under
clause 9 or 10 of rule XXI. At the conclusion of
consideration of the bill for amendment the Committee shall
rise and report the bill, as amended, to the House with such
further amendments as may have been adopted. The previous
question shall be considered as ordered on the bill and
amendments thereto to final passage without intervening
motion except one motion to recommit with or without
instructions.
Sec. 2. During consideration in the House of H.R. 985
pursuant to this resolution, notwithstanding the operation of
the previous question, the Chair may postpone further
consideration of the bill to a time designated by the
Speaker.
The SPEAKER pro tempore (Mr. Pastor). The gentleman from Florida (Mr.
Hastings) is recognized for 1 hour.
{time} 1245
Mr. HASTINGS of Florida. Mr. Speaker, for purpose of debate only, I
yield the customary 30 minutes to my good friend and colleague from
Florida, Mr. Diaz-Balart. All time yielded during consideration of the
rule is for debate only.
Mr. Speaker, I yield myself such time as I may consume.
(Mr. HASTINGS of Florida asked and was given permission to revise and
extend his remarks.)
Mr. HASTINGS of Florida. Mr. Speaker, House Resolution 239 provides
for consideration of H.R. 985, the Whistleblower Protection Enhancement
Act of 2007 under a structured rule. The rule provides 1 hour and 20
minutes of general debate with 1 hour equally divided and controlled by
the chairman and ranking minority member of the Committee on Oversight
and Government Reform. The remaining 20 minutes will be equally divided
and controlled by the chairman and ranking minority member of the
Committee on Homeland Security.
The rule waives all points of order against consideration of the bill
except clauses 9 and 10 of rule XXI. The rule provides that the
amendment in the nature of a substitute, consisting of the text of the
bill, modified by the amendments, recommended by the Committee on
Oversight and Government Reform, and printed in the bill, shall be
considered as adopted.
The bill, as amended, shall be considered as an original bill for the
purpose of amendment and shall be considered as read. The rule waives
all points of order against provisions in the bill, as amended.
Now, the rule makes in order five amendments, three Republican
amendments and two Democratic, which are printed in the Rules Committee
report accompanying the resolution.
The amendments may be offered only in the order printed in the
report, may be offered only by a Member designated in the report and
shall be considered as read and shall be debatable for the time
specified in the report equally divided and controlled by the proponent
and an opponent.
All points of order against amendments, except for clauses 9 and 10,
are waived.
Finally, the rule provides for one motion to recommit with or without
instructions.
Mr. Speaker, today is an important day for the more than 2.7 million
Federal employees who show us, day in and day out, their commitment to
improving our great country. It is an important day because the House,
in bipartisan cooperation, is closing the loopholes which permitted
retaliation against Federal employees who have reported unlawful fraud,
corruption, incompetence and abuse of power.
Today is an important day because the House is saying loud and clear
that whistleblower protection is an essential component of government,
of government accountability and of government fiscal responsibility.
Throughout our history, whistleblowers have played integral roles in
improving our government and holding it accountable for its negligence.
From Shawn Carpenter to Joseph Darby to Mark Felt, and everyone in
between, whistleblowers have faced harsh penalties from those who would
prefer that what they know is never shared with the public. They have,
nevertheless, put their careers on the line, and in some instances even
their lives, to do what they knew was the right thing to do. Their
courage is to be commended and their conviction embraced.
When history judges this current administration, I believe it will
look down upon the drastic and despicable actions taken by this
administration, which have stifled those seeking to speak truth to
power. These actions are, indeed, some of the very reasons why this
bill is so desperately needed.
For example, in 2005, the Bush administration officials placed a gag
on a senior NOAA official who was scheduled to give an interview
arguing that global warming exists and has contributed to greater and
stronger hurricane activity. Three weeks later, Hurricane Katrina made
landfall, first in my State of Florida, and then in Louisiana and
Mississippi and Alabama, killing hundreds and leaving hundreds of
thousands homeless, jobless and ill.
How can we forget former CIA operative Valerie Plame? Her life, and
the lives of others, were placed in jeopardy after the Vice President's
chief of staff revealed her name to a reporter in retaliation for her
husband, former Ambassador Joe Wilson, revealing that the
administration lied about the existence of weapons of mass destruction
in Iraq and where they were trying to retrieve uranium from Africa.
When the Bush administration hasn't been able to directly punish
whistleblowers, it has simply tried to unilaterally change the law.
Just this past September, after a senior Environmental Protection
Agency scientist revealed that the administration had purposefully
misled the public regarding the air safety at Ground Zero following the
attacks of September 11, the Bush administration issued an executive
order declaring that EPA employees are no longer covered by Federal
whistleblower protections. That is outrageous.
These three high-profile cases, and there are a great deal more,
these three capture only a small snapshot of the problems in the
current administration. More importantly, they highlight the need for
extended protection across all agency lines to Federal whistleblowers.
Unfortunately, for nearly the last decade, Federal whistleblowers
have received nothing more than lip service. Let me make it very clear,
I said for the last decade, that includes the previous administration
and this one. Even when the House drafted legislation in 2002
establishing the Department of Homeland Security, it failed to
[[Page H2511]]
include whistleblower protections for DHS employees.
Now, I am proud that I was the author of the amendment which extended
these protections and was the only Democratic amendment adopted by the
House during consideration of the legislation. The protection of
whistleblowers in recent years has unfortunately garnered only lip
service. Today, the House is backing up these words with real action
that protects our 2.7 million Federal workforce.
I close by noting that this bill is not perfect. That is why the
Rules Committee has made five amendments in order, the majority of
which, I might add, are going to be offered by our colleagues, the
Republicans, on the other side.
Democrats are proud to continue our efforts to work in a bipartisan
manner, and to provide the minority with many opportunities to improve
already good legislation.
General Leave
Mr. HASTINGS of Florida. Mr. Speaker, I ask unanimous consent that
all Members may have 5 legislative days to revise and extend their
remarks during debate on House Resolution 239.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Florida?
There was no objection.
Mr. HASTINGS of Florida. Mr. Speaker, I reserve the balance of my
time.
Mr. LINCOLN DIAZ-BALART of Florida. I would like to thank my friend
from Florida for the time.
Mr. Speaker, I yield myself such time as I may consume.
Congress has the constitutional duty to oversee the executive branch.
In order to discharge our constitutional oversight responsibility,
Congress depends on information obtained through agency reports and
direct communication from Department heads. However, we also depend on
information provided directly from employees within the agencies who
are witnesses to the misuse of taxpayer dollars and alert Congress of
the possible corruption or incompetence in management.
In 1989, Congress passed the Whistleblower Protection Act in an
effort to strengthen statutory protections for Federal employees who
assist in the elimination of fraud, waste, abuse, illegality or
corruption.
H.R. 985 would modernize and expand this protection to Federal
employees, with added whistleblower protection.
For example, the bill would extend protection to FBI agents, CIA
agents, employees of the Defense Intelligence Agency, the National
Geospatial Agency and the National Security Agency.
I think it is important to have whistleblower protection for the
intelligence community. I would like to point out, however, that
Congress has already passed such legislation. In 1998, Congress passed
the Intelligence Community Whistleblower Protection Act to encourage
the reporting to Congress of wrongdoing within the intelligence
agencies.
In crafting the 1998 legislation, Congress sought to balance the need
for information with national security requirements, giving
intelligence community whistleblowers access to Congress but through
the intelligence committees.
Yesterday, the Rules Committee denied the ranking member of the
Intelligence Committee, Mr. Hoekstra, from offering an amendment
striking section 10 of the bill. Section 10 conflicts with the
provisions of the existing Intelligence Community Whistleblower
Protection Act of 1998.
The amendment, I believe, should have been made in order. National
security is obviously one of the most important issues that we deal
with. Before we make changes to how Congress handles intelligence
oversight, we should have a full and complete debate on that particular
provision. We could have done that if the majority had made the
Hoekstra amendment in order.
Under the bill, defendants in whistleblower cases will now be able to
make their cases to any Federal district court if the Merit Systems
Protection Board does not take action within 180 days.
Part of this provision will allow claims to be processed on a more
timely basis than they are now. However, there are possible problems
with the provision.
{time} 1300
Yesterday, Oversight and Government Reform Committee Ranking Member
Davis asked the Rules Committee that his amendment be made in order.
His amendment sought to retain uniformity in the consideration of
whistleblower cases in the Federal courts by keeping in place the
current requirement that all whistleblower appeals go through the
United States Court of Appeals for the Federal Circuit, rather than
opening up appeals to all circuits.
Without the amendment, Federal employee whistleblowers could end up
possessing a different set of rights and protections, depending on
where they file their claim. However, unfortunately, the majority
decided to close down the debate process on that issue, and refused to
allow the House to debate that very important and meaningful amendment.
I believe the majority should have made those amendments, the
Hoekstra amendment and the Davis amendment, in order, along with other
important amendments brought before the Rules Committee.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS of Florida. Mr. Speaker, I yield myself such time,
before yielding to my good friend and colleague on the Rules Committee,
only to respond to my friend from Florida regarding an amendment that
was not made in order of the ranking member of the Intelligence
Committee.
I serve on that committee, and one amendment that was made in order
contemplates everything that the ranking member of the Intelligence
Committee might have provided in the amendment that he sought.
Quite frankly, I think Mr. Tierney's amendment, which we will have an
opportunity to debate here on the floor, will give a full exploration
of those matters having to do with whistleblower concerns in the
intelligence community. So I commend that to my colleague and all here
in this body.
Mr. Speaker, I am very pleased to yield to a new Member, who is not
so new now, to the Rules Committee, my good friend, Mr. Arcuri from New
York. I yield to him 4 minutes.
Mr. ARCURI. Mr. Speaker, I thank my good friend and colleague from
the Rules Committee, the gentleman from Florida, for yielding.
Mr. Speaker, accountability is a word often used but seldom
implemented. For the last 12 years it is as if Congress forgot one of
its principal responsibilities is to demand accountability from the
administration and protect the American people from waste, fraud and
abuse.
The Whistleblower Protection Enhancement Act, which this rule
provides consideration for, will provide additional transparency and
accountability for the way the Federal Government spends tax dollars of
the hardworking Americans.
It is no secret that the only way we can truly gather firsthand
accounts of instances where waste, fraud and abuse occur is from the
people on the inside, the Federal employees. Unfortunately, not all
Federal employees are currently protected from being fired if they
unmask corruption or other fraudulent activities going on inside the
administration.
This legislation goes right to the heart of the issue by extending
much needed whistleblower protections to Federal Government employees
working on national security, government contractor employees and
transportation security employees, including baggage screeners at our
airports. It only makes sense that Federal employees, especially those
who have undergone extensive background investigations, obtained
security clearances and handled classified information on a routine
basis, be afforded the same rights and whistleblower protections as all
other Federal employees.
In addition, this legislation takes some very important steps. It
would abolish the U.S. Circuit Court of Appeals for the Federal
Circuit's exclusive jurisdiction for overhearing whistleblower appeals
cases, taking away its Supreme Court-like jurisdiction and allowing the
appropriate Federal appeals courts in the respective circuit where the
incident took place to hear such cases.
[[Page H2512]]
For instance, if the instance of whistleblowing were to occur in New
York, in my district, that is the Second Circuit. The initial decision
rendered by the Second Circuit should be appealed in the Second
Circuit. It should not be required to come to the Federal Circuit here.
The current appeals structures for hearing whistleblower cases not
only places a hefty financial burden on individuals who would have to
travel from across the country to D.C. just to have their appeal heard,
it also provides a disservice to our Nation's legal system by
overburdening one court.
As a former district attorney, I know from experience that having the
ability to draw on decisions from similar cases rendered from different
courts around the country would greatly improve our legal system. It
would benefit all parties involved, and further enhance our Nation's
exceptional legal system. Further, by allowing other Federal circuit
appellate courts to hear whistleblower appeal cases increases the
opportunity for those cases to be heard by the United States Supreme
Court.
Mr. Speaker, it is time to level the playing field for all Federal
employees who have the courage to stand up for the American people.
I urge my colleagues on both sides of the aisle to support this rule
and the Whistleblower Protection Enhancement Act.
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I yield such time as
he may consume to the distinguished ranking member of the Rules
Committee, Mr. Dreier.
(Mr. DREIER asked and was given permission to revise and extend his
remarks.)
Mr. DREIER. Mr. Speaker, I rise to begin by thanking my friend from
Miami and my friend from Fort Lauderdale. We have got this Sun Belt
linkage now here. The only thing in between it was somebody from
upstate New York there. And I know he likes that better than Los
Angeles, as he told me up in the Rules Committee just before we were
going into our last break. But I am proud that there are three of us at
least who come from the Sun Belt who are representing this debate on
this rule.
Mr. Speaker, I do rise to reluctantly oppose both the rule and the
underlying legislation. The bill is very well-intentioned, and it is
designed to clarify and expand the laws regarding those who try to
expose waste, fraud and mismanagement in the Federal Government.
Whistleblowers, oftentimes, put their jobs at risk to expose
wrongdoing in the workplace, and whistleblowers are absolutely crucial
to our Nation's security, safety and success as well. I believe very
much that their protection is an inherent right for all employees, and
it needs to be maintained.
In addition, the whistleblower protections enable Congress to fulfill
our constitutional responsibility of overseeing the executive branch.
It is imperative that we do that. We need to recognize that we are a
separate and coequal branch of our Federal Government. We have a right
to know the actions of the executive branch and to oversee the
implementation of the laws that we create as Members of this body, and
whistleblowers are a very crucial part of that.
Now, Mr. Speaker, I do support the idea of expanding and modernizing
whistleblower protection laws. But, unfortunately, I believe that this
legislation ends up falling short of that very important goal to which
I believe we all aspire.
The bill aims to extend whistleblower protections to Federal workers
who specialize in national security issues. These workers include
employees of the FBI, the CIA, the Defense Intelligence Agency, among
others. Unfortunately, the bill raises significant national security
concerns that have really led me to conclude that I can't support this
bill in its present form.
Within its oversight obligations, Mr. Speaker, Congress is tasked
with protecting highly classified intelligence programs. It is
absolutely critical for us to ensure that any oversight is conducted by
Members and staff with the appropriate experience and expertise.
Now, this bill, in its current form, compromises that duty and
outlines new procedures that have the potential to expose highly
classified national security programs and information.
Now, during the Rules Committee hearing yesterday, an amendment was
offered by the ranking member of the Permanent Select Committee on
Intelligence, Mr. Hoekstra. And I just heard my friend from Fort
Lauderdale, who has served very ably as a member of the Intelligence
Committee, as well as on the Rules Committee, say that there is another
amendment designed to address this.
But, frankly, I believe very strongly that the amendment that was
filed in a timely manner by the gentleman from Michigan (Mr. Hoekstra)
was one that was not made in order, and I believe really best takes on
this issue of dealing with a better way to ensure the security of this
important, very important information.
Now, Mr. Speaker, 10 amendments were offered at the Rules Committee,
and while I commend the majority for making five of those 10 amendments
in order, I do believe that an open rule would have been more
appropriate. Give the Members of this body the opportunity to offer
amendments to important pieces of legislation like this, not just on
noncontroversial bills, which is what we have seen the open rule
procedure used for in the past.
At the very least, Mr. Speaker, I think we should have made all 10 of
the amendments that were submitted to the Rules Committee in order so
that we could have had a free flowing debate on these, and we would
have had a chance for people like the ranking member of the committee
of jurisdiction here, the Oversight and Government Reform Committee,
Mr. Davis, who served very ably as the chairman of that committee
before we saw last November's election make this change. This former
chairman, the now ranking member, sought to offer an amendment, and he
also was denied a chance to offer that amendment.
I do commend my California colleague, Mr. Waxman, the distinguished
chairman of the committee, as well as Mr. Davis, for their hard work
and expertise on this very critical issue. Unfortunately, I believe
that the bill does, as I say, fall short of that goal. The goal really
is an important one, as I said, to ensure that whistleblowers help us
meet our constitutional responsibility for oversight of the executive
branch.
But the national security concerns that have been raised I think are
such that, in its present form, I am not going to be able to support
this measure.
So, Mr. Speaker, I do urge my colleagues to vote against this rule.
And as I said, I am troubled enough that the bill itself, in its
current form, is not legislation that I can support.
Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 3
minutes to my good friend and classmate, the gentlewoman from New York
(Mrs. Maloney).
Mrs. MALONEY of New York. I rise, Mr. Speaker, in strong support of
the rule, H. Res. 239, and the underlying bill, H.R. 985, the
Whistleblower Protection Enhancement Act.
And I want to commend, not only the Rules Committee for coming
forward with a fair rule, but also Chairman Waxman and Ranking Member
Davis for moving this important bill out of the Government Reform and
Oversight Committee on which I serve.
The Whistleblower Protection Act has been weakened by court cases in
recent years, and even the weak protections offered under the
Whistleblower Protection Act do not apply to national security
whistleblowers or contractors at those agencies.
The Oversight Committee repeatedly has heard from people who have had
their security clearances revoked after blowing the whistle. In some
cases they have been fired for pointing out lapses in security, for
pointing out waste, fraud and abuse.
We have been told that wrongdoers have been allowed to continue their
actions, while the whistleblowers have been the ones that have been
made to suffer. This is absolutely wrong.
In the 109th Congress I was joined by my colleague, Diane Watson, in
offering an amendment during the committee's consideration of the
Federal Employee Protection of Disclosures Act, that would have
extended whistleblower protections to employees in national security
and in the intelligence community.
I would argue, and I believe many of my colleagues would agree, that
revealing lapses in the security of our
[[Page H2513]]
Nation is a national security priority above all. Whistleblowers in
these categories should be protected.
And I am thrilled that, under Democratic leadership, this has been
included in the bill, that these protections have been extended to
employees of intelligence agencies, and to Federal contractors in
intelligence agencies. This is an important step forward for the
American public. This is an important step forward, I would argue, for
the national security of our country.
Whistleblowers are heroes and heroines. They should not be turned
into villains and be harassed out of their jobs, denied their security
clearance because they see a breach in security or a breach in
accountability in our government.
So I am thrilled with this Democratic bill, and I urge my colleagues
to vote for the rule and also for the underlying bill. I urge all of my
colleagues to support it. It had bipartisan support coming out of our
committee.
{time} 1315
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I thank again my
distinguished friend from Florida for his courtesy in yielding the
time.
Mr. Speaker, we will oppose the previous question. If the previous
question is defeated, I will offer an amendment to the rule to make in
order the amendment offered yesterday in the Rules Committee by the
gentleman from Michigan, the ranking member of the Permanent Select
Committee on Intelligence, Mr. Hoekstra.
The Hoekstra amendment would safeguard our national intelligence and
allow the Intelligence Committee to appropriately address whistleblower
concerns through regular order. While the Tierney amendment which was
made in order, as was pointed out by my good friend, attempts to
address these concerns, it still allows the possible disemination, we
believe, of highly sensitive information to individuals outside of the
Intelligence Community and, therefore, may put our security at risk.
Mr. Speaker, I ask unanimous consent to insert the text of the
Hoekstra amendment and extraneous materials immediately prior to the
vote on the previous question.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Florida?
There was no objection.
Mr. LINCOLN DIAZ-BALART of Florida. At this time, Mr. Speaker, I urge
all Members to oppose the previous question, and I yield back the
balance of my time.
Mr. HASTINGS of Florida. Mr. Speaker, the underlying legislation is
desperately needed. Federal employees need to know that Congress is on
their side. They need to know that their jobs will not be at risk if
they choose to reveal fraud, abuse of power, neglect, or corruption in
their workplace.
The extension of these whistleblower protections is absolutely
critical to our national security and our government accountability. I
am proud to support the underlying legislation and hope that my
colleagues will do the same. This is a fair rule for a bill that is
supported by Members from both sides of the aisle, including the
chairman and ranking Republican of the Government Reform Committee.
I urge a ``yes'' vote on the previous question and on the rule, Mr.
Speaker.
The material previously referred to by Mr. Lincoln Diaz-Balart of
Florida is as follows:
Amendment to H. Res. 239
Offered by Rep. Lincoln Diaz-Balart of Florida
At the end of the resolution, add the following:
Sec. 3. Notwithstanding any other provision of this
resolution, the amendment printed in section 4 shall be in
order as though printed as the last amendment in the report
of the Committee on Rules if offered by Representative
Hoekstra of Michigan or a designee. That amendment shall be
debatable for 30 minutes equally divided and controlled by
the proponent and an opponent.
Sec. 4. The amendment referred to in section 3 is as
follows:
Strike section 10 of the bill and conform the table of
contents accordingly.
Redesignate sections 11 through 14 as sections 10 through
13, respectively, and conform the table of contents
accordingly.
In section 11(a)(2), as redesignated, strike ``section
2303a (as inserted by section 10)'' and insert ``section
2303''.
In section 13, as redesignated, strike ``section 12(a)(2)''
and insert ``section 11(a)(2)''.
____
(The information contained herein was provided by
Democratic Minority on multiple occasions throughout the
109th Congress.)
The Vote on the Previous Question: What It Really Means
This vote, the vote on whether to order the previous
question on a special rule, is not merely a procedural vote.
A vote against ordering the previous question is a vote
against the Democratic majority agenda and a vote to allow
the opposition, at least for the moment, to offer an
alternative plan. It is a vote about what the House should be
debating.
Mr. Clarence Cannon's Precedents of the House of
Representatives, (VI, 308-311) describes the vote on the
previous question on the rule as ``a motion to direct or
control the consideration of the subject before the House
being made by the Member in charge.'' To defeat the previous
question is to give the opposition a chance to decide the
subject before the House. Cannon cites the Speaker's ruling
of January 13, 1920, to the effect that ``the refusal of the
House to sustain the demand for the previous question passes
the control of the resolution to the opposition'' in order to
offer an amendment. On March 15, 1909, a member of the
majority party offered a rule resolution. The House defeated
the previous question and a member of the opposition rose to
a parliamentary inquiry, asking who was entitled to
recognition. Speaker Joseph G. Cannon (R-Illinois) said:
``The previous question having been refused, the gentleman
from New York, Mr. Fitzgerald, who had asked the gentleman to
yield to him for an amendment, is entitled to the first
recognition.''
Because the vote today may look bad for the Democratic
majority they will say ``the vote on the previous question is
simply a vote on whether to proceed to an immediate vote on
adopting the resolution . . . [and] has no substantive
legislative or policy implications whatsoever.'' But that is
not what they have always said. Listen to the definition of
the previous question used in the Floor Procedures Manual
published by the Rules Committee in the 109th Congress, (page
56). Here's how the Rules Committee described the rule using
information form Congressional Quarterly's ``American
Congressional Dictionary'': ``If the previous question is
defeated, control of debate shifts to the leading opposition
member (usually the minority Floor Manager) who then manages
an hour of debate and may offer a germane amendment to the
pending business.''
Deschler's Procedure in the U.S. House of Representatives,
the subchapter titled ``Amending Special Rules'' states: ``a
refusal to order the previous question on such a rule [a
special rule reported from the Committee on Rules] opens the
resolution to amendment and further debate.'' (Chapter 21,
section 21.2) Section 21.3 continues: Upon rejection of the
motion for the previous question on a resolution reported
from the Committee on Rules, control shifts to the Member
leading the opposition to the previous question, who may
offer a proper amendment or motion and who controls the time
for debate thereon.''
Clearly, the vote on the previous question on a rule does
have substantive policy implications. It is one of the only
available tools for those who oppose the Democratic
majority's agenda and allows those with alternative views the
opportunity to offer an alternative plan.
Mr. HASTINGS of Florida. Mr. Speaker, I yield back the balance of my
time, and I move the previous question on the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, on that I demand the
yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 and clause 9 of rule
XX, this 15-minute vote on ordering the previous question will be
followed by 5-minute votes on adoption of H. Res. 239, if ordered, and
approval of the Journal, if ordered.
The vote was taken by electronic device, and there were--yeas 224,
nays 197, not voting 12, as follows:
[Roll No. 145]
YEAS--224
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Bean
Becerra
Berkley
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ellison
Ellsworth
[[Page H2514]]
Emanuel
Engel
Eshoo
Etheridge
Farr
Fattah
Filner
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meeks (NY)
Melancon
Michaud
Millender-McDonald
Miller (NC)
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Yarmuth
NAYS--197
Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono
Boozman
Boustany
Brady (TX)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Crenshaw
Cubin
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Hunter
Inglis (SC)
Issa
Jindal
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
LaHood
Lamborn
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Musgrave
Myrick
Neugebauer
Nunes
Paul
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Tancredo
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--12
Berman
Brown (SC)
Davis, Jo Ann
Granger
Kanjorski
McCarthy (CA)
Meehan
Meek (FL)
Miller, George
Ruppersberger
Saxton
Wynn
{time} 1342
Ms. GINNY BROWN-WAITE of Florida, Mr. REYNOLDS, and Mrs. BACHMANN
changed their vote from ``yea'' to ``nay.''
Ms. McCOLLUM of Minnesota and Mr. KUCINICH changed their vote from
``nay'' to ``yea.''
So the previous question was ordered.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, on that I demand the
yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 223,
nays 193, not voting 17, as follows:
[Roll No. 146]
YEAS--223
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ellison
Ellsworth
Emanuel
Engel
Etheridge
Fattah
Filner
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Melancon
Michaud
Millender-McDonald
Miller (NC)
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Weiner
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Wynn
Yarmuth
NAYS--193
Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Bartlett (MD)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono
Boozman
Boustany
Brady (TX)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Castle
Chabot
Coble
Conaway
Crenshaw
Cubin
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Everett
Fallin
Feeney
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Hunter
Inglis (SC)
Issa
Jindal
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
LaHood
Lamborn
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Musgrave
Myrick
Neugebauer
Nunes
Paul
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
[[Page H2515]]
Ryan (WI)
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Tancredo
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--17
Brown (SC)
Buyer
Carter
Cole (OK)
Davis, Jo Ann
Eshoo
Farr
Ferguson
Granger
Meehan
Meek (FL)
Meeks (NY)
Miller, George
Peterson (MN)
Saxton
Scott (GA)
Waxman
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). Members are advised 2
minutes remain in this vote.
{time} 1349
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Stated against:
Mr. COLE of Oklahoma. Mr. Speaker, I was unavoidably absent for
rollcall vote 146 on H. Res. 239, the rule to provide for consideration
of H.R. 985. Had I been present, I would have voted ``nay.''
____________________
[Congressional Record: March 14, 2007 (House)]
[Page H2517-H2543]
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2007
The SPEAKER pro tempore. Pursuant to House Resolution 239 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the consideration of the bill, H.R. 985.
{time} 1429
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the bill
(H.R. 985) to amend title 5, United States Code, to clarify which
disclosures of information are protected from prohibited personnel
practices; to require a statement in nondisclosure policies, forms, and
agreements to the effect that such policies, forms, and agreements are
consistent with certain disclosure protections, and for other purposes,
with Mr. Pastor in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the rule, the bill is considered read the
first time.
General debate shall not exceed 1 hour and 20 minutes, with 1 hour
equally divided and controlled by the chairman and ranking minority
member of the Committee on Oversight and Government Reform and 20
minutes equally divided and controlled by the chairman and ranking
minority member of the Committee on Homeland Security.
The gentleman from Iowa (Mr. Braley) and the gentleman from Virginia
(Mr. Tom Davis) each will control 30 minutes, and the gentleman from
Pennsylvania (Mr. Carney) and the gentleman from Connecticut (Mr.
Shays) each will control 10 minutes.
The Chair recognizes the gentleman from Iowa.
{time} 1430
Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may
consume.
I am proud to be here today to bring to the floor of the House of
Representatives, H.R. 985, the Whistleblower Enhancement Protection Act
of 2007. A month ago today this important bill passed the House
Committee on Oversight and Government Reform unanimously by a vote of
28-0. I strongly support the bill, and I hope it will receive a similar
level of bipartisan support on the floor of the House of
Representatives today. We need to send a strong message that protecting
the rights of whistleblowers is not a Democratic issue, it is not a
Republican issue, it is an issue that impacts the lives and the safety
of every American citizen.
Whistleblowers have long been instrumental in alerting the public and
the Congress to wrongdoing in Federal agencies. In many cases, the
brave actions of whistleblowers have led to positive changes that have
resulted in more responsible, safe and ethical practices. In some
instances, the actions of whistleblowers have even saved lives.
Unfortunately, despite the importance of whistleblowers in ensuring
government accountability and integrity, court decisions by the U.S.
Court of Appeals for the Federal Circuit have undermined whistleblower
protections and have unreasonably limited the scope of disclosures
protected under current law.
The hearings that Chairman Waxman and Ranking Member Davis have been
holding in the Committee on Oversight and Government Reform in the
110th Congress have highlighted the need for expanded protections for
workers who shed light on wrongdoing by government agencies and
departments. Several hearings held by the committee have helped uncover
waste and fraud in government contracting, both here in the United
States, and in Iraq, waste and fraud which has led to the loss of
billions of taxpayer dollars and has jeopardized the safety of
Americans here at home and those serving abroad.
At another hearing, we learned that some officials in the Bush
administration have sought to manipulate Federal climate science,
compromising the health and safety of American families and the future
of the planet solely for political gain.
Perhaps the starkest reminder of the need to protect those who remain
silent in the face of government wrongdoing came at last week's hearing
at Walter Reed, at which we learned about the terrible living
conditions and bureaucratic hurdles that soldiers have endured there.
At the hearing, it became clear that nobody dared to complain about
the squalid living conditions and inadequate care at what is supposed
to be the best military facility in the world because of fear of
retribution.
Because of this fear, it took an expose by a newspaper in order for
action to be taken on these severe and systemic problems, and many of
our Nation's heroes had to suffer there for far too long.
The Whistleblower Protection Enhancement Act of 2007 makes important
changes to existing law that will strengthen protections for government
workers who speak out against illegal, wasteful and dangerous
practices.
The bill protects all Federal whistleblowers by clarifying that any
disclosure pertaining to waste, fraud or abuse, ``without restriction
as to time, place, form, motive, context or prior disclosure,'' and
including both formal and informal communications, is protected.
The bill also gives whistleblowers access to timely action on their
claims, allowing them access to Federal district courts if the Merit
Systems Protection Board does not take action on their claims within
180 days.
In addition, the bill clarifies that national security workers,
employees of government contractors, and those who blow the whistle on
actions that compromise the integrity of Federal science are all
entitled to whistleblower protection.
As we continue to fight terrorism and other national security
threats, this landmark legislation will give whistleblower protections
to national security whistleblowers for the first time. It may be hard
to believe, but currently employees at key government agencies in
charge of protecting the United States, including the FBI, the CIA, and
the Transportation Security Administration, are excluded from
whistleblower protections.
These are the employees who work every day to keep our country safe
and secure. These workers deserve to have the same protection as other
Federal employees, and the American public deserves to know that
workers who come forward with information that is essential to national
security will not be punished for helping to keep us safe.
A good example is former FBI agent Coleen Rowley, Time magazine's
Person of the Year in 2002. Special Agent Rowley graduated from
Wartburg College in Waverly, Iowa, which is located in my district.
Like me, she received her law degree from the University of Iowa
College of Law. She is married and has four children.
After the terrorist attacks on 9/11, Special Agent Rowley wrote a
paper for the Director of the FBI, which laid out in detail how
personnel at FBI headquarters failed to take action on concerns raised
by the Minneapolis field office concerning its investigation of
suspected terrorist Zacarias Moussaoui. These failures, identified by
Special Agent Rowley, could have left the United States vulnerable to
September 11 attacks in 2001. Special Agent Rowley later testified
before the Senate and the 9/11 Commission about these very same
concerns.
Following those hearings, Iowa Senator Chuck Grassley, a Republican
[[Page H2518]]
who has been a proponent of whistleblower protection, pushed for a
major reorganization at the FBI, resulting in the creation of the
Office of Intelligence, which significantly expanded FBI personnel with
counterterrorism and foreign language skills.
Senator Grassley commended the actions of Rowley, saying on the floor
of the Senate last June, ``in typical FBI fashion, the missteps from 9/
11 would have been swept under the rug if it weren't for whistleblowers
like Coleen Rowley . . . it looks to me like she's the only one who did
anything to make sure the FBI was held responsible for its lack of
responsiveness.''
The Whistleblower Protection Enhancement Act also ensures that
employees who work for companies that have government contracts are
protected when they report waste, fraud, and abuse of taxpayer dollars.
This provision is especially important, considering the use of private
contractors by the United States Government has reached an all-time
high, and that spending on Federal contracts has almost doubled since
2000, reaching $400 billion in 2006.
Private companies with government contracts are now performing some
of the most important work of the government, including protecting
civilian workers in Iraq and ensuring the safety of American citizens
in the United States. This bill will help ensure that employees of
government contractors, who report on the abuse of taxpayer dollars or
other wrongdoing, do not have to fear the loss of their jobs or other
retribution.
Finally, Mr. Chairman, this bill clarifies that employees who blow
the whistle on political interference in Federal scientific research
and reports are also entitled to whistleblower protections. It is
essential that we have the best and most accurate scientific research
and information that is possible.
Americans trust that their tax money is funding thorough and adequate
scientific studies that are free from political interference or
manipulation. As lawmakers, we also depend on accurate and unbiased
scientific information to make policy decisions that will impact the
lives and futures of American families.
Protecting government researchers who report actions or policies that
compromise the accuracy and integrity of Federal science is critical to
ensuring the public and the lawmakers are able to make wise and
informed decisions that affect our lives now and will have
repercussions far into the future.
I would like to thank Chairman Waxman and Ranking Member Davis for
their work on this bill in the Committee on Oversight and Government
Reform.
Again, I strongly urge my colleagues to support the passage of the
Whistleblower Enhancement Protection Act today.
Mr. Chairman, I reserve the balance of my time.
Mr. TOM DAVIS of Virginia. Mr. Chairman, today, we take up the
Whistleblower Protection Enhancement Act of 2007. This legislation
would modernize, clarify, and expand the laws protecting Federal
employees who blow the whistle on waste, fraud, and mismanagement in
the Federal Government.
At the outset, I think it is important to thank my colleague from
Pennsylvania (Mr. Platts). Throughout this process, Mr. Platts has been
an unwavering advocate for Federal employees. This bill would not exist
today in this form if not for his steady leadership.
Almost immediately following the 1994 changes in the Whistleblower
Protection Act, it became clear that the Federal Circuit Court of
Appeals would continue to create loopholes where no loopholes were
intended and dilute protections for whistleblowers Congress clearly
intended to protect.
This bill we are considering today develops a new regime governing
whistleblower protections and offers fresh solutions to the continuing
problem of employee retaliation. I am proud this legislation would
allow Federal employees and contractor personnel to pursue their claims
in the Federal district court, to be heard before a jury of their
peers, if no action is taken by the Merit Systems Protection Board
within 180 days.
Under current law, cases filed by employees who believe they have
been retaliated against for blowing a whistle can sometimes end up
languishing before the MSPB for years before a final decision is
issued. H.R. 985 would change the process and allow Federal employees
to reach resolution on this issue one way or the other.
I am disappointed, however, the Rules Committee did not make in order
my amendment to remove from the bill language which would provide for
an ``all circuits'' review of whistleblower claims.
My amendment would have tried to maintain the uniformity in the
consideration of whistleblower cases in the Federal courts by keeping
in place the current requirement that all whistleblower appeals go
through the United States Court of Appeals for the Federal Circuit,
rather than opening up appeals to all circuits.
Without my amendment, Federal employee whistleblowers could end up
possessing a different set of rights and protections based on where
they file their claim. For example, a Border Patrol agent in Texas
could be protected by a different set of whistleblower protections than
a Border Patrol agent in Maine.
I think the underlying legislation already provides sufficient
reforms to the whistleblower protection laws by revising the statute
under which the Federal Circuit reviews whistleblower claims. Going
further in this legislation, removing the requirement that all appeals
must go through one Federal appeals court, is going to, in the long
term, be counterproductive to our policies governing Federal
employment.
I am also interested in the amendment dealing with national security
whistleblowers Mr. Hoekstra filed at Rules, but was not made in order.
While I supported the language Mr. Hoekstra's amendment sought to
strike, I understand many members from the intelligence-related
committees and officials in the intelligence community have concerns
which I believe need to be addressed before this bill moves on to the
Senate.
One additional concern I would like to mention is with section 13 of
the bill. Section 13 would open a whole new area of personnel conflicts
to whistleblower protections. This new language, added to the bill this
year, would make influencing federally funded scientific research a
prohibited personnel practice by specifically identifying the
dissemination of false or misleading scientific or medical or technical
information as an ``abuse of an authority'' that is actionable in
Federal court.
Rather than acknowledging the natural and perfectly healthy tension
that exists between science and policymaking, this section would submit
the ``science versus ethics'' issue to the Federal courts to be
litigated as a personnel issue.
Unlike many on the Democratic side of the aisle who believe only
scientific findings should serve as the foundation for public policy
and decisionmaking, I believe science is just one cog in the policy
decisionmaking process. Science must be balanced against factors such
as the morals of our society and the ethics of individual policymakers,
as well as countless other policy considerations. As I have said
before, I don't believe we should turn the tension between science and
policymaking into a personnel matter that gets litigated by the courts.
In closing, I believe the underlying legislation makes a number of
important positive contributions to Federal whistleblower policy, and I
support this bill.
While I believe we can still make a few refinements to the bill to
make it better, I applaud Mr. Platts' and Mr. Waxman's efforts to move
this bill forward.
Mr. Chairman, I reserve the balance of our time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 5 minutes to the chairman
of the committee, Mr. Waxman of California.
Mr. WAXMAN. I thank the gentleman from Iowa for yielding me the time
and for managing this bill. He has played a very important role in the
committee in the formulation of this legislation and is far more
knowledgeable than many of us because he has had experience in bringing
whistleblower lawsuits as an attorney.
Mr. Chairman, this bill that we are considering at this time would
[[Page H2519]]
strengthen one of our most important weapons against waste, fraud and
abuse, and that is Federal whistleblower protections. Protecting
whistleblowers is a key component of government accountability.
Federal employees are on the inside. They can see where there is
waste going on or if there is corruption going on. They can see the
signals of incompetent management, and what we want is to enable them
to let us know, those of us in Congress, about these kinds of problems.
So this bill would give them the protections to come forward and, in
effect, blow the whistle on what they know is going on and is not right
to be continued.
But I want to emphasize that one of the most important provisions of
H.R. 985 protects national security whistleblowers.
{time} 1445
It is impossible to overstate how essential this provision will be.
Now, there may be an attempt to try to strike this provision, and I
want to make clear to my colleagues why they should not be misled into
voting for such a motion.
There are a lot of Federal officials who knew the intelligence on
Iraq was wrong. Officials in the CIA and the State Department knew that
Iraq did not try to import uranium from Niger. Officials in the Energy
Department knew the aluminum tubes were not suitable for nuclear
centrifuges. Other officials knew the information from ``Curveball,''
the so-called informant that turned out to be inaccurate, but the
information that he was spreading about so-called mobile weapons labs
were completely bogus.
But none of these officials would come forward. In fact, none of them
could come forward to Congress and share their doubts. If they did,
they could have been stripped of their security clearances, or they
could have been fired.
And we all know what the result has been. Nobody blew the whistle on
the phony intelligence that got us into the Iraq war.
It is imperative that national security employees be protected
against retribution so they will not be afraid to report national
security abuses to Members of Congress. When the intelligence is wrong,
the consequences for our Nation can be immense.
H.R. 985 also extends whistleblower protections to employees of
Federal contractors. Every year, Federal contractors do more and more
of the government's work. In 2005, nearly 40 cents of every Federal
dollar, outside of the entitlements, went to private companies. We need
to encourage the employees of these private companies to report
wasteful spending.
We heard testimony in our Oversight Committee about a Halliburton
truck driver, not just one but many of them, who were told, if they had
a flat tire or some mechanical problem, not to worry about it, torch
the truck. They will just go and buy another one. After all, these were
cost-plus contracts.
Well, this abuse was so wanton that one of the truck drivers finally
blew the whistle. But rather than being protected for speaking out for
the American taxpayer, he was fired.
Finally, passage of this bill would stop this kind of intimidation.
This legislation includes an important provision that will help check
the growing problem of political interference with science. It gives
explicit provisions to protect the Federal employee who reports
instances where Federal scientific research is suppressed or distorted
for political reasons.
Don't buy the argument that this should be struck. We ought to
protect scientists from those that would try to suppress or distort
their scientific work.
The bill is bipartisan. It was cosponsored by Ranking Member and
former Chairman Tom Davis of the Oversight Committee and former
subcommittee Chair Todd Platts. It passed unanimously last month by the
Committee on Oversight and Government Reform.
It is carefully crafted legislation that protects both our national
security and the interests of the American taxpayer, and I urge its
adoption.
Mr. Chairman, I am including with my statement copies of letters
between my Committee, Oversight and Government Reform, and the
Committee on Homeland Security regarding jurisdiction.
House of Representatives,
Committee on Homeland Security,
Washington, DC, March 14, 2007.
Hon. Henry Waxman,
Chairman, Oversight and Government Reform Committee,
Washington, DC.
Dear Henry: I am writing you considering the jurisdictional
interest of the Commttee on Homeland Security in H.R. 985,
the ``Whistleblower Protection Enhancement Act of 2007.''
Section 12 of this legislation provides whistleblower
protections to Transportation Security Administration (TSA)
employees. Under House Rule X, the Committee on Homeland
Security has jurisdiction over the ``[t]ransportation
security activities'' of the Department of Homeland Security
and ``[o]rganization and administration of the Department of
Homeland Security.'' As a result, the Committee on Homeland
Security has a jurisdiction interest in section 12 of the
bill. Moreover, the Committee on Homeland Security received a
sequential referral of a nearly identical bill, H.R. 1317,
the Federal Employee Protection of Disclosures Act,
legislation that was introduced by Rep. Todd Platts (R-PA) in
the 109th Congress. Although the Committee on Homeland
Security has sought a sequential referral of H.R. 985, the
Committee agrees to discharge the legislation in the interest
of clearing this measure as expeditiously as possible for
consideration in the House.
As a condition to our agreement to forgo a markup of this
legislation, you have agreed to include report language to
accompany the bill that clarifies the congressional intent
behind that the term ``public safety'' in 5 U.S.C. 2302
(b)(1),(8), and (9), as amended by H.R. 985, is meant to
cover ``national security'' and ``homeland security.'' This
clarification will ensure that TSA employees who report
security risk, in addition to safety risks or mismanagement
issues, will still receive the whistleblower protections
granted under the bill. Additionally, you have agreed to
include report language to accompany Section 10 of the bill
to ensure Department of Homeland Security employees who work
on intelligence and information-sharing matters are covered
by the ``National Security Whistleblower Rights'' granted
under that section.
Our agreement not to hold a markup is also conditioned upon
our mutual understanding that our decision to waive further
consideration does not, in any way, reduce or otherwise
affect the jurisdiction of the Committee on Homeland Security
over provisions of the bill. Additionally, you have agreed to
support the request of the Committee on Homeland Security to
have its members named as conferees in the event of a
conference with the Senate on this bill.
I ask that you please include in the Congressional Record
during consideration on the floor, a copy of this letter and
a copy of your response acknowledging the Committee on
Homeland Security's jurisdictional interest in this bill and
indicating your support of our agreement expressed in this
letter.
Sincerely,
Bennie G. Thompson,
Chairman.
____
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC, March 13, 2007.
The Hon. Bennie G. Thompson,
Chairman, House Committee on Homeland Security,
Washington, DC.
Dear Chairman Thompson, I am writing regarding your
Committee's jurisdictional interest in H.R. 985, the
Whistleblower Protection Enhancement Act of 2007. I
appreciate your cooperation in waiving consideration of the
bill by the Committee on Homeland Security in order to allow
consideration of the legislation on the House floor later
this week.
I recognize that your Committee has a valid jurisdictional
interest in section 12 of H.R. 985, as ordered reported by
the Committee on Oversight and Government Reform. Your
decision to forego a markup should not prejudice the
Committee on Homeland Security with respect to its
jurisdictional prerogatives on this or similar legislation. I
will support your request for an appropriate number of
conferees should there be a House-Senate conference on this
or similar legislation.
I have included report language at your request that states
that under the bill, Transportation Security Administration
workers can report dangers to public health and safety,
including those regarding or relating solely to homeland or
national security. Also, the report states that the national
security whistle blower section of the bill provides
whistleblower rights to those individuals whose job functions
make them eligible for the protections of this section even
though their agencies are not specified, such as intelligence
analysts and information sharing employees with access to
classified information within the Department of Homeland
Security's Office of Intelligence and Analysis.
Finally, I will include a copy of your letter and this
response in the Congressional Record when the legislation is
considered by the House.
Thank you for your assistance.
Sincerely,
Henry A. Waxman,
Chairman.
Mr. PLATTS. Mr. Chairman, I yield 4 minutes to the gentleman from
Michigan (Mr. Hoekstra), the distinguished
[[Page H2520]]
ranking member of the House Permanent Select Committee on Intelligence.
Mr. HOEKSTRA. Mr. Chairman, I appreciate the efforts to enhance
protection for whistleblowers in the intelligence community, a goal
that I wholeheartedly endorse. It is important that personnel within
the intelligence community have appropriate opportunities to bring
matters to Congress so long as the mechanisms to do so safeguard highly
sensitive classified information and programs. The bill before us
raises significant issues in doing so that need more considered review.
As chairman of the Permanent Select Committee on Intelligence during
the last Congress, I learned firsthand from whistleblowers about
intelligence programs that the administration had not reported to the
Intelligence Committees, despite its statutory duty to keep us fully
and currently informed. I communicated my strong concerns directly to
the President. I would vigorously defend the individuals who provided
me with this important information from even the slightest reprisal.
So I strongly support the underlying intention of the provisions of
the bill intended to protect the intelligence community. Unfortunately,
however, that part of the bill was not coordinated with HPSCI, and it
suffers from a number of problems that I believe need to be fixed.
First, the bill would conflict with the provisions of the existing
Intelligence Community Whistleblower Protection Act of 1998, which has
already provided specific mechanisms to permit whistleblowers to come
to Congress, while simultaneously protecting sensitive national
security information from unauthorized disclosure to persons not
entitled to receive it.
Second, the bill violates the rules of the House by encouraging
intelligence community personnel to report highly sensitive
intelligence matters to committees other than the Intelligence
Committees, which were created to solely and appropriately deal with
and safeguard information regarding sensitive intelligence programs.
This is simply not a jurisdictional issue. The real issue is one of
protecting highly classified intelligence programs and ensuring that
any oversight is conducted by Members and staff with the appropriate
experiences, expertise, and clearances. Our intelligence oversight
should be conducted to determine how best to enhance our national
security, protect civil liberties, and not to get press coverage.
Third, this bill would make every claim of a self-described
whistleblower, whether meritorious or not, subject to extended and
protracted litigation. It would also substantially alter the
application of the judicially established state secrets privilege in
those cases, forcing the government to choose between revealing
sensitive national security information to defend itself or losing in
court. Judges recognized the privilege precisely because they
understood that such a Hobson's choice is fundamentally improper and
unfair and could harm national security interests. The current law
works to screen frivolous whistleblower claims and recognizes that our
national security interest should not be managed by lawsuit. Those
considerations must continue to be protected.
I agree very strongly with the principle that intelligence community
whistleblowers should be protected from reprisal, and would look
forward to working with the Oversight and Government Reform Committee
to accomplish this goal. However, until those changes are made, and
those issues are addressed, I would encourage my colleagues to vote
``no'' on this bill.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 4 minutes to my
distinguished colleague from Maryland, Mr. Cummings.
Mr. CUMMINGS. Mr. Chairman, I rise in support of the Whistleblower
Protection Enhancement Act of 2007, which I have cosponsored.
To say the least, this administration has not prioritized openness in
government, and I was not surprised to learn that the President is
opposed to the Whistleblower Protection Enhancement Act.
I am similarly not surprised to learn that the President and many of
his colleagues here in the Congress have threatened that by affording
our Federal employees whistleblower protections, we are also
threatening national security. This administration has consistently
used security threats to strike fear into the public's consciousness.
But let me be clear: Claims that the legislation we are considering
here today would threaten national security are baseless. If anything,
the opposite is true.
As a member of the House Armed Services Committee, I know how vitally
important it is for Federal officials to be able to share their
knowledge and their firsthand experience with the Congress. We now know
that, going into the Iraq war, Federal officials at the CIA and the
State Department were aware that the pre-war intelligence about Iraq
purporting to show that the nation had weapons of mass destruction was
wrong.
Thousands of Americans and Iraqi lives and billions of American
taxpayer dollars could have been saved if these individuals had been
able to share their knowledge with a Congress willing to listen to them
and protect them from retribution. But, lacking whistleblower
protections, they were afraid to do so.
Recognizing the critical need for Federal employees to communicate
openly with the legislative branch, Congress in 1912 enacted the Lloyd-
LaFollette Act. And that act, which has never been repealed, by the
way, affords all Federal employees, including employees at the national
security agencies, the right to contact Members of Congress.
The statute states as follows: ``The right of employees, individually
or collectively, to petition the Congress or a Member of Congress or to
furnish information to either House of Congress or to a committee or
Member thereof may not be interfered with or denied.''
The statute's language was intentionally drafted to be broad because
Congress recognized in 1912, as we recognize today, the compelling need
for Federal employees to exercise their rights to free speech.
But the law clearly does not go far enough. Consider the case of FBI
Special Agent Bassem Youssef. According to a Washington Post article
from July 18, 2006, an internal investigation conducted by the United
States Justice Department concluded that Youssef, the FBI's highest
ranking Arabic speaker, was blocked from a counterterrorism assignment
in 2002 after he had met with U.S. Representative Wolf and met with FBI
Director Mueller to discuss Youssef's complaints with regards to the
way the war on terror was being conducted.
Mueller had approved a transfer for Youssef just days before the
meeting, but it never occurred and Youssef was never informed of
Mueller's decision, according to the report.
Investigators also said that the FBI has provided no rationale or
basis for its failure to promote Youssef, although one former senior
FBI manager said Mueller was appalled that Youssef had complained to a
Congressman about his treatment.
Because of this retaliation, we lost 4 years of expertise for the war
on terror from a highly qualified Arab American agent. Once the FBI's
top Arabic translator, Youssef is now simply processing documents.
Under current law, Youssef cannot pursue legal action for the
retaliation. The Whistleblower Protection Enhancement Act of 2007 would
rectify this situation.
Congress has a mandate to oversee the functions of the executive
branch to ensure that government runs as effectively and efficiently as
possible, but we cannot fulfill this mandate if we cannot get reliable
information, and we cannot get that information if people must put
their lives and careers on the line.
Mr. PLATTS. Mr. Chairman, I yield myself as much time as I may
consume.
Mr. Chairman, H.R. 985, the Whistleblower Protection Enhancement Act,
is a bipartisan bill which seeks to restore protections for civil
servants who report illegalities, gross mismanagement and waste, and
substantial and specific dangers to the public health and safety.
H.R. 985 contains many of the provisions of legislation which I
introduced during the 109th Congress, H.R. 1317. It represents
consensus language crafted through bipartisan negotiations among
myself, Chairman Waxman, Ranking Member Davis, Representative Van
[[Page H2521]]
Hollen, as well as the majority and minority staffs of the Oversight
and Government Reform Committee, and interested stakeholders groups
such as the Government Accountability Project. I certainly would like
to thank all who have been involved in this process.
To provide context for the legislation we are considering today, it
is important to review the legislative history in the area of
whistleblower protections for Federal employees.
As a result of finding that the civil service protections of the time
were inadequate, Congress, in the first Bush administration, enacted
into law the Whistleblower Protection Act, WPA, of 1989, which
expressly stated that ``any protected disclosure of waste, fraud and
abuse by a Federal employee is covered by the law.''
Unfortunately, as interpreted by the Merit Systems Protection Board
and the Federal circuit court, loopholes began to develop in the WPA.
Accordingly, Congress strengthened the law in 1994.
It is noteworthy that the report accompanying the WPA Amendments of
1994 expressed great frustration with the way the WPA was being
interpreted. According to the report, it states, ``Perhaps the most
troubling precedents involved the Board's inability to understand that
'any' means 'any.' The WPA protects any disclosure evidencing a
reasonable belief of specified misconduct, a cornerstone to which the
MSPD remains blind.
{time} 1500
``The only restrictions are for classified information or material,
the release of which is specifically prohibited by statute. Employees
must disclose that type of information through confidential channels to
maintain protection. Otherwise, there are no exceptions.''
Unfortunately, we are once again largely back to where we started.
Since the 1994 amendments, 177 whistleblower cases have come before the
Federal Circuit Court; however, only two whistleblowers have prevailed.
Among the reasons are a number of decisions which have continued to
create exceptions to the law, including decisions stating that an
employee is not protected by the WPA if the employee directs criticism
to other witnesses or a supervisor in an attempt to start the process
of challenging misconduct, or the information disclosed was done in the
course of the employee's ordinary job duties, or the information
disclosed has already been raised by someone else.
In addition, the Federal Circuit Court has stated in one case that:
For a Federal employee to reasonably believe there is evidence of
waste, fraud, and abuse, as required by the law, he or she must
overcome with irrefragable proof the presumption that the agency was
acting in good faith.
This is an unheard of legal standard, defined in the dictionary as
``impossible to refute.'' In other words, the agency pretty much has to
admit to the waste, fraud, or abuse.
H.R. 985 would clarify congressional intent that any whistleblower
disclosure includes disclosures ``without restriction to time, place,
form, motive, context, or prior disclosure made to any person by an
employee or applicant, including a disclosure made in the ordinary
course of the employee's duties.'' In addition, H.R. 985 would end any
uncertainty about the irrefragable proof standard, making it clear that
the ``substantial evidence standard'' applies to all five categories
for legally protected whistleblowing disclosures. Appellate courts
could not impose additional burdens for a particular category, as I
understand occurred in the case of White v. Department of Air Force
with respect to ``gross mismanagement.''
Other provisions within H.R. 985 which are either identical or
similar to provisions within previous versions of this legislation
include:
Allowing employees the option to have their claims decided in Federal
District Court if the Merit Systems Protection Board does not act on a
claim within 180 days;
Ending the monopoly jurisdiction of the United States Court of
Appeals for the Federal Circuit over appeals under the Whistleblower
Protection Act;
Conducting a GAO study on the revocation of security clearances in
retaliation for whistleblowing;
Extending whistleblower protections to the Transportation Security
Administration baggage screeners;
Enhancing whistleblower protections for employees of government
contractors;
Codifying an anti-gag rule that was first included in the Treasury
Appropriations bill for 1988 and every year thereafter; and,
Continuing protections for whistleblowers who were subjected to
prohibited personnel actions prior to their agency or unit being
exempted from the WPA.
In conclusion, I would like to once again thank each of the parties
who have been involved in the ongoing development of this critically
important legislation. I would also like to thank those courageous
citizens who have blown the whistle on waste, fraud, and abuse in the
Federal Government. If we truly want to eliminate waste, fraud, and
gross mismanagement throughout the Federal Government, then we need to
empower and protect our Federal employees who are on the front lines of
government operations and best positioned to witness this waste, fraud,
and gross mismanagement. This legislation provides such empowerment and
protection. I urge a ``yes'' vote.
Mr. Chairman, I reserve the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I thank the gentleman for his
insightful comments, and I reserve the balance of my time.
Mr. PLATTS. Mr. Chairman, does the gentleman from Iowa have any
additional speakers?
Mr. BRALEY of Iowa. Yes.
Mr. PLATTS. Mr. Chairman, I will then continue to reserve the balance
of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 3\1/2\ minutes to the
distinguished gentlewoman from Texas (Ms. Jackson-Lee).
Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished
gentleman for his leadership, and I thank all of the cosponsors that
have brought this legislation, H.R. 985, to the floor, Representatives
Henry Waxman, Todd Platts, Chris Van Hollen, and Thomas Davis, and
certainly a number of the total of 29 cosponsors, and the fact that
this committee voted the whistleblower protection out unanimously.
We who are members of the Homeland Security Committee, along with
Chairman Thompson, and I know we have been working on this with the
ranking member as well, stand in support of this legislation. I know
that we will be yielded time shortly, but I am delighted to be able to
share my thoughts on the importance of H.R. 985, which would extend
whistleblower protection to Federal workers who specialize in national
security issues. It would also ensure that employees who work for
companies with government contracts are protected when they report
waste, fraud, and abuse of U.S. taxpayer dollars.
Protecting scientific whistleblowers, this legislation would extend
whistleblower protection to Federal employees who disclose actions
related to the validity of federally funded scientific research and
analysts. Many of us recognize and remember the Los Alamos incident of
a couple years ago still was never, if you will, explored and never
settled.
This also would override several court and administrative decisions
that undermine existing whistleblower protection, provide whistleblower
access to Federal District Courts if the Merit Systems Protection Board
or the Inspector General does not take action on their claims within
180 days.
This is good news to the Homeland Security Department and
particularly the transportation security officers. Contrary to
assertions by the opponents of the bill, TSOs do not have any
meaningful whistleblower rights. The truth is, TSOs do not enjoy full
whistleblower protection; specifically, transportation security
officers enjoy little more than minimal whistleblower protections
deriving from a memorandum of understanding entered into when the TSA
was still part of the Department of Transportation. Under the MOU,
screeners can only bring a claim to the office of a special counsel;
they do not have the right of appeal or to seek independent review by
another agency or court.
It is important to note that in 2004 the Merit Systems Protection
Board
[[Page H2522]]
ruled in a case, Schott v. Department of Homeland Security, that the
Homeland Security Act does not provide TSA screeners the right to bring
a claim before the MSPB, even though such rights were enjoyed by all
other department employees.
This is crucial. I have been working on this issue for quite a while.
The No Fear Act, which indicated or had to do with discrimination
against workers at the Environmental Protection Agency, generated, even
though it is a bill on discrimination of Federal employees that
generated from whistleblower employees at the Environmental Protection
Agency that didn't have the necessary protection to talk about issues
that dealt with regular issues of research, but also on the issue of
security. Let me quickly say that the EPA had a similar problem where
it also faced no protection of those employees, and the No Fear Act
came out of that which had to do with racial discrimination against
Federal employees.
But NASA, for example, legislation that I wrote dealing with the
International Space Station to give protection to NASA employees to
save lives and also to protect them in case of issues that they were
dealing with relating to national security.
All employees should feel free to tell the truth. All employees
should be protected, particularly Federal employees, particularly in
this time in the backdrop of 9/11. Tell the truth, be protected, and
the whistleblower protection will allow us to run this country in the
right way, save lives, and have employees that are Federal Government
employees gives us the fact so we can do the right thing. Support H.R.
985.
Mr. Chairman, I rise today in strong support of H.R. 985, the
``Whistleblower Protection Enhancement Act of 2007,'' which extends
whistleblower protections to federal employees and contractors working
in the area of national security and intelligence, including screeners
at the Transportation Security Administration (TSA).
Mr. Chairman, there is a tremendous need to protect our best sources
for identifying waste fraud and abuse--federal workers and contractors.
H.R. 985 treats Transportation Security Officers (TSOs), sometimes
called ``screeners,'' the same as all other Department employees by
giving them full whistleblower protections, which TSOs currently do not
have.
Mr. Chairman, contrary to assertions by opponents of the bill, TSOs
do not have any meaningful whistleblower rights. The truth is TSOs do
not enjoy full whistleblower protections. Specifically, TSOs enjoy
little more than minimal whistleblower protections deriving from a
Memorandum of Understanding (MOU) entered into when TSA was still part
of the Department of Transportation.
Under this MOU, screeners can only bring a claim to the Office of
Special Counsel; they do not have a right of appeal or to seek
independent review by another agency or court.
Mr. Chairman, in 2004, the Merit Systems Protection Board (MSPB)
ruled in Schott v. Department of Homeland Security, that the Homeland
Security Act does not provide TSA screeners the right to bring a claim
before the MSPB, even though such rights were enjoyed by all other
Department employees.
Thus, as you can see Mr. Chairman, TSOs are treated differently than
other Department of Homeland Security personnel--including fellow
employees within TSA.
This bill allows a whistleblower to seek relief in federal circuit
court, if his or her claim has not been acted upon within 6 months. In
addition, H.R. 985 permits the whistleblower to bring an appeal on
their case to any federal circuit court of appeals having in personam
jurisdiction, not just the Court of Appeals for the Federal Circuit as
is the case under current law.
I am also pleased that this bill provides the same rights to the
Department's Office of Intelligence and Analysis employees as it does
to intelligence employees in other agencies. I do not have to tell you,
Mr. Chairman, that whistleblowers in the intelligence community must be
careful when they disclose certain information.
H.R. 985 set forth procedures which enable whistleblowers to assert
their claims, while at the same time adequately protecting any
sensitive or classified information involved with such claims.
Mr. Chairman, I note that H.R. 1, which passed the House in January,
seeks to improve the poor morale problem at TSA by giving TSO employees
whistleblower and collective bargaining rights. These collective
bargaining rights are comparable to other law enforcement officers and
others within the Department, such as the Border Patrol, Customs and
Border Protection Officers.
Mr. Chairman, as a senior member of the Homeland Security Committee
and chair of the Subcommittee on Transportation Security and
Infrastructure Protection, I am proud to support H.R. 985. This bill
will help the federal government keep make America safer and more
secure by encouraging and protecting employees who come forward to
report waste, fraud, wrongdoing, or abuse of vital and limited
government resources. I urge all members to join me in voting for this
important legislation.
Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
In the report language from the Committee on Oversight and Government
Reform, there is a well-stated argument about the importance of this
legislation, why we need it, and why we need it for national security
employees as well. The report reads as follows:
``A key component of government accountability is whistleblower
protection. Federal employees are on the inside. They can see when
taxpayer dollars are wasted and are often the first to see the signals
of corrupt or incompetent management.
``Unfortunately, whistleblowers too often receive retaliation rather
than recognition for their courage. They need adequate protections so
they are not deterred from stepping forward to blow the whistle.
``There are many Federal Government workers who deserve whistleblower
protection, but perhaps none more than national security officials.
These are Federal Government employees who have undergone extensive
background investigations, obtained security clearances, and handled
classified information on a routine basis. Our government has concluded
that they can be trusted to work on the most sensitive law enforcement
and intelligence projects, yet these officials receive no protection
when they come forward to identify abuses that are undermining our
national security efforts.''
I think the report language well states the case for this bill and
the importance of us adopting this legislation and moving the process
forward.
Mr. Chairman, I reserve the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 2 minutes to the
distinguished gentleman from Illinois (Mr. Davis).
(Mr. DAVIS of Illinois asked and was given permission to revise and
extend his remarks.)
Mr. DAVIS of Illinois. Mr. Chairman, I rise in strong support of H.R.
985, and I do so for a number of reasons. We all know that there are
individuals who would love to simply be forthcoming with information.
All of us have been places, all of us have worked places, all of us
have known things, and we have all wanted to operate free and
uninhibited. But unless individuals have the absolute protection, in
many instances, of knowing that whatever it is that they would reveal
that when they come forth that nobody can use that against them,
because they also have concerns of their own relative to being able to
maintain the job that they have got to take care of the security needs
of their family.
Whistleblower protection could have been used more effectively even
as we debated the issue of Iraq, as we made decisions based upon
intelligence that supposedly we had but intelligence that obviously we
did not have.
Whistleblower protection becomes very effective in helping to root
out waste, fraud, and abuse. Some of the hearings that I have sat in on
where we have discussed how we made use of our contracting resources in
Iraq, for example, makes one wonder if we were just giving away the
valuable resources of the American people.
So this legislation not only protects the taxpayers' money, but it
also protects our troops, our soldiers, those who are in danger
oftentimes because accurate information has not been deployed. Mr.
Chairman, I urge passage of 985.
Mr. PLATTS. Mr. Chairman, I continue to reserve the balance of my
time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I see some of my distinguished colleagues here today,
specifically Ranking Member Davis, Congressman Shays. And to prepare
for this debate today, Mr. Chairman, I watched a movie, ``The
Insider,'' last night, because it was a classic example
[[Page H2523]]
of why we need whistleblower protection in this country. The sight of
those seven tobacco company CEOs standing before the committee on which
I am proud to serve, raising their hands and swearing that tobacco and
nicotine is not addictive, and the compelling personal story of Jeffrey
Weigand and the struggle he and his family went through are why we need
to support this bill today.
One of the reasons why we are here today is because of the compelling
stories of dozens of national security whistleblowers from multiple
Federal agencies who have provided sobering and exhaustive stories
about retaliation and retribution for speaking the truth.
{time} 1515
These accounts have been well documented before the committees of
this House.
Michael German was a highly regarded FBI agent working on domestic
terrorism cases for 16 years before quitting in frustration in 2004.
His whistleblowing concerned a case that, according to NBC's Dateline,
``involved a potential nightmare scenario: meetings between a home-
grown militia-type terrorism organization and an Islamic fundamentalist
group during which they discussed possible cooperation.''
Mr. German alleges that the FBI fumbled the case and then, after he
blew the whistle, falsified records in order to cover its mistakes. He
reported his concerns to his superiors and reportedly faced retaliation
for doing so, though a Department of Justice Inspector General report
substantiated many of his claims.
Mr. Chairman, I reserve the balance of my time.
Mr. PLATTS. Mr. Chairman, I reserve the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 3 minutes to the
distinguished gentleman from Michigan (Mr. Stupak).
Mr. STUPAK. Mr. Chairman, I thank the gentleman for yielding,
allowing me an opportunity to speak about this issue here before us.
I want to thank Mr. Waxman and the committee for reporting an
excellent bill. The Whistleblower Protection Enhancement Act is a long
overdue piece of legislation that will go a long way towards correcting
some of the abuses of the past and updating the whistleblower
protection system to face the challenges of the present.
For too long protections passed by Congress for good-faith
whistleblowers have been chipped away by executive agencies and the
courts. Court decisions have limited the scope of whistleblower
protections in a way that betrays the spirit of the original law. This
bill will clarify the rights of whistleblowers, including the right to
a prompt court proceeding if their employer challenges their right to
the protection.
The bill also protects whistleblowers who work in the national
security sector or who work for Federal contractors. This is a critical
provision. Under current law, national security employees have next to
no protection if they are retaliated against for reporting waste or
corruption. This is an extremely dangerous situation. If corruption or
abuse of power is happening in our intelligence and security agencies,
it should be a concern for all Americans. Employees who report abuses
in these sectors are doing a service to our national security. I am
glad to see that this bill would finally protect them.
I am also pleased to see protections strengthened for Federal
contractors. The growth of contracting under the current administration
has been astronomical. Under President Bush the Federal Government is
now spending nearly 40 cents of every discretionary dollar on contracts
with private companies, a record level. Much of this money has been
spent without any kind of oversight that would apply within a Federal
agency.
Protection for whistleblowers in the contracting sector is key for
improving congressional oversight and bringing potential waste and
mismanagement under control.
Let me be clear. This bill doesn't just protect whistleblowers. It
protects all Americans.
As chairman of the Oversight and Investigations Subcommittee of the
Energy and Commerce Committee, I know that every congressional
investigation relies on the willingness of individual witnesses to
speak up about what they have seen. These individuals risk their
careers and their reputations to expose instances of corruption, waste,
and abuse within our government. We owe them a debt of gratitude for
their courage. This bill is an important step towards making sure that
those individuals have the protection they deserve.
Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I would just like to again thank my colleagues who have
worked on this and give special thanks to the staff of the majority and
minority sides of the Oversight and Government Reform Committee both
this session and for the last two sessions that I have been involved in
this issue. We certainly wouldn't be here today without the tremendous
work of the staff as well as the leadership of then-Chairman Davis,
now-Ranking Member Davis, and current Chairman Waxman. So I appreciate
everyone's participation in moving this very important issue forward.
This truly is about doing right by our courageous Federal employees
who are willing to come forward when they see wrong and do right on
behalf of their fellow citizens.
Mr. Chairman, I yield back the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may
consume.
I also want to thank my colleagues for the bipartisan spirit of
support for this bill.
I want to just add a few more names to the record, in the remaining
time that I have available, of courageous whistleblowers. These are not
hypothetical situations we are talking about.
One of them, Richard Levernier, was employed at the Department of
Energy for 22 years and was in charge of testing security at U.S.
nuclear weapons facilities. Working through normal DOE channels, he
tried for years to get his superiors to address security weaknesses
that might allow terrorists to successfully assemble and detonate a
nuclear device at one of the facilities. But his superiors declined to
acknowledge that vulnerabilities existed.
When he faxed two unclassified Inspector General reports to the
press, DOE suspended his security clearance. At the time he was 2 years
away from retirement and eligible for a full pension. After he filed a
lawsuit against DOE for unjust termination, the Office of Special
Counsel conducted an investigation and concluded that the harassment
against Levernier constituted a systematically illegal reprisal. The
OSC also found a substantial likelihood that his underlying charges
were correct.
Another brave individual, Russell Tice, a former intelligence agent
at the National Security Agency, worked for 20 years in special access
programs known as ``black world programs and operations.'' He had his
security clearance revoked in May, 2005, after alerting his superiors
of suspicious activity by a coworker. NSA later dismissed him after he
raised questions about the legality of some NSA ``black world''
programs, including the eavesdropping by the Defense Department and the
NSA on American citizens. Mr. Tice wanted to talk to Congress about
what he feels are further abuses by the NSA, but has not been allowed
to do so.
Specialist Samuel J. Provance's unit in Iraq was instructed to
interrogate detainees in a way that he thought was immoral and
inappropriate, and he told his superiors. Instead of investigating his
claims, his superiors demoted him.
And, finally, Lieutenant Colonel Anthony Shaffer was demoted and his
security clearance stripped after he made protected disclosures to the
9/11 Commission about Able Danger, a pre-9/11 operation for combating
al Qaeda, and explained that there were DOD and DIA failures regarding
9/11.
This is not a hypothetical problem. Federal whistleblowers are being
silenced, and instances of waste, fraud, and abuse are not being
exposed. That is why I call on all my colleagues to support this bill.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN (Mr. Ross). The gentleman from Pennsylvania (Mr.
Carney) and the gentleman from Connecticut (Mr. Shays) each will
control 10 minutes.
The Chair recognizes the gentleman from Pennsylvania.
[[Page H2524]]
Mr. CARNEY. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I would like to commend Chairman Waxman, Chairman
Thompson, and others for their work on this long overdue and sorely
needed bill.
As chairman of the Homeland Security Subcommittee on Management,
Investigations, and Oversight, I have a vested interest in H.R. 985's
passage. I would like to thank Chairman Thompson for allowing me to
manage our committee's allotted time on the bill.
This bill extends whistleblower protections to Federal employees who
work on national security mainly in the intelligence area and workers
in the Transportation Security Administration, especially screeners, as
well as to Federal contractors.
As Chairman Waxman and others have noted, there is a tremendous need
to extend whistleblower protections for Federal workers or contractors,
our best sources for shining light on waste, fraud, and abuse.
This bill treats transportation security officers, or TSOs, sometimes
called ``screeners,'' the same as all other Department of Homeland
Security employees by giving them full whistleblower protections, which
TSOs currently do not have.
Mr. Chairman, others will tell you that TSOs have whistleblower
rights. This is debatably true on paper, but it has not been true in
practice.
The truth is, TSOs do not enjoy full whistleblower protections. TSOs
have limited whistleblower protections that come from a memorandum of
understanding, or MOU, that was entered into when the TSA was still
part of the Department of Transportation. Under the MOU, TSOs,
transportation screeners, can only bring a claim to the Office of
Special Counsel. They do not have a right of appeal or independent
review by another agency or court.
In 2004, while reviewing a TSO whistleblower claim in the case of
Schott v. The Department of Homeland Security, the Merit Systems
Protection Board, MSPB, ruled that the Homeland Security Act does not
provide TSOs with the right to MSPB review. Other DHS employees enjoy
the right to MSPB review.
Thus, as you can see, Mr. Chairman, the TSOs are currently treated
differently than other DHS personnel, including their fellow employees
within TSA.
This bill allows a whistleblower to go to court if their claim has
not been acted upon within 6 months. This bill permits the
whistleblower to bring an appeal on their case to any Federal Court of
Appeals having proper jurisdiction over the case, not just the Court of
Appeals for the Federal Circuit, as the law now stands.
I am also pleased that this bill provides the same rights to the
Office of Intelligence and Analysis employees at DHS as it does to
intelligence employees in other agencies. As we know, whistleblowers in
the intelligence community must be careful when they disclose certain
information. This bill helps govern how these intelligence-related
employees bring their claims while also adequately protecting any
sensitive or classified information that may be involved with their
claims.
Mr. Chairman, I want to note that H.R. 1, which passed the House in
January, tries to fix TSA's poor morale problem by giving TSOs
whistleblower rights and collective bargaining rights. The collective
bargaining rights are comparable to other law enforcement officers and
others within the DHS, such as Border Patrol and CBP officers.
Mr. Chairman, I am happy to vote for this bill as it not only makes
America safer and more secure, but it also allows for all employees to
report waste, fraud, or abuse of our vital and limited government
resources.
Mr. Chairman, I reserve the balance of my time.
Mr. SHAYS. Mr. Chairman, I yield myself such time as I may consume.
It is a pleasure to share this debate with Congressman Carney and to
know that former Chairman Davis, now ranking member, and former Ranking
Member Waxman, now chairman, have worked so closely together. And
tremendous kudos to Todd Platts for the work that he has done on this
legislation. This is a bipartisan effort for a very real reason,
whistleblowers need this protection.
All Federal employees are ethically bound to expose violations of
law, corruption, waste, and substantial danger to public health or
safety. But meeting that obligation to ``blow the whistle'' on
coworkers and superiors has never ever been easy.
{time} 1530
Breaking bureaucratic ranks to speak unpleasant and unwelcome truths
takes courage and risks involving the wrath of those with the power and
motive to shoot the messenger. Yet seldom in our history has the need
for the whistleblower's unfiltered voice been more urgent, particularly
in the realms of national security and intelligence. Extraordinary
powers needed to wage war on our enemies could, if unchecked, inflict
collateral damage on the very rights and freedoms we fight to protect.
The use of expansive executive authority demands equally expansive
scrutiny by Congress and the public. One absolute essential source of
information to sustain that oversight is whistleblowers.
But those with whom we trust the Nation's secrets are too often
treated like second-class citizens when it comes to asserting their
rights and responsibilities to speak truth to power. Exempted from
legal protections available to most other Federal employees under the
Merit System Protection Board, referred to as the MSPB, national
security whistleblowers must traverse a confusing maze of inconsistent
regulations and procedures that too often afford them far less process
than is due.
The legislation before us today takes the important step of creating
a procedure for whistleblowers handling sensitive national security
information, to have their claims investigated and adjudicated on a
timely basis. These claims would be investigated by the agency
Inspector General, as they are now, who will keep all classified
information secure, while providing a fair and independent mechanism
for investigation and adjudication. Should the Inspector General, and
we have an Inspector General in each of these agencies, not reach a
timely decision, or the employees wish to appeal, our legislation
allows the appropriate Federal Circuit Court to hear the case.
This new approach will give these employees effective protection,
while at the same time ensuring sensitive and classified information
stays secure.
While I believe an amendment to bring the Department of Homeland
Security intelligence-related employees under the same provisions as
employees of intelligence agencies such as the CIA or FBI should have
been made in order, I am grateful we are finally moving legislation
that will allow employees who have faced whistleblower retaliation to
get on with their lives.
I also believe suspension or revocation of a security clearance has
the same chilling effect as demotion or firing, but clearance actions
are virtually unreviewable. Those with whom we trust the Nation's
secrets should not be second-class citizens when it comes to asserting
their rights and obligations to speak truth to power. Employees should
never face termination or harassment for acting courageously to
identify improprieties in the workplace, especially when their
observations could help improve safety or eliminate waste, abuse or
fraud.
Another important step this legislation takes is to expand
whistleblower protections to Transportation Security Administration,
TSA, screeners for the first time, and that is why the Homeland
Security Committee has been given time for this debate. TSA baggage
screeners currently do not have whistleblower rights, and this bill
will extend to screeners the same protections that all other Department
of Homeland Security employees enjoy.
With the full whistleblower protections of this bill, TSA workers
could report violations of law, mismanagement, waste, abuse of
authority, or dangers to public health and safety, including those
regarding or relating solely to homeland or national security.
The bottom line is with more power to the executive branch must come
more oversight. That is why I strongly support this legislation. I
think that is why this legislation is strongly supported on both sides
of the aisle.
Mr. Chairman, I reserve the balance of my time.
[[Page H2525]]
Mr. CARNEY. Mr. Chairman, I yield 4 minutes to the distinguished
gentlelady from the State of Texas (Ms. Jackson-Lee).
Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished
gentleman for yielding.
Mr. Chairman, I thank Mr. Carney for his leadership and work, along
with, as I mentioned earlier, the chairman of the full Committee on
Homeland Security, Mr. Thompson, and the ranking member.
There is no doubt that whistleblower protection is intimately
interwoven with the work and the issues and the mission and obligations
of the Homeland Security Department and the Homeland Security
Committee, both in the House and the other body. We have too often seen
debacles occurring, tragically, and I believe with a clean
whistleblower protection, where workers are aware of their rights, we
are enhancing the security of America.
This bill in particular responds to the transportation security
officers, sometimes called screeners. As the chairwoman of the
Subcommittee on Transportation Security with oversight over our
transportation security screeners, it is clear that giving them full
whistleblower protection is crucial, and it is also clear that they do
not have it now.
Others will tell you that TSOs have whistleblower protection rights.
They do not. While this may be true on paper, it is not true in
practice. The truth is that transportation security officers do not
enjoy full whistleblower protections. Specifically TSOs have limited
whistleblower protections that come under a memorandum of
understanding, an MOU, that was entered into when TSA was still part of
the Department of Transportation. Under the MOU, TSOs can only bring a
claim to the Office of Special Counsel. They do not have a right of
appeal or independent review by another agency or court.
What that means, Mr. Chairman, is they can be fired. So if a
transportation security officer sees a breach at one of the thousands
upon thousands of airports around America, they have no protection to
protect the traveling public.
In 2004, while reviewing a TSO whistleblower claim in the case of
Schott v. The Department of Homeland Security, the Merit System
Protection Board ruled that the Homeland Security Act does not provide
TSOs with the right to MSPB review, which review rights are enjoyed by
other department employees.
Thus, as you can see, Mr. Chairman, this bill is crucial to the
transportation security officers, who are treated more differently than
any other Department of Homeland Security personnel, including their
fellow employees within TSA. The bill allows a whistleblower to go to
court if their claim has not been acted upon within 6 months.
There is much that the TSA screener says as he or she watches day
after day at whether the procedures that we have in place really work.
In fact, I know there are procedures that go on at the screening site
where it is crucial that an astute, well-trained TSA employee,
screener, can in fact be able to enhance the security of America by
telling the truth.
I am glad Mr. Carney is chairing our Management Subcommittee, because
he is going to be talking about training issues. They are crucial. This
bill permits, Mr. Chairman, as I close, the whistleblower to bring an
appeal on their case to any Federal Court of Appeals having proper
jurisdiction over the case, not just a Court of Appeals for the Federal
Circuit, as the law now stands. That means we have real protection
against firing and termination just because a transportation security
officer is doing his or her job.
I am also pleased this bill provides the same rights to the
Department's Office of Intelligence and Analysis employees as it does
to intelligence employees in other agencies. As we know, whistleblowers
in the Intelligence Committee must be careful when they disclose
certain information. This bill helps govern how these people bring
their claims, while also adequately protecting any sensitive or
classified information that may be involved with such claims.
Mr. Chairman, I want to note that H.R. 1, which passed the House in
January, tries to fix TSA's poor morale problem by giving TSO
whistleblower rights and collective bargaining rights. These collective
bargaining rights are comparable to other law enforcement officers and
others within the Department, such as Border Patrol and others.
I ask my colleagues to support this. This is a new day, a fresh day
for homeland security in America, giving these officers the right to
tell the truth and do their job and protect America.
Mr. Chairman, I rise today in strong support of H.R. 985, the
``Whistleblower Protection Enhancement Act of 2007,'' which extends
whistleblower protections to federal employees and contractors working
in the area of national security and intelligence, including screeners
at the Transportation Security Administration (TSA).
Mr. Chairman, I have long been a strong proponent of whistleblower
protection. As a Member of Congress from Houston, home of NASA's
Johnson Space Center, I have long been involved in developing
procedures and protections to ensure that concerns affecting the public
health and safety are made known and addressed in an atmosphere free of
intimidation, threats, harassment, and reprisal.
For example, during a hearing held a few years ago by the Science
Committee of which I was a member, Admiral Gehman and representatives
of the Columbia Accident Investigation Board explained how fear of
retaliation by management led some engineers to withhold their concerns
about the safety and well-being of NASA missions and crew. Reports
received after the tragic Colombia space shuttle accident indicated the
accident may have been avoided had there been in place a process that
would foster an environment encouraging employees and contractors to
come forward with information that could avert future threats to the
safety of astronauts, mission specialists, and other workers.
My legislation created a NASA Safety Reporting Board that would
rapidly screen such disclosures and either report them directly to the
Administrator, or reject them as non-eligible--perhaps with a
suggestion to seek redress through internal means, e.g., union and OSHA
representatives, and agency ombudsmen. Afterward, the Board would be
tasked with keeping a registry of reporting workers and with dispute
resolution in the event that the worker alleges retaliation by
management. Coupling the reporting and anti-retaliation functions in
one board would limit the scope of the board to truly vital issues, and
make workers feel confident that their concerns will not be lost or
buried in the bureaucracy of standard whistleblower or OSHA claims. The
Safety Reporting Board would be comprised of both NASA managers and
non-managers, with diverse expertise, representing multiple Centers,
and include an advocate for workers.
Because we saw the lack of whistle blower protection for NASA
employers as a safety threat to the nation's commitment to space
exploration and travel, we took action to remove this impediment. The
effort has been successful and we are reaping the benefits to this day.
Mr. Chairman, we need to extend the benefits of whistleblower
protection from NASA to other vital Government agencies and functions.
There is a tremendous need to protect our best sources for identifying
waste fraud and abuse--Federal workers and contractors. H.R. 985 treats
Transportation Security Officers (TSOs), sometimes called
``screeners,'' the same as all other Department employees by giving
them full whistleblower protections, which TSOs currently do not have.
Mr. Chairman, contrary to assertions by opponents of the bill, TSOs
do not have any meaningful whistleblower rights. The truth is TSOs do
not enjoy full whistleblower protections. Specifically, TSOs enjoy
little more than minimal whistleblower protections deriving from a
Memorandum of Understanding (MOU) entered into when TSA was still part
of the Department of Transportation.
Under this MOU, screeners can only bring a claim to the Office of
Special Counsel; they do not have a right of appeal or to seek
independent review by another agency or court.
Mr. Chairman, in 2004, the Merit Systems Protection Board (MSPB)
ruled in Schott v. Department of Homeland Security, that the Homeland
Security Act does not provide TSA screeners the right to bring a claim
before the MSPB, even though such rights were enjoyed by all other
Department employees.
Thus, as you can see Mr. Chairman, TSOs are treated differently than
other Department of Homeland Security personnel--including fellow
employees within TSA.
This bill allows a whistleblower to seek relief in Federal circuit
court, if his or her claim has not been acted upon within 6 months. In
addition, H.R. 985 permits the whistleblower to bring an appeal on
their case to any Federal circuit court of appeals having in personam
jurisdiction, not just the Court of Appeals for the Federal Circuit as
is the case under current law.
[[Page H2526]]
I am also pleased that this bill provides the same rights to the
Department's Office of Intelligence and Analysis employees as it does
to intelligence employees in other agencies. I do not have to tell you,
Mr. Chairman, that whistleblowers in the intelligence community must be
careful when they disclose certain information.
H.R. 985 set forth procedures which enable whistleblowers to assert
their claims, while at the same time adequately protecting any
sensitive or classified information involved with such claims.
Mr. Chairman, I note that H.R. 1, which passed the House in January,
seeks to improve the poor morale problem at TSA by giving TSO employees
whistleblower and collective bargaining rights. These collective
bargaining rights are comparable to other law enforcement officers and
others within the Department, such as the Border Patrol, Customs and
Border Protection Officers.
Mr. Chairman, as a senior member of the Homeland Security Committee
and chair of the Subcommittee on Transportation Security and
Infrastructure Protection, I am proud to support H.R. 985. This bill
will help the Federal Government keep America safer and more secure by
encouraging and protecting employees who come forward to report waste,
fraud, wrongdoing, or abuse of vital and limited Government resources.
I urge all members to join me in voting for this important legislation.
Mr. SHAYS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, when you give the administration of any party the kind
of powers we need to give an administration today, you have to have a
strong whistleblower statute, a strong civil liberties board, and
aggressive congressional oversight. There are two inconvenient truths
we need to deal with, in society today. One is what Al Gore talks
about: the environment, and national security issues related to the
environment.
Another inconvenient truth is what the 9/11 Commission points out to
us, that we are confronting deadly radical Islamist terrorism. And that
requires stronger statutes to deal with it.
We had an attempt in the late eighties by the first President Bush to
have a workable whistleblower statute. That statute was eroded by the
Federal Court in D.C. We saw the Clinton administration try to
strengthen it in 1994, and again it was weakened by the courts. This is
another attempt to strengthen this statute.
We have a weakness in our whistleblower statute that we must address.
And it is being addressed on a bipartisan basis.
We have a Merit System Protection Board that deals with everyone
outside of the intelligence community, but it doesn't render decisions
soon enough. We are requiring that decisions be rendered within 180
days. If not, a whistleblower can go to court. And we now allow
whistleblowers to appeal decisions they disagree with.
But we have had a more serious problem. This is the area of concern
relating to the intelligence community. Whistleblowers have had to go
to their own individual Inspector Generals. The Inspector Generals
follow different practices. We are now making sure those practices
conform to the Merit System Protection Board practices.
The biggest challenge was when you take away someone's security
clearance, it is like telling a bus driver you don't have a license to
drive a bus. You make that whistleblower meaningless to the agency, and
it is a huge disincentive to speak out.
We are not saying that can't be taken away in this legislation. We
are saying it needs to be studied by the GAO. But what we are also
doing is giving the employee the right to go to court within 180 days
if a decision isn't rendered, and to have that same ability to make
sure their case is heard if they disagree with the decision.
I can't say how strongly enough I support this legislation. This
legislation, which passed the committee last year has been improved
this year. But, again, I want to say, Mr. Platts, you deserve a
tremendous amount of credit for what you have done and I congratulate
my colleagues on the other side of the aisle for bringing this
legislation up so quickly.
Mr. Chairman, I reserve the balance of my time.
Mr. PLATTS. I yield myself such time as I may consume.
Mr. Chairman, I do urge my colleagues to vote for H.R. 985. It is
important for any number of reasons. The bipartisan nature of this bill
itself is I think in many ways reason enough. We have reached across
the aisle in a bipartisan fashion to make sure that we do what is right
for the American public, for the traveling public and for the safety of
all of us.
Mr. Chairman, as an intelligence officer myself, I know full well
from firsthand experience the importance of having lines of
communication open so the right information is getting to
decisionmakers, and that right information can often include telling us
what is not going right, what has gone wrong and how we can fix it.
{time} 1545
It is vital that people have the opportunity and avenues and conduits
through which they can give good information, information when things
are going well and information when things are not going well. All of
this ultimately makes us a safer, stronger Nation. That is why I urge
all of my colleagues to vote for H.R. 985.
Mrs. LOWEY. Mr. Chairman, I want to thank Chairman Waxman and Ranking
Member Davis of the Oversight and Government Reform Committee for
bringing this bill to the floor.
I rise in support of this bill and in particular, the provisions
extending whistleblower protections to federal employees who work on
national security matters, including those employed by the
Transportation Security Administration.
The simple fact is that TSA screeners are treated differently than
other Department of Homeland Security personnel. That is why I authored
the provisions in the Implementing the 9/11 Commission Recommendations
Act of 2007, which the House passed in January, that would give TSOs
whistleblower and collective bargaining rights.
Astonishingly, the President has threatened to veto the 9/11 bill
over this provision.
TSA screeners are frontline security workers who perform a crucial
and often grueling job that requires training, experience, and
patience. We need workers who have mastered the job and providing
whistleblower protections to TSA employees is part of a broader
strategy to ensure that these individuals will make a career of
protecting our Nation.
I intend to vote for this bill not only to strengthen protections for
whistleblowers and restore accountability to the federal government,
but to advance this critical TSA provision through the legislative
process and show the President that we are serious about giving our
frontline security workers the same rights as other Department of
Homeland Security personnel.
I urge my colleagues to do the same.
Mr. THOMPSON of Mississippi. Mr. Chairman, I applaud Chairman Waxman,
Ranking Member Davis, and others for their work on this badly needed
bill.
This bill extends whistleblower protections to Federal employees who
work on national security, mainly in the intelligence area, workers in
the Transportation Security Administration, especially screeners, and
Federal contractors, amongst others.
As Chairman Waxman correctly identified, there is a tremendous need
to protect Federal workers and contractors who are our best sources of
identifying waste fraud, abuse or security problems.
This bill treats Transportation Security Officers (TSOs) the same as
all other Department employees by giving them full whistleblower
protections, which TSOs currently do not have.
Mr. Chairman, others will tell you that TSOs have adequate
whistleblower rights. While this is debatably true on paper, it is not
true in practice.
The truth is TSOs do not enjoy full whistleblower protections. They
have extremely limited whistleblower protections granted by a
Memorandum of Understanding (MOU) that was entered into when TSA was
part of the Department of Transportation.
In fact, while reviewing a TSO whistleblower claim in 2004, the Merit
Systems Protection Board (MSPB) ruled that the Homeland Security Act
does not provide TSO whistleblowers with a right to MSPB review.
Compared to other Department employees who do enjoy the right to MSPB
review, TSOs are treated differently.
Under the MOU, TSOs can only bring a claim to the Office of Special
Counsel, but TSOs have no right of outside appeal to either the MSPB or
any other independent agency or court, like all other the Department
employees can.
This bill remedies this situation by giving the TSOs full
whistleblower rights, including the right to independent outside
review.
Besides independent outside review, this bill also allows a
whistleblower to go to court if their claim has not been acted on
within 6 months of filing.
This bill permits the whistleblower to bring an appeal on their case
to any federal court of appeals having proper jurisdiction over the
case.
I am also pleased that this bill provides the same rights to the
Department's Office of Intelligence and Analysis employees as it does
to intelligence employees in other agencies.
As we know, whistleblowers in the intelligence community must be
careful when they disclose certain information.
[[Page H2527]]
This bill helps govern how these people can bring their claims, but
it also adequately protects any sensitive or classified information
that may be involved.
Mr. Chairman, I want to note that H.R. 1, which passed the House in
January, has some similar effects as H.R. 985, mainly that it provides
whistleblower protections to TSOs.
H.R. 1 also fixes the poor morale problems by allowing collective
bargaining rights for TSOs, similar to other law enforcement officers
and others within the Department, such as the Border Patrol and Customs
and Border Protection Officers.
Nonetheless, I am happy to vote for H.R. 985 today as it not only
makes America safer and more secure, but it also allows for all
employees to report waste, fraud, or abuse of vital and limited
government resources.
I urge my colleagues to support the bill.
Mrs. MALONEY of New York. Mr. Chairman, as a cosponsor of this
legislation, I rise in strong support of H.R. 985, the Whistleblower
Protection Act.
I think one thing we can all agree on is that the current system is
broken and whistleblowers are simply not being protected.
Too often our system retaliates against whistleblowers rather than
thanking them for standing up for what is right.
The Oversight and Government Reform Committee has heard from many of
them, including Sibel Edmonds, the former FBI Translator who was fired
for raising concerns about the way the FBI was translating important
information about our security.
Her reward for blowing the whistle included having her security
clearance stripped, being fired from her job and being forced to endure
a years-long court battle that prevented her from any sort of normal
life.
Things were so bad with her case that when she testified before the
committee she literally could not tell us anything about her life--
where she was born or which languages she speaks.
Sadly, she is not alone.
The Whistleblower Protection Act (WPA) has been weakened by court
cases in recent years and even the weak protections offered under the
WPA do not apply to national security whistleblowers or contractors at
those agencies.
The Oversight Committee repeatedly has heard from people who have had
their security clearances revoked after blowing the whistle.
We have been told that wrongdoers have been allowed to continue their
actions while the whistleblower has been the one made to suffer.
In the 109th Congress I was joined by my colleague Representative
Diane Watson in offering an amendment during the Committee's
consideration of the Federal Employee Protection of Disclosures Act
that would have extended whistleblower protections to employees in
national security and the intelligence community.
I am thrilled that this legislation will extend these important
protections to employees of intelligence agencies and to federal
contractors.
Passage of this bill is long overdue.
I urge my colleagues to vote for this legislation.
Mr. DAVIS of Illinois. Mr. Chairman, I am pleased to have joined
Chairman Waxman and Ranking Member Davis in sponsoring the
Whistleblower Protection Enhancement Act of 2007.
The Whistleblower Protection Act of 2007 strengthens current law to
protect whistleblowers in Federal agencies. Since 1994, the
Whistleblower Protection Act has been gutted by judicial activism. The
legislation would grant whistleblowers the right to challenge reprisals
in Federal district court and clarifies that ``any'' protected
disclosure applies to all lawful communication of misconduct. It would
extend whistleblower protection rights to whistleblowers in the
intelligence community and would extend these rights to federally
funded contractors.
Extending whistleblower protection to the intelligence community is a
critical aspect of this legislation. Most national security
whistleblowers are not protected from retaliation by law. The National
Security Whistleblower Coalition reports that the median number of
years of government service for national security whistleblowers is 22
years. These employees are experienced and dedicated and their careers
should not be put at risk when they report waste, fraud, and abuse.
Protecting national security whistleblowers from retaliation is in the
best interest of our national security.
I do have concerns about one group of workers that do not have
whistleblower protection--postal workers. The Postal Service is not, by
law, subject to the Whistleblower Protection Act--WPA. The Service's
Employee and Labor Relations Manual--ELM--contains provisions adopted
by the service that replicate the more significant protections found in
the WPA for victims of unlawful reprisal. The ELM provisions, however,
only concern ``corrective actions''; they do not mandate discipline for
managers who retaliate against whistleblowers.
As chairman of the Subcommittee on Federal Workforce, Postal Service,
and the District of Columbia, I will hold a hearing to examine the need
to extend full whistleblower protections to postal employees.
Chairman Waxman, thank you for your advocacy in this area.
Mr. PLATTS. Mr. Chairman, I yield back the balance of my time.
Mr. SHAYS. Mr. Chairman, I thank my colleague for his presentation,
and I yield back the balance of my time.
The Acting CHAIRMAN. All time for general debate has expired.
Pursuant to the rule, an amendment in the nature of a substitute
consisting of the text of the bill, modified by the amendments printed
in the bill, is adopted. The bill, as amended, shall be considered as
an original bill for the purpose of further amendment under the 5-
minute rule and shall be considered read.
The text of the bill, as amended, is as follows:
H.R. 985
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Whistleblower Protection Enhancement Act of 2007''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Clarification of disclosures covered.
Sec. 3. Covered disclosures.
Sec. 4. Rebuttable presumption.
Sec. 5. Nondisclosure policies, forms, and agreements.
Sec. 6. Exclusion of agencies by the President.
Sec. 7. Disciplinary action.
Sec. 8. Government Accountability Office study on revocation of
security clearances.
Sec. 9. Alternative recourse.
Sec. 10. National security whistleblower rights.
Sec. 11. Enhancement of contractor employee whistleblower protections.
Sec. 12. Prohibited personnel practices affecting the Transportation
Security Administration.
Sec. 13. Clarification of whistleblower rights relating to scientific
and other research.
Sec. 14. Effective date.
SEC. 2. CLARIFICATION OF DISCLOSURES COVERED.
Section 2302(b)(8) of title 5, United States Code, is
amended--
(1) in subparagraph (A)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction as to time, place, form, motive, context, or
prior disclosure made to any person by an employee or
applicant, including a disclosure made in the ordinary course
of an employee's duties, that the employee or applicant
reasonably believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation''; and
(2) in subparagraph (B)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction as to time, place, form, motive, context, or
prior disclosure made to any person by an employee or
applicant, including a disclosure made in the ordinary course
of an employee's duties, of information that the employee or
applicant reasonably believes is evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation (other than a violation of this
section)''.
SEC. 3. COVERED DISCLOSURES.
Section 2302(a)(2) of title 5, United States Code, is
amended--
(1) in subparagraph (B)(ii), by striking ``and'' at the
end;
(2) in subparagraph (C)(iii), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(D) `disclosure' means a formal or informal
communication, but does not include a communication
concerning policy decisions that lawfully exercise
discretionary authority unless the [employee] employee or
applicant providing the disclosure reasonably believes that
the disclosure evidences--
``(i) any violation of any law, rule, or regulation; or
``(ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.''.
SEC. 4. REBUTTABLE PRESUMPTION.
Section 2302(b) of title 5, United States Code, is amended
by adding at the end the following: ``For purposes of
paragraph (8), any presumption relating to the performance of
a duty by an employee who has authority to take, direct
others to take, recommend, or approve any personnel action
may be rebutted by substantial evidence. For purposes of
paragraph (8), a determination as to whether an employee or
applicant reasonably believes that such employee or applicant
has disclosed information that evidences any violation of
law, rule, regulation,
[[Page H2528]]
gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health or safety shall be made by determining whether a
disinterested observer with knowledge of the essential facts
known to or readily ascertainable by the employee or
applicant could reasonably conclude that the actions of the
Government evidence such violations, mismanagement, waste,
abuse, or danger.''.
SEC. 5. NONDISCLOSURE POLICIES, FORMS, AND AGREEMENTS.
(a) Personnel Action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(1) in clause (x), by striking ``and'' at the end;
(2) by redesignating clause (xi) as clause (xii); and
(3) by inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and''.
(b) Prohibited Personnel Practice.--Section 2302(b) of
title 5, United States Code, is amended--
(1) in paragraph (11), by striking ``or'' at the end;
(2) by redesignating paragraph (12) as paragraph (14); and
(3) by inserting after paragraph (11) the following:
``(12) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement: `These provisions are
consistent with and do not supersede, conflict with, or
otherwise alter the employee obligations, rights, or
liabilities created by Executive Order No. 12958; section
7211 of title 5, United States Code (governing disclosures to
Congress); section 1034 of title 10, United States Code
(governing disclosures to Congress by members of the
military); section 2302(b)(8) of title 5, United States Code
(governing disclosures of illegality, waste, fraud, abuse, or
public health or safety threats); the Intelligence Identities
Protection Act of 1982 (50 U.S.C. 421 and following)
(governing disclosures that could expose confidential
Government agents); and the statutes which protect against
disclosures that could compromise national security,
including sections 641, 793, 794, 798, and 952 of title 18,
United States Code, and section 4(b) of the Subversive
Activities Control Act of 1950 (50 U.S.C. 783(b)). The
definitions, requirements, obligations, rights, sanctions,
and liabilities created by such Executive order and such
statutory provisions are incorporated into this agreement and
are controlling.';
``(13) conduct, or cause to be conducted, an investigation,
other than any ministerial or nondiscretionary factfinding
activities necessary for the agency to perform its mission,
of an employee or applicant for employment because of any
activity protected under this section; or''.
SEC. 6. EXCLUSION OF AGENCIES BY THE PRESIDENT.
Section 2302(a)(2)(C) of title 5, United States Code, is
amended by striking clause (ii) and inserting the following:
``(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, or the National
Security Agency; or
``(II) as determined by the President, any Executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action; or''.
SEC. 7. DISCIPLINARY ACTION.
Section 1215(a)(3) of title 5, United States Code, is
amended to read as follows:
``(3)(A) A final order of the Board may impose--
``(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
``(ii) an assessment of a civil penalty not to exceed
$1,000; or
``(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
``(B) In any case in which the Board finds that an employee
has committed a prohibited personnel practice under paragraph
(8) or (9) of section 2302(b), the Board shall impose
disciplinary action if the Board finds that the activity
protected under such paragraph (8) or (9) (as the case may
be) was the primary motivating factor, unless that employee
demonstrates, by a preponderance of the evidence, that the
employee would have taken, failed to take, or threatened to
take or fail to take the same personnel action, in the
absence of such protected activity.''.
SEC. 8. GOVERNMENT ACCOUNTABILITY OFFICE STUDY ON REVOCATION
OF SECURITY CLEARANCES.
(a) Requirement.--The Comptroller General shall conduct a
study of security clearance revocations, taking effect after
1996, with respect to personnel that filed claims under
chapter 12 of title 5, United States Code, in connection
therewith. The study shall consist of an examination of the
number of such clearances revoked, the number restored, and
the relationship, if any, between the resolution of claims
filed under such chapter and the restoration of such
clearances.
(b) Report.--Not later than 270 days after the date of the
enactment of this Act, the Comptroller General shall submit
to the Committee on Oversight and Government Reform of the
House of Representatives and the Committee on Homeland
Security and Governmental Affairs of the Senate a report on
the results of the study required by subsection (a).
SEC. 9. ALTERNATIVE RECOURSE.
(a) In General.--Section 1221 of title 5, United States
Code, is amended by adding at the end the following:
``(k)(1) If, in the case of an employee, former employee,
or applicant for employment who seeks corrective action (or
on behalf of whom corrective action is sought) from the Merit
Systems Protection Board based on an alleged prohibited
personnel practice described in section 2302(b)(8), no final
order or decision is issued by the Board within 180 days
after the date on which a request for such corrective action
has been duly submitted (or, in the event that a final order
or decision is issued by the Board, whether within that 180-
day period or thereafter, then, within 90 days after such
final order or decision is issued, and so long as such
employee, former employee, or applicant has not filed a
petition for judicial review of such order or decision under
subsection (h))--
``(A) such employee, former employee, or applicant may,
after providing written notice to the Board, bring an action
at law or equity for de novo review in the appropriate United
States district court, which shall have jurisdiction over
such action without regard to the amount in [controversy;]
controversy, and which action shall, at the request of either
party to such action, be tried by the court with a jury; and
``(B) in any such action, the court--
``(i) shall apply the standards set forth in subsection
(e); and
``(ii) may award any relief which the court considers
appropriate, including any relief described in subsection
(g).
An appeal from a final decision of a district court in an
action under this paragraph may, at the election of the
appellant, be taken to the Court of Appeals for the Federal
Circuit (which shall have jurisdiction of such appeal), in
lieu of the United States court of appeals for the circuit
embracing the district in which the action was brought.
``(2) For purposes of this subsection, the term
`appropriate United States district court', as used with
respect to an alleged prohibited personnel practice, means
the United States district court for the district in which
the prohibited personnel practice is alleged to have been
committed, the judicial district in which the employment
records relevant to such practice are maintained and
administered, or the judicial district in which resides the
employee, former employee, or applicant for employment
allegedly affected by such practice.
``(3) This subsection applies with respect to any appeal,
petition, or other request for corrective action duly
submitted to the Board, whether pursuant to section
1214(b)(2), the preceding provisions of this section, section
7513(d), or any otherwise applicable provisions of law, rule,
or regulation.''.
(b) Review of MSPB Decisions.--Section 7703(b) of such
title 5 is amended--
(1) in the first sentence of paragraph (1), by striking
``the United States Court of Appeals for the Federal
Circuit'' and inserting ``the appropriate United States court
of appeals''; and
(2) by adding at the end the following:
``(3) For purposes of the first sentence of paragraph (1),
the term `appropriate United States court of appeals' means
the United States Court of Appeals for the Federal [Circuit.]
Circuit, except that in the case of a prohibited personnel
practice described in section 2302(b)(8) (other than a case
that, disregarding this paragraph, would otherwise be subject
to paragraph (2)), such term means the United States Court of
Appeals for the Federal Circuit and any United States court
of appeals having jurisdiction over appeals from any United
States district court which, under section 1221(k)(2), would
be an appropriate United States district court for purposes
of such prohibited personnel practice.''.
(c) Compensatory Damages.--Section 1221(g)(1)(A)(ii) of
such title 5 is amended by striking all after ``travel
expenses,'' and inserting ``any other reasonable and
foreseeable consequential damages, and compensatory damages
(including attorney's fees, interest, reasonable expert
witness fees, and costs).''.
[(c)] (d) Conforming Amendments.--
(1) Section 1221(h) of such title 5 is amended by adding at
the end the following:
``(3) Judicial review under this subsection shall not be
available with respect to any decision or order as to which
the employee, former employee, or applicant has filed a
petition for judicial review under subsection (k).''.
(2) Section 7703(c) of such title 5 is amended by striking
``court.'' and inserting ``court, and in the case of a
prohibited personnel practice described in section 2302(b)(8)
brought under any provision of law, rule, or regulation
described in section 1221(k)(3), the employee or applicant
shall have the right to de novo review in accordance with
section 1221(k).''.
SEC. 10. NATIONAL SECURITY WHISTLEBLOWER RIGHTS.
(a) In General.--Chapter 23 of title 5, United States Code,
is amended by inserting after section 2303 the following:
``Sec. 2303a. National security whistleblower rights
``(a) Prohibition of Reprisals.--
[[Page H2529]]
``(1) In general.--In addition to any rights provided in
section 2303 of this title, title VII of Public Law 105-272,
or any other provision of law, an employee, former employee,
or applicant for employment in a covered agency may not be
discharged, demoted, or otherwise discriminated against
(including by denying, suspending, or revoking a security
clearance, or by otherwise restricting access to classified
or sensitive information) as a reprisal for making a
disclosure described in paragraph (2).
``(2) Disclosures described.--A disclosure described in
this paragraph is any disclosure of covered information which
is made--
``(A) by an employee, former employee, or applicant for
employment in a covered agency (without restriction as to
time, place, form, motive, context, or prior disclosure made
to any person by an employee, former employee, or applicant,
including a disclosure made in the course of an employee's
duties); and
``(B) to an authorized Member of Congress, an authorized
official of an Executive agency, an authorized official of
the Department of Justice, or the Inspector General of the
covered agency in which such employee is employed, such
former employee was employed, or such applicant seeks
employment.
``(b) Investigation of Complaints.--An employee, former
employee, or applicant for employment in a covered agency who
believes that such employee, former employee, or applicant
has been subjected to a reprisal prohibited by subsection (a)
may submit a complaint to the Inspector General and the head
of the covered agency. The Inspector General shall
investigate the complaint and, unless the Inspector General
determines that the complaint is frivolous, submit a report
of the findings of the investigation within 120 days to the
employee, former employee, or applicant and to the head of
the covered agency.
``(c) Remedy.--
``(1) Within 180 days of the filing of the complaint, the
head of the covered agency shall, taking into consideration
the report of the Inspector General under subsection (b) (if
any), determine whether the employee, former employee, or
applicant has been subjected to a reprisal prohibited by
subsection (a), and shall either issue an order denying
relief or shall implement corrective action to return the
employee, former employee, or applicant, as nearly as
possible, to the position he would have held had the reprisal
not occurred, including voiding any directive or order
denying, suspending, or revoking a security clearance or
otherwise restricting access to classified or sensitive
information that constituted a reprisal, as well as providing
back pay and related benefits, medical costs incurred, travel
expenses, [and any other reasonable and foreseeable
consequential damages including attorney's fees and costs.]
any other reasonable and foreseeable consequential damages,
and compensatory damages (including attorney's fees,
interest, reasonable expert witness fees, and costs). If the
head of the covered agency issues an order denying relief, he
shall issue a report to the employee, former employee, or
applicant detailing the reasons for the denial.
``(2)(A) If the head of the covered agency, in the process
of implementing corrective action under paragraph (1), voids
a directive or order denying, suspending, or revoking a
security clearance or otherwise restricting access to
classified or sensitive information that constituted a
reprisal, the head of the covered agency may re-initiate
procedures to issue a directive or order denying, suspending,
or revoking a security clearance or otherwise restricting
access to classified or sensitive information only if those
re-initiated procedures are based exclusively on national
security concerns and are unrelated to the actions
constituting the original reprisal.
``(B) In any case in which the head of a covered agency re-
initiates procedures under subparagraph (A), the head of the
covered agency shall issue an unclassified report to its
Inspector General and to authorized Members of Congress (with
a classified annex, if necessary), detailing the
circumstances of the agency's re-initiated procedures and
describing the manner in which those procedures are based
exclusively on national security concerns and are unrelated
to the actions constituting the original reprisal. The head
of the covered agency shall also provide periodic updates to
the Inspector General and authorized Members of Congress
detailing any significant actions taken as a result of those
procedures, and shall respond promptly to inquiries from
authorized Members of Congress regarding the status of those
procedures.
``(3) If the head of the covered agency has not made a
determination under paragraph (1) within 180 days of the
filing of the complaint (or he has issued an order denying
relief, in whole or in part, whether within that 180-day
period or thereafter, then, within 90 days after such order
is issued), the employee, former employee, or applicant for
employment may bring an action at law or equity for de novo
review to seek any corrective action described in paragraph
(1) in the appropriate United States district court (as
defined by section 1221(k)(2)), which shall have jurisdiction
over such action without regard to the amount in
[controversy.] controversy, and which action shall, at the
request of either party to such action, be tried by the court
with a jury. [A petition to review a final decision under
this paragraph shall be filed in the United States Court of
Appeals for the Federal Circuit.] An appeal from a final
decision of a district court in an action under this
paragraph may, at the election of the appellant, be taken to
the Court of Appeals for the Federal Circuit (which shall
have jurisdiction of such appeal), in lieu of the United
States court of appeals for the circuit embracing the
district in which the action was brought.
``(4) An employee, former employee, or applicant adversely
affected or aggrieved by an order issued under paragraph (1),
or who seeks review of any corrective action determined under
paragraph (1), may obtain judicial review of such order or
determination in the United States Court of Appeals for the
Federal [Circuit.] Circuit or any United States court of
appeals having jurisdiction over appeals from any United
States district court which, under section 1221(k)(2), would
be an appropriate United States district court. No petition
seeking such review may be filed more than 60 days after
issuance of the order or the determination to implement
corrective action by the head of the agency. Review shall
conform to chapter 7.
``(5)(A) If, in any action for damages or relief under
paragraph (3) or (4), an Executive agency moves to withhold
information from discovery based on a claim that disclosure
would be inimical to national security by asserting the
privilege commonly referred to as the `state secrets
privilege', and if the assertion of such privilege prevents
the [plaintiff] employee, former employee, or applicant from
establishing an element in support of the [plaintiff's]
employee's, former employee's, or applicant's claim, the
court shall resolve the disputed issue of fact or law in
favor of the [plaintiff] employee, former employee, or
applicant, provided that an Inspector General investigation
under subsection (b) has resulted in substantial confirmation
of that element, or those elements, of the [plaintiff's]
employee's, former employee's, or applicant's claim.
``(B) In any case in which an Executive agency asserts the
privilege commonly referred to as the `state secrets
privilege', whether or not an Inspector General has conducted
an investigation under subsection (b), the head of that
agency shall, at the same time it asserts the privilege,
issue a report to authorized Members of Congress, accompanied
by a classified annex if necessary, describing the reasons
for the assertion, explaining why the court hearing the
matter does not have the ability to maintain the protection
of classified information related to the assertion, detailing
the steps the agency has taken to arrive at a mutually
agreeable settlement with the employee, former employee, or
applicant for employment, setting forth the date on which the
classified information at issue will be declassified, and
providing all relevant information about the underlying
substantive matter.
``(d) Applicability to Non-Covered Agencies.--An employee,
former employee, or applicant for employment in an Executive
agency (or element or unit thereof) that is not a covered
agency shall, for purposes of any disclosure of covered
information (as described in subsection (a)(2)) which
consists in whole or in part of classified or sensitive
information, be entitled to the same protections, rights, and
remedies under this section as if that Executive agency (or
element or unit thereof) were a covered agency.
``(e) Construction.--Nothing in this section may be
construed--
``(1) to authorize the discharge of, demotion of, or
discrimination against an [employee] employee, former
employee, or applicant for employment for a disclosure other
than a disclosure protected by subsection (a) or (d) of this
section or to modify or derogate from a right or remedy
otherwise available to an employee, former employee, or
applicant for employment; or
``(2) to preempt, modify, limit, or derogate any rights or
remedies available to an employee, former employee, or
applicant for employment under any other provision of law,
rule, or regulation (including the Lloyd-La Follette Act).
No court or administrative agency may require the exhaustion
of any right or remedy under this section as a condition for
pursuing any other right or remedy otherwise available to an
employee, former employee, or applicant under any other
provision of law, rule, or regulation (as referred to in
paragraph (2)).
``(f) Definitions.--For purposes of this section--
``(1) the term `covered information', as used with respect
to an employee, former employee, or applicant for employment,
means any information (including classified or sensitive
information) which the employee, former employee, or
applicant reasonably believes evidences--
``(A) any violation of any law, rule, or regulation; or
``(B) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety;
``(2) the term `covered agency' means--
``(A) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National
Security Agency, and the National Reconnaissance Office; and
``(B) any other Executive agency, or element or unit
thereof, determined by the President under section
2302(a)(2)(C)(ii)(II) to have as its principal function the
conduct of foreign intelligence or counterintelligence
activities;
[[Page H2530]]
``(3) the term `authorized Member of Congress' means a
member of the House Permanent Select Committee on
Intelligence, the Senate Select Committee on Intelligence,
the House Committee on Oversight and Government Reform, the
Senate Committee on Homeland Security and Governmental
Affairs, and the committees of the House of Representatives
or the Senate that have oversight over the program about
which the covered information is disclosed;
``(4) the term `authorized official of an Executive agency'
shall have such meaning as the Office of Personnel Management
shall by regulation prescribe, except that such term shall,
with respect to any employee, former employee, or applicant
for employment in an agency, include--
``(A) the immediate supervisor of the employee or former
employee and each successive supervisor (immediately above
such immediate supervisor) within the employee's or former
employee's chain of authority (as determined under such
regulations); and
``(B) the head, general counsel, and ombudsman of such
agency; and
``(5) the term `authorized official of the Department of
Justice' means any employee of the Department of Justice, the
duties of whose position include the investigation,
enforcement, or prosecution of any law, rule, or
regulation.''.
(b) Clerical Amendment.--The table of sections for chapter
23 of title 5, United States Code, is amended by inserting
after the item relating to section 2303 the following:
``2303a. National security whistleblower rights.''.
SEC. 11. ENHANCEMENT OF CONTRACTOR EMPLOYEE WHISTLEBLOWER
PROTECTIONS.
(a) Civilian Agency Contracts.--Section 315(c) of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 265(c)) is amended--
(1) in paragraph (1), by striking ``If the head'' and all
that follows through ``actions:'' and inserting the
following: ``Not later than 180 days after submission of a
complaint under subsection (b), the head of the executive
agency concerned shall determine whether the contractor
concerned has subjected the complainant to a reprisal
prohibited by subsection (a) and shall either issue an order
denying relief or shall take one or more of the following
actions:''; and
(2) by redesignating paragraph (3) as paragraph (4) and
adding after paragraph (2) the following new paragraph (3):
``(3) If the head of an executive agency has not issued an
order within 180 days after the submission of a complaint
under subsection (b) and there is no showing that such delay
is due to the bad faith of the complainant, the complainant
shall be deemed to have exhausted his administrative remedies
with respect to the complaint, and the complainant may bring
an action at law or equity for de novo review to seek
compensatory damages and other relief available under this
section in the appropriate district court of the United
States, which shall have jurisdiction over such an action
without regard to the amount in [controversy.] controversy,
and which action shall, at the request of either party to
such action, be tried by the court with a jury.''.
(b) Armed Services Contracts.--Section 2409(c) of title 10,
United States Code, is amended--
(1) in paragraph (1), by striking ``If the head'' and all
that follows through ``actions:'' and inserting the
following: ``Not later than 180 days after submission of a
complaint under subsection (b), the head of the agency
concerned shall determine whether the contractor concerned
has subjected the complainant to a reprisal prohibited by
subsection (a) and shall either issue an order denying relief
or shall take one or more of the following actions:''; and
(2) by redesignating paragraph (3) as paragraph (4) and
adding after paragraph (2) the following new paragraph (3):
``(3) If the head of an agency has not issued an order
within 180 days after the submission of a complaint under
subsection (b) and there is no showing that such delay is due
to the bad faith of the complainant, the complainant shall be
deemed to have exhausted his administrative remedies with
respect to the complaint, and the complainant may bring an
action at law or equity for de novo review to seek
compensatory damages and other relief available under this
section in the appropriate district court of the United
States, which shall have jurisdiction over such an action
without regard to the amount in [controversy.] controversy,
and which action shall, at the request of either party to
such action, be tried by the court with a jury.''.
SEC. 12. PROHIBITED PERSONNEL PRACTICES AFFECTING THE
TRANSPORTATION SECURITY ADMINISTRATION.
(a) In General.--Chapter 23 of title 5, United States Code,
is amended--
(1) by redesignating sections 2304 and 2305 as sections
2305 and 2306, respectively; and
(2) by inserting after section 2303a (as inserted by
section 10) the following:
``Sec. 2304. Prohibited personnel practices affecting the
Transportation Security Administration
``(a) In General.--Notwithstanding any other provision of
law, any individual holding or applying for a position within
the Transportation Security Administration shall be covered
by--
``(1) the provisions of section 2302(b)(1), (8), and (9);
``(2) any provision of law implementing section 2302(b)(1),
(8), or (9) by providing any right or remedy available to an
employee or applicant for employment in the civil service;
and
``(3) any rule or regulation prescribed under any provision
of law referred to in paragraph (1) or (2).
``(b) Rule of Construction.--Nothing in this section shall
be construed to affect any rights, apart from those described
in subsection (a), to which an individual described in
subsection (a) might otherwise be entitled under law.
``(c) Effective Date.--This section shall take effect as of
the date of the enactment of this section.''.
(b) Clerical Amendment.--The table of sections for chapter
23 of title 5, United States Code, is amended by striking the
items relating to sections 2304 and 2305, respectively, and
by inserting the following:
``2304. Prohibited personnel practices affecting the Transportation
Security Administration.
``2305. Responsibility of the Government Accountability Office.
``2306. Coordination with certain other provisions of law.''.
SEC. 13. CLARIFICATION OF WHISTLEBLOWER RIGHTS RELATING TO
SCIENTIFIC AND OTHER RESEARCH.
Section 2302 of title 5, United States Code, is amended by
adding at the end the following:
``(f) As used in section 2302(b)(8), the term `abuse of
authority' includes--
``(1) any action that compromises the validity or accuracy
of federally funded research or analysis; and
``(2) the dissemination of false or misleading scientific,
medical, or technical information.''.
SEC. 14. EFFECTIVE DATE.
This Act shall take effect 30 days after the date of the
enactment of this Act, except as provided in the amendment
made by section 12(a)(2).
The Acting CHAIRMAN. No further amendment is in order except those
printed in House Report 110-48. Each further amendment may be offered
only in the order printed in the report, by a Member designated in the
report, shall be considered read, shall be debatable for the time
specified in the report, equally divided and controlled by the
proponent and an opponent, shall not be subject to amendment, and shall
not be subject to a demand for division of the question.
Amendment No. 1 Offered by Mr. Stupak
The Acting CHAIRMAN. It is now in order to consider amendment No. 1
printed in House Report 110-48.
Mr. STUPAK. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 1 offered by Mr. Stupak:
Page 28, line 19, strike ``and''.
Page 28, line 21, strike ``technical.'.'' and insert
``technical; and''.
Page 28, after line 21, add the following:
``(3) any action that restricts or prevents an employee or
any person performing federally funded research or analysis
from publishing in peer-reviewed journals or other scientific
publications or making oral presentations at professional
society meetings or other meetings of their peers.''.
The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman
from Michigan (Mr. Stupak) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Michigan.
Mr. STUPAK. Mr. Chairman, thank you for allowing me an opportunity to
address my amendment, and I thank the Rules Committee for making my
amendment in order. I want to recognize Mr. Waxman, Mr. Braley, Mr.
Davis, and others of the Government Reform Committee for advancing a
good bill, and I want to thank Mr. Markey for his help with this
amendment and for his previous work in protecting the right of
government scientists to publish their findings.
One of the most important sections of H.R. 985 deals with protecting
the integrity of the scientific process by shielding whistleblowers who
report tampering with government scientific investigations. My
amendment would enhance whistleblower protection by including in the
list of reportable actions any attempt to suppress the right of
government scientists to publish or announce their findings in peer
reviewed journals or public meetings with their fellow scientists.
In science, one of the strongest signs of credibility in a study is
that the scientists are given a right to publish their rights freely,
whatever those results may be. Completed studies are
[[Page H2531]]
submitted to peer-reviewed journals for consideration, allowing the
scientific community at large to review, challenge and incorporate new
findings.
The peer review process is a critical step in the development of
scientific knowledge, and the transparency inherent in the process is
one of our strongest safeguards against corrupted or misleading
scientific claims.
Scientific studies funded by the taxpayers should be held to this
same high standard. Political pressure on scientists to suppress or
hide the results of their research is a direct attack on the public
interest, and employees who report suppression of their scholarly
publications should be given the same protection as those who report
other kinds of corruption or abuse of authority.
My amendment would protect science in the public sector and has been
endorsed by the Union of Concerned Scientists, a leading nonprofit
organization dedicated to issues of scientific integrity.
Congress has already had some experience with this issue. In November
2004, the Senate Finance Committee heard testimony from Dr. David
Graham, the whistleblower in the Vioxx case. Dr. Graham described how
senior managers within the Office of Drug Safety of the FDA attempted
to block publication of his study on the dangers of Vioxx, even going
so far as to call the editors of The Lancet, a prestigious medical
journal, to attack Dr. Graham's work.
Dr. Graham's case is not an isolated incident. In a recent survey by
the Union of Concerned Scientists, 150 of 279 government scientists
reported some sort of political interference with their work. When
asked whether they believed they were free to publish results that
might go against the political positions of their agency, a majority of
those scientists who answered the question felt they were not free to
publish.
We all know how important good science is in helping us make good
public policy. As chairman of the Subcommittee on Oversight and
Investigations, I am especially aware of the critical role
whistleblowers have in rooting out abuses of power and aiding Congress
in its oversight responsibilities.
My amendment helps to make the important scientific integrity section
of the base bill more comprehensive and more clear. My amendment will
protect the public's right to know the results of publicly funded
research, and will help make a good bill even better.
Mr. Chairman, I reserve the balance of my time.
Mr. TOM DAVIS of Virginia. Mr. Chairman, I rise to claim the time in
opposition to the amendment.
The Acting CHAIRMAN. The gentleman from Virginia is recognized for 5
minutes.
Mr. TOM DAVIS of Virginia. Mr. Chairman, this amendment would amend
the section of the bill dealing with the so-called ``politicization of
science'' to say that Federal researchers and scientists are permitted
to publicize the results of their federally funded research without any
input from the agency paying their salaries and employing them.
First of all, I think it is inappropriate to shoehorn the debate
about public policy influencing science into a bill about protecting
whistleblowers. That is why I intend to support Mr. Sali's upcoming
amendment to strike entirely the section which gives rise to this
amendment.
Second, this amendment would make worse the provision in the
underlying bill which would turn the natural tension between science
and public policy into a personnel issue to be litigated in the courts.
The whistleblower laws protecting Federal employees are intended to
protect individuals retaliated against for exposing waste, fraud, or
abuse in government. This amendment has nothing to do with waste,
fraud, or abuse, it actually has to do with one person's opinion.
Instead, this amendment would give an individual Federal researcher
who conducts research using taxpayer dollars the full discretion as to
how and where to publicize his or her research, prohibiting the agency
who financed the research and for whom the researcher works from even
getting involved in that process.
If a Federal researcher conducts a study using Federal money and
decides he or she wants to present the research at a meeting in, say,
Cuba, Iran, the Federal Government can wind up in court if it attempts
to prevent the researcher from presenting the findings in that country.
Or if a Federal researcher conducts a study using Federal money on a
classified national security matter involving, let's say, satellite
technology, the Federal Government would be legally barred from having
any say in how and to whom that information gets disseminated.
It is an overreach. This amendment protects one individual's right to
determine how best to use taxpayer dollars instead of the collective
judgment of elected and appointed policymakers. And to add insult to
injury, the underlying bill would require taxpayers to pay the
attorneys' fees of the individual should the researcher sue the
government for trying to get involved.
To make matters worse, there is nothing in this amendment that would
bar the Federal researcher from touting the fact that his or her work
was ``Federal research,'' giving it the pretense of being research
endorsed by the American public. It is a slippery slope to scientific
chaos where the taxpayer foots the bill for conflicting, misleading,
and possibly even poorly done work. There are no protections for the
public or taxpayers for this amendment.
We have held a number of hearings in the Oversight and Government
Reform Committee under the leadership of Chairman Waxman to investigate
the possibility of ``politicization'' of science, and I understand the
problem this amendment is attempting to address. I don't think,
however, this is the way to do it. This is possibly a deal killer in
terms of how this bill comes together in getting support from this side
of the aisle.
This amendment is bad public policy, and it is bad for national
security. I urge my colleagues to oppose this amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. STUPAK. Mr. Chairman, I will be brief.
I sat for 12 years on the Energy and Commerce Committee, Oversight
and Investigations, and I cannot tell you how many times we have dealt
with scientists who have come forward under a whistleblower status, or
will call us up in cases like the Vioxx that I mentioned.
I have an article I will include for the Record where a scientist
said, ``FDA Called Journal to Block Vioxx Article.'' Thousands of
people have died because a drug was put forth on the market because the
scientist within the FDA was not allowed to publish the results of his
study and was not allowed to speak at advisory panels.
We also see that in a drug called Ketek. It is a drug we continue to
do investigation on, and we will have further hearings next week on it,
how fraudulent studies were put forth before the FDA. The scientists
knew it, and the FDA suppressed the evidence and allowed the drug to be
approved, to the detriment and the death of many Americans.
And there is the drug Accutane which has many mysterious questions
surrounding it, and people have not been allowed to testify at advisory
panels which must approve a drug before it is put forth for public use.
This is a safety issue, and 150 of 279 government scientists reported
political interference with their work.
My amendment protects the public right to know the results of
taxpayer-funded research. What is wrong with that?
This amendment is a good amendment. It will make the bill better. I
ask that my amendment be approved.
[From USA Today]
Scientist Says FDA Called Journal To Block Vioxx Article
(By Rita Rubin)
Just days before a medical journal was to publish a Food
and Drug Administration-sponsored study that raised concerns
about the safety of the arthritis drug Vioxx, an FDA official
took the unusual step of calling the editor to raise
questions about the findings' scientific integrity, suggests
e-mail obtained by USA TODAY.
Lead author David Graham says the call was part of an
effort to block publication of his research, an analysis of a
database of 1.4 million Kaiser Permanente members showing
that those who took Vioxx were more likely to suffer a heart
attack or sudden cardiac death than those who took Celebrex,
[[Page H2532]]
Vioxx's rival. Graham had reported his study in August at an
epidemiology meeting in France, but publication in a medical
journal would have exposed it to a wider audience.
Graham, associate director for science and medicine at the
FDA's Office of Drug Safety, says The Lancet, a medical
journal published in London, had planned to post the study on
its Web site Nov. 17, a day in advance of his appearance
before the Senate Finance Committee to testify about the
FDA's handling of Vioxx.
Merck had pulled the drug from the market Sept. 30 because
of safety concerns. Publication of the study could have
embarrassed the FDA, which was being criticized for not
warning patients sooner of Vioxx's cardiovascular risks.
Steven Galson, acting director of the FDA's Center for Drug
Evaluation and Research, said Sunday that Graham's charges
are unfounded. ``We didn't make any efforts to block
publication in The Lancet,'' he said. ``What we did is let
The Lancet know that the paper was submitted in violation of
the agency's clearance process.'' Graham had sought to
publish his study before getting the FDA's OK, Galson said.
And in a written statement, FDA Acting Commissioner Lester
Crawford said that Galson contacted Lancet editor Richard
Horton ``out of respect for the scientific review process.''
Galson said he would like to see the paper published some
day but didn't see the value of timing its release to the
Senate hearing, ``not exactly a scientific imperative.''
Graham says he pulled his paper at the last minute because
he feared for his job. Following is a chronology of the
events surrounding the paper's withdrawal:
Nov. 12. Galson called Horton to tell him that the FDA had
not cleared Graham's paper for publication. He then e-mailed
Horton a link to a document describing the FDA's internal
review process for journal articles. ``As you will see, there
are some ambiguities here,'' Galson said in his e-mail.
In a later e-mail to Horton that day, Galson brought up
points from a nine-page review of Graham's study by Ann
Trontell, deputy director of the FDA's drug safety office.
Galson and Trontell noted discrepancies between the article
submitted to The Lancet and an abstract of the study that had
been submitted in May for presentation at a second scientific
meeting, an American College of Rheumatology conference.
Trontell's review, which Graham had forwarded to Horton,
refers to ``potential charges of data manipulation.''
Graham says he had already explained the discrepancies to
his superiors at the FDA. After the abstract was submitted to
the rheumatology group, Graham says, he discovered two
problems: A computer program had misclassified the amount of
Vioxx some patients had taken; and one of his co-authors
noticed that an analysis Graham had done was incorrect.
Graham says the rheumatology group told him that it was too
late to correct the printed abstract, but that he could
present the corrected analysis at its annual meeting in
October, as he had at the epidemiology meeting in August
Nov. 14. In an e-mail to Galson, Horton wrote, ``You will
not be surprised if I say that I was a little taken aback to
get your call on Friday (Nov. 12). It is very unusual indeed
for a member of the employing institution of an author to
contact us in the middle of the review and publication
process of a manuscript.''
Horton wrote that Galson's call could be perceived as an
improper attempt to interfere with The Lancet's review
process. Raising the possibility that a scientist manipulated
data ``is an extremely serious allegation,'' Horton wrote.
``One could read such an allegation as an attempt to
introduce doubt into our minds about the honesty of the
authors--doubt that might be sufficient to delay or stop
publication of research that was clearly of serious public
interest''
Nov. 18. Graham told a Senate panel that the FDA is
``virtually defenseless'' against another ``terrible tragedy
and a profound regulatory failure'' like Vioxx.
Mr. Chairman, I reserve the balance of my time.
Mr. TOM DAVIS of Virginia. Mr. Chairman, I don't think there is a
Member of this House that doesn't sympathize with what the gentleman
from Michigan is trying to do.
The difficulty is the way this amendment is drafted. It is a huge
overreach. It allows anybody who is doing research under the auspices
of the Federal Government to then publish it without any kind of
overview from their superiors, who sometimes have competing reports and
deliberations as they reach a public policy decision.
This is bad law. It allows attorneys' fees in the case where somebody
is denied that opportunity.
This kind of overreach amendment is not about whistleblowing at all;
it is a politicization of science from the other perspective. I urge
Members to defeat this amendment.
Mr. Chairman, I yield back the balance of my time.
Mr. STUPAK. Mr. Chairman, I yield the balance of my time to the
gentleman from Iowa (Mr. Braley).
Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of this
amendment, and I thank the gentleman from Michigan for introducing this
amendment which would enhance a provision of underlying legislation
that protects scientific whistleblowers.
The underlying provision clarifies that whistleblowers disclosing
political or ideological interference with Federal science are
protected from retaliation. This amendment furthers that goal by
affirming that Federal scientists and grantees should also be able to
report censorship of scientific debate without fearing reprisal.
I support passage of this amendment. I urge Members to vote ``yes.''
The Acting CHAIRMAN. All time for debate on the amendment has
expired.
The question is on the amendment offered by the gentleman from
Michigan (Mr. Stupak).
The question was taken; and the Acting Chairman announced that the
ayes appeared to have it.
Mr. TOM DAVIS of Virginia. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Michigan
will be postponed.
Amendment No. 2 Offered by Mr. Platts
The Acting CHAIRMAN. It is now in order to consider amendment No. 2
printed in House Report 110-48.
Mr. PLATTS. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 2 offered by Mr. Platts:
Strike the heading for section 3 and insert the following
(and amend the table of contents accordingly):
SEC. 3. DEFINITIONAL AMENDMENTS.
In section 3, insert ``(a) Disclosure.--'' before
``Section'' and add at the end the following:
(b) Clear and Convincing Evidence.--Sections
1214(b)(4)(B)(ii) and 1221(e)(2) of title 5, United States
Code, are amended by adding at the end the following: ``For
purposes of the preceding sentence, `clear and convincing
evidence' means evidence indicating that the matter to be
proved is highly probable or reasonably certain.''.
The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman
from Pennsylvania (Mr. Platts) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Pennsylvania.
Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this amendment would require the Merit Systems
Protection Board to rely on a consistent standard for clear and
convincing evidence, which is the burden of proof that must be met to
sustain an agency's affirmative defense that it would have taken the
same personnel action in question independent of an employee's
protected contact.
Under the amendment, clear and convincing evidence will be defined as
``evidence indicating that the matter to be proved is highly probable
or reasonably certain.'' This standard is consistent with United States
Supreme Court precedent and administrative decisions for remedial
employment statutes.
By way of background, when Congress passed the Whistleblower
Protection Act of 1989, it intended to toughen the legal burden of
proof for a Federal agency's affirmative defense once a whistleblower
establishes a prima facie case of retaliation from ``preponderance of
the evidence'' to ``clear and convincing evidence.'' However, just the
opposite has occurred. The clear and convincing evidence standard is
now the primary basis cited to rule against whistleblowers in decisions
on merits.
The reason behind this is that the Merit Systems Protection Board has
created a unique test for clear and convincing evidence which is
inconsistent with long-established judicial and administrative norms.
In assessing the standard, the board considers three factors:
First, the merits of an agency's stated independent justification for
acting against a whistleblower; second, whether there was a motive to
retaliate; and third, whether the action reflects discriminatory
treatment compared to that afforded employees who have not engaged in
protective conduct.
[[Page H2533]]
The three-part test leaves the board with broad discretion in any
given case with respect to how many criteria an agency must demonstrate
and what level of proof must be demonstrated for each factor.
Adoption of this amendment is necessary in order to restore
congressional intent in passing the Whistleblower Protection Act.
{time} 1600
Through the WPA and this legislation we are now considering, Congress
has defined the terms for two of the three tests an employee must pass
to obtain relief: ``reasonable belief'' and ``contributing factor.''
For the administrative process to function as intended, Congress must
also define ``clear and convincing evidence.''
Accordingly, I urge a ``yes'' vote on the amendment. I appreciate
this amendment being made in order by the Rules Committee.
Mr. Chairman, I reserve the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of this amendment
offered by the gentleman from Pennsylvania and commend him for his
work.
Mr. TOM DAVIS of Virginia. Mr. Chairman, I rise to claim the time in
opposition.
The Acting CHAIRMAN. The gentleman from Virginia is recognized for 5
minutes.
Mr. TOM DAVIS of Virginia. Mr. Chairman, I yield myself such time as
I may consume.
I oppose this amendment. This amendment would raise the threshold by
which agencies must prove they would have taken disciplinary action
against an employee notwithstanding the employee's whistleblower claim.
Current law requires agencies to prove this by clear and convincing
evidence. This amendment raises the threshold and requires agencies to
prove that such action was highly probable or reasonably certain.
There may be a real issue here which must be addressed, but after
working on this bill for years now yesterday was the first time that
this issue was brought to our attention.
On its face, I am concerned this amendment would raise an already
high threshold imposed upon agencies trying to prove they are placing
an employee on administrative leave because, for example, the employee
sexually harassed another employee and not because the employee is a
whistleblower. The current clear and convincing evidence standard seems
a sufficient burden of proof to impose upon agencies.
I am also concerned we may be establishing a dangerous precedent by
further defining in one isolated statute what the term ``clear and
convincing evidence'' means. Does the U.S. Code typically define
standards of proof such as ``clear and convincing'' and ``beyond a
reasonable doubt'' or are these terms of art defined in case law? And
does this new definition of ``highly probable'' or ``reasonably
certain'' actually solve the problem or does it make it even more
confusing for courts and litigants?
Mr. Chairman, there may be a valid issue here worth investigating. It
is entirely possible that the Office of Special Counsel, the Merit
Systems Protection Board and the courts are getting this wrong, but we
should review this proposed change and vet it through the committee
process before amending the Whistleblower Protection Act.
The good news is we have an opportunity to address these questions.
The authorizations for both the Office of Special Counsel and the Merit
Systems Protection Board expire this year, and the committee can and
should carefully review the issue as we consider these
reauthorizations.
I think my concern on this, if there is a pending sexual harassment
claim against an employee, and they all of the sudden turn out and
become a whistleblower, that then in the sexual harassment claim we
have a higher standard, and for the litigant, the person that has been
harassed in that case, they have a higher burden of proof than they
would notwithstanding the whistleblower claim. I do not think that is
fair to the person who is being harassed in this case, and I do not see
a need for it.
So I urge my colleagues to oppose this amendment today and allow the
committee in regular order to consider carefully and foil this problem
identified by my good friend and colleague Mr. Platts.
Mr. Chairman, I reserve the balance of my time.
Mr. PLATTS. Mr. Chairman, I appreciate the gentleman's concerns
raised and certainly will keep them in mind as we move forward with
this process today and in the weeks and months to come.
I yield 1\1/2\ minutes to the gentleman from Iowa (Mr. Braley).
Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of this amendment
offered by the gentleman from Pennsylvania and commend him for his
work. This amendment will clarify the standard used to evaluate an
employee's defense when a whistleblower claims that an employer acted
in illegal retaliation.
When a whistleblower claims that an agency engaged in a retaliatory
action, it is an affirmative defense for the agency if it can prove
that it would have taken the same action even if the employee had not
blown the whistle. This is, in fact, the same type of analysis that
takes place in sex discrimination and sexual harassment claims, and yet
nothing in this amendment would impose a different burden of proof in
those cases because they are statutory-based claims and are not
affected by the amendment.
Congress set the agency's burden of proof for this defense as ``clear
and convincing evidence'' in the Whistleblower Protection Act. The
Merit Systems Protection Board has ignored the intent of Congress and
implemented its own test for evaluating whether or not an agency has
shown clear and convincing evidence that it would have taken the same
action anyway.
This has made it almost impossible for employees to successfully
challenge retaliatory personnel actions.
This amendment defines clear and convincing evidence as evidence
indicating that the matter to be proved is highly probable or
reasonably certain.
This is a commonsense fix that clarifies Congress' intent.
I support this amendment which will further strengthen protection for
whistleblowers and urge all Members to vote ``yes'' in support of the
amendment.
Mr. TOM DAVIS of Virginia. Mr. Chairman, I just urge my colleagues to
oppose the amendment, and I yield back the balance of my time.
Mr. PLATTS. Mr. Chairman, again, I appreciate the gentleman from
Iowa's support and words in support of this amendment and urge a
``yes'' vote. I yield back the balance of my time.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from Pennsylvania (Mr. Platts).
The question was taken; and the Acting Chairman announced that the
noes appeared to have it.
Mr. PLATTS. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Pennsylvania
will be postponed.
Amendment No. 3 Offered by Mr. Platts
The Acting CHAIRMAN. It is now in order to consider amendment No. 3
printed in House Report 110-48.
Mr. PLATTS. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 3 offered by Mr. Platts:
In section 2, in the matter to be inserted by paragraphs
(1)(A) and (2)(A) thereof, insert ``forum,'' after
``context,''.
In section 2, insert ``(a) In General.--'' before
``Section'' and add at the end the following:
(b) Prohibited Personnel Practices Under Section
2302(b)(9).--Title 5, United States Code, is amended in
subsections (a)(3), (b)(4)(A), and (b)(4)(B)(i) of section
1214 and in subsections (a) and (e)(1) of section 1221 by
inserting ``or 2302(b)(9)(B)-(D)'' after ``section
2302(b)(8)'' each place it appears.
In section 1221(k)(1) of title 5, United States Code (as
added by section 9(a)), insert ``or 2302(b)(9)(B)-(D)'' after
``section 2302(b)(8)''.
In section 7703(b)(3) of title 5, United States Code (as
added by section 9(b)(2)), insert ``or 2302(b)(9)(B)-(D)''
after ``section 2302(b)(8)''.
In the matter to be inserted by section 9(d)(2) in section
7703(c) of title 5, United States Code, insert ``or
2302(b)(9)(B)-(D)'' after ``section 2302(b)(8)''.
[[Page H2534]]
In section 2303a(a)(2)(A) of title 5, United States Code
(as amended by section 10(a)), insert ``forum,'' after
``context,''.
The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman
from Pennsylvania (Mr. Platts) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Pennsylvania.
Mr. PLATTS. Mr. Chairman, I yield myself as much time as I may
consume.
This amendment is intended to address situations in which an employee
faces retaliation for being associated with whistleblowers through his
or her testimony in a legal proceeding, and to encourage cooperation
with Inspector General and Office of Special Counsel investigations, as
well as compliance with the law.
Oddly, under current law, whistleblowers who make their disclosures
of waste, fraud or abuse in the context of another employee's legal
appeal, a grievance hearing, an Inspector General or Office of Special
Counsel investigation are not given the same protections as other
whistleblowers, such as those who blow the whistle on national
television. This simply does not make sense.
My amendment would rectify this situation in three ways. First, the
amendment would clarify that a protected disclosure cannot be
disqualified because of the forum in which it is made, such as through
witness testimony in another employee's appeal.
Second, the amendment would establish more realistic burdens of
proof, the same as exist in most whistleblower cases, for those who
were retaliated against because they testified on behalf of an employee
exercising their legal rights, because they cooperated with an
Inspector General or Special Counsel investigation, or because they
refused to obey an order that would have required a violation of the
law.
And third, the amendment gives these whistleblowers access to the
same due process rights as other whistleblowers.
Testifying under oath, cooperating with an Inspector General or
Special Counsel investigation, and refusing orders to violate the law
are all important ways by which public servants can expose waste, fraud
and abuse in the government. Accordingly, I urge a ``yes'' vote on the
amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of the amendment.
The Acting CHAIRMAN. Without objection, the gentleman from Iowa is
recognized for 5 minutes.
There was no objection.
Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may
consume.
This amendment clarifies that Federal whistleblowers are protected
regardless of where they are or when they blow the whistle.
A whistleblower who makes a disclosure that is considered a
whistleblower disclosure under 5 U.S.C. 2302(b)(8) gets the benefit of
protections such as the right to challenge a retaliatory act by an
employer. If the same whistleblower makes the same disclosure but does
it while testifying as a plaintiff or as a witness in litigation, the
whistleblower does not get the same protections.
We should protect Federal employees who expose government wrongdoing,
no matter what the forum. This amendment appropriately extends
Whistleblower Protection Act coverage to employees who make disclosures
in litigation as described in 5 U.S.C. Section 2302(b)(9).
This amendment extends equal burdens of proof and individual rights
of action to whistleblowers who serve as witnesses in Inspector General
and Special Counsel investigations. This amendment also clarifies that
these protections apply to Federal employees who face retaliation for
refusing to violate the law.
I urge my colleagues to support this amendment, which closes these
senseless loopholes.
Mr. Chairman, I yield back the balance of my time.
Mr. PLATTS. Mr. Chairman, how much time do I have?
The Acting CHAIRMAN. The gentleman from Pennsylvania (Mr. Platts) has
3\1/2\ minutes remaining. The gentleman from Iowa (Mr. Braley) has
yielded back the balance of his time.
Mr. PLATTS. Mr. Chairman, I yield 2 minutes to the gentleman from
Virginia (Mr. Tom Davis), the ranking member of the Committee on
Oversight and Government Reform.
Mr. TOM DAVIS of Virginia. Mr. Chairman, I thank the gentleman from
Pennsylvania and, once again, thank him for his leadership on this
issue. I support this amendment.
This amendment will extend additional whistleblower protections
against reprisal to employees who cooperate with their agency Inspector
General or in some other official grievance or investigative process.
Unfortunately, courts have misread the intent of the Whistleblower
Protection Act and have arbitrarily reclassified certain whistleblowing
activity as an exercise of appeal right. These rights are covered under
a different section of title V of the U.S. Code.
By reclassifying these activities as exercises of appeal right, the
courts have deprived employees of whistleblowing protection for their
same disclosure showing significant misconduct if presented in a
grievance or litigation instead of, for example, in a television
interview.
It could occur when an employee faces reprisal as one associated with
a whistleblower when testifying in an IG investigation or Office of
Special Counsel investigation.
It strikes me these are precisely the forums Congress intended the
whistleblower to take. These are, in essence, whistleblowers who are
operating within the existing chain of command. They have used the
chain of command, not gone outside the system, but they are not
afforded the same protection as those who do.
These are the forums where we can actually make a difference to
policymakers. This amendment ends the inequity by clarifying that an
otherwise protected disclosure cannot be disqualified because of the
forum where it is communicated.
I support this amendment. I congratulate my friend for offering it.
Mr. PLATTS. Mr. Chairman, I would just like to again recognize the
ranking member, the past several terms as the chairman of the
Government Reform Committee. He and his staff have been instrumental in
moving this issue forward and working with my staff and members on the
other side as well, and want to recognize him and his staff for their
great work.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from Pennsylvania (Mr. Platts).
The amendment was agreed to.
Amendment No. 4 Offered by Mr. Sali
The Acting CHAIRMAN. It is now in order to consider amendment No. 4
printed in House Report 110-48.
Mr. SALI. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 4 offered by Mr. Sali:
Strike section 13 (and make all necessary technical and
conforming changes).
The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman
from Idaho (Mr. Sali) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Idaho.
{time} 1615
Mr. SALI. Mr. Chairman, my amendment would remove language from H.R.
985 that would prohibit dissent with respect to scientific research.
I filed my amendment because I believe it is inappropriate to attempt
to shoehorn the debate about public policy influencing science into
this legislation, thus turning it into a personnel issue to be
litigated in the courts.
As set forth by section 13 of the bill, the dissemination of ``false
or misleading technical information'' is deemed to be an ``abuse of
authority'' upon which a Federal authority can make a protected
disclosure.
The problem is that on scientific issues, the question of what is
false or misleading is often a difficult question on which reasonable
people can disagree, and on which sometimes scientific authorities have
a hard time making up their minds. Are eggs good for you or bad for
you? Is milk good for you or bad for you?
[[Page H2535]]
Section 13 of this bill has significant implications upon the
development of scientific research conducted by the government,
including research and development work at the Defense Department, as
well as federally funded research on health and related issues. By
including the science provisions in this bill, I am concerned that we
are opening the door for debates in science to become the basis of
litigation. Putting the threat of litigation on a healthy debate of
science is not good public policy.
Furthermore, this clause potentially makes the tension between ethics
and science the subject of litigation. For example, federally funded
scientific research on human cloning should be debated amongst
policymakers and agency officials without fear of retaliation by
scientists and researchers. If an agency or the administration
disagrees with the findings of a particular scientist, we should not be
opening up our judicial system for those disagreements to be litigated
as Federal employee personnel issues. That hardly seems like a
responsible policy.
I urge my colleagues to oppose turning science into a personnel issue
to be litigated in the courts.
Mr. Chairman, I reserve the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I rise in strong opposition to this
amendment.
The Acting CHAIRMAN. The gentleman is recognized for 5 minutes.
Mr. BRALEY of Iowa. For the past 6 years, there has been overwhelming
political interference with science by the Bush administration. We have
seen examples of government scientists barred from conducting or
presenting research because it conflicts with administration policies.
We have seen scientific findings manipulated or outright rejected when
they don't bolster favored policies. And we have seen government
agencies put out information about health that is entirely false, but
politically advantageous. In one EPA report on the environment, the
White House made so many edits to downplay the discussion of global
warming that scientists at the agency said the draft no longer
accurately represents scientific consensus on climate change.
The FDA delayed approval of plan B for over-the-counter use based on
political, not scientific, reasons, causing senior FDA officials and
scientific experts to resign in protest.
Numerous scientific and medical organizations have taken positions
against this abuse of science. It has been condemned in the editorial
pages of the most prominent scientific journals. The Journal of
Science, for instance, said that this interference invades areas once
immune to this kind of manipulation.
Mr. Chairman, 52 Nobel Laureates, 62 National Medal of Science
winners, 194 members of the National Academies of Science and thousands
of other American scientists have signed a statement speaking out
against political interference in science. To prevent and remedy these
kinds of problems, we have to know about them. That is why this
legislation makes clear that employees who want to disclose these kinds
of abuses are entitled to whistleblower protections. Our Federal
scientists should not be punished at work for coming forward to report
these abuses of science.
This legislation will have no effect at all on legitimate political
or policy decisions related to scientific issues. All it does is
prevent retaliation against employees who report abuses of science. The
amendment we are debating now would strike this critical provision.
I strongly oppose the amendment and urge all Members to vote ``nay.''
Mr. Chairman, I reserve the balance of my time.
Mr. SALI. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. Issa).
Mr. ISSA. Mr. Chairman, I rise in support of this amendment and for
the exact same reason that my colleague on the other side of the aisle
opposes it.
We have a predicament that we are dealing with in this very
committee, in the Committee on Oversight and Government Reform. We are
dealing with global warming. The $2 billion-plus that we spend every
year, and scientists like Jim Hansen and others who have been out there
saying what they want to freely, the way they want to, and they have
done this at a time in which there is an allegation of a problem. Quite
frankly, it is amazing that when I Google, I get tens of thousands of
hits on a scientist who is talking about why global warming is a
threat, why we have to do things quickly, and yet there is some theory
that we have stifled science.
By treating science separately in the whistleblower status, we are
doing a disservice to every scientist and treating them adversely,
separately and differently. This simply wants to return us to a
procedure that we had before, one that has worked. In fact, Jim Hansen,
who will be before our committee next week, and others have gone
through a vetting process and then proceeded to make freely the
speeches they wanted to make. There has not been a need for
whistleblower. In fact, scientists are free to express their opinions
now, and that is appropriate; they can do it under the existing
guidelines.
This amendment seeks to return us to what was a functioning system,
one in which we supported science, and scientists have been free to say
what they want to. There may be edits going up the process that the
gentleman on the other side of the aisle objects to, but there were
edits under the previous administration.
I urge support of the Sali amendment, recognizing that, in fact, this
would be a sword that could cut both ways and the future could be
adverse to the very scientists it seeks to assist.
Mr. BRALEY of Iowa. Mr. Chairman, this amendment, which strikes
section 13 of the underlying bill, is very simple; all it does is
expand the term ``abuse of authority'' under existing law to include
any action that compromises the validity or accuracy of federally
funded research or analysis. And it is the federally funded component
of that clause that makes this amendment bad for the American people.
American taxpayers should not have the risk of important scientific
research being impacted by political influence from any political
party. That is why it is important that this amendment be defeated.
There are those that say that politics and science will always
intersect. That is absolutely true. Science doesn't give us all the
answers. We have to make political and policy decisions about the right
path to follow.
For example, an administration might decide not to support a certain
type of research. We may not agree with that decision, but the
administration has a right to make it as long as it is honest about the
information and rationale behind it. What is not acceptable is when the
government actually manipulates science to advance its decisions.
Hiding data, releasing misinformation, gagging scientists, all to
justify a political course of action, is wrong. That is the type of
action that we want Federal employees to feel safe in reporting. And
that is why this bill makes crystal clear that disclosures related to
manipulation and distortion of science are protected disclosures. That
is why I again call upon my colleagues on both sides of the aisle to
join me in voting against this amendment.
With that, Mr. Chairman, I yield back the balance of my time.
Mr. SALI. Mr. Chairman, how much time is remaining?
The Acting CHAIRMAN. The gentleman from Idaho has 1 minute remaining.
Mr. SALI. Mr. Chairman, I would expect that the good gentleman that
is debating against this amendment has policies in his office that
allow him to control the message that comes out of his office, not to
hide anything, I'm sure, but so that he will have a uniform message.
That is important at times within government agencies.
What we do not want to do, Mr. Chairman, is, we do not want to
include a provision in this bill that will put scientific debate in the
middle of personnel issues for the Federal Government. We do not want
to put the results of scientific research, we don't want to take that
out of the grasp of debate by policymakers for fear of retaliation by
scientists and researchers who are doing work for the Federal
Government.
Mr. Chairman, this is good public policy to have this amendment, to
take this section out of the bill; and I would
[[Page H2536]]
urge my colleagues to support this amendment
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from Idaho (Mr. Sali).
The question was taken, and the Acting Chairman announced that the
noes appeared to have it.
Recorded Vote
Mr. SALI. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Idaho will
be postponed.
Amendment No. 5 Offered by Mr. Tierney
The Acting CHAIRMAN. It is now in order to consider amendment No. 5
printed in House Report 110-48.
Mr. TIERNEY. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 5 offered by Mr. Tierney
Page 13, strike line 19, and all that follows through page
24, line 7, and insert the following:
SEC. 10. NATIONAL SECURITY WHISTLEBLOWER RIGHTS.
(a) In General.--Chapter 23 of title 5, United States Code,
is amended by inserting after section 2303 the following:
``Sec. 2303a. National security whistleblower rights
``(a) Prohibition of Reprisals.--
``(1) In general.--In addition to any rights provided in
section 2303 of this title, title VII of Public Law 105-272,
or any other provision of law, an employee or former employee
in a covered agency may not be discharged, demoted, or
otherwise discriminated against (including by denying,
suspending, or revoking a security clearance, or by otherwise
restricting access to classified or sensitive information) as
a reprisal for making a disclosure described in paragraph
(2).
``(2) Disclosures described.--A disclosure described in
this paragraph is any disclosure of covered information which
is made--
``(A) by an employee or former employee in a covered agency
(without restriction as to time, place, form, motive,
context, or prior disclosure made to any person by an
employee or former employee, including a disclosure made in
the course of an employee's duties); and
``(B) to an authorized Member of Congress, an authorized
official of an Executive agency, or the Inspector General of
the covered agency in which such employee or former employee
is or was employed.
``(b) Investigation of Complaints.--An employee or former
employee in a covered agency who believes that such employee
or former employee has been subjected to a reprisal
prohibited by subsection (a) may submit a complaint to the
Inspector General and the head of the covered agency. The
Inspector General shall investigate the complaint and, unless
the Inspector General determines that the complaint is
frivolous, submit a report of the findings of the
investigation within 120 days to the employee or former
employee (as the case may be) and to the head of the covered
agency.
``(c) Remedy.--
``(1) Within 180 days of the filing of the complaint, the
head of the covered agency shall, taking into consideration
the report of the Inspector General under subsection (b) (if
any), determine whether the employee or former employee has
been subjected to a reprisal prohibited by subsection (a),
and shall either issue an order denying relief or shall
implement corrective action to return the employee or former
employee, as nearly as possible, to the position he would
have held had the reprisal not occurred, including voiding
any directive or order denying, suspending, or revoking a
security clearance or otherwise restricting access to
classified or sensitive information that constituted a
reprisal, as well as providing back pay and related benefits,
medical costs incurred, travel expenses, any other reasonable
and foreseeable consequential damages, and compensatory
damages (including attorney's fees, interest, reasonable
expert witness fees, and costs). If the head of the covered
agency issues an order denying relief, he shall issue a
report to the employee or former employee detailing the
reasons for the denial.
``(2)(A) If the head of the covered agency, in the process
of implementing corrective action under paragraph (1), voids
a directive or order denying, suspending, or revoking a
security clearance or otherwise restricting access to
classified or sensitive information that constituted a
reprisal, the head of the covered agency may re-initiate
procedures to issue a directive or order denying, suspending,
or revoking a security clearance or otherwise restricting
access to classified or sensitive information only if those
re-initiated procedures are based exclusively on national
security concerns and are unrelated to the actions
constituting the original reprisal.
``(B) In any case in which the head of a covered agency re-
initiates procedures under subparagraph (A), the head of the
covered agency shall issue an unclassified report to its
Inspector General and to authorized Members of Congress (with
a classified annex, if necessary), detailing the
circumstances of the agency's re-initiated procedures and
describing the manner in which those procedures are based
exclusively on national security concerns and are unrelated
to the actions constituting the original reprisal. The head
of the covered agency shall also provide periodic updates to
the Inspector General and authorized Members of Congress
detailing any significant actions taken as a result of those
procedures, and shall respond promptly to inquiries from
authorized Members of Congress regarding the status of those
procedures.
``(3) If the head of the covered agency has not made a
determination under paragraph (1) within 180 days of the
filing of the complaint (or he has issued an order denying
relief, in whole or in part, whether within that 180-day
period or thereafter, then, within 90 days after such order
is issued), the employee or former employee may bring an
action at law or equity for de novo review to seek any
corrective action described in paragraph (1) in the
appropriate United States district court (as defined by
section 1221(k)(2)), which shall have jurisdiction over such
action without regard to the amount in controversy. An appeal
from a final decision of a district court in an action under
this paragraph may, at the election of the appellant, be
taken to the Court of Appeals for the Federal Circuit (which
shall have jurisdiction of such appeal), in lieu of the
United States court of appeals for the circuit embracing the
district in which the action was brought.
``(4) An employee or former employee adversely affected or
aggrieved by an order issued under paragraph (1), or who
seeks review of any corrective action determined under
paragraph (1), may obtain judicial review of such order or
determination in the United States Court of Appeals for the
Federal Circuit or any United States court of appeals having
jurisdiction over appeals from any United States district
court which, under section 1221(k)(2), would be an
appropriate United States district court. No petition seeking
such review may be filed more than 60 days after issuance of
the order or the determination to implement corrective action
by the head of the agency. Review shall conform to chapter 7.
``(5)(A) If, in any action for damages or relief under
paragraph (3) or (4), an Executive agency moves to withhold
information from discovery based on a claim that disclosure
would be inimical to national security by asserting the
privilege commonly referred to as the `state secrets
privilege', and if the assertion of such privilege prevents
the employee or former employee from establishing an element
in support of the employee's or former employee's claim, the
court shall resolve the disputed issue of fact or law in
favor of the employee or former employee, provided that an
Inspector General investigation under subsection (b) has
resulted in substantial confirmation of that element, or
those elements, of the employee's or former employee's claim.
``(B) In any case in which an Executive agency asserts the
privilege commonly referred to as the `state secrets
privilege', whether or not an Inspector General has conducted
an investigation under subsection (b), the head of that
agency shall, at the same time it asserts the privilege,
issue a report to authorized Members of Congress, accompanied
by a classified annex if necessary, describing the reasons
for the assertion, explaining why the court hearing the
matter does not have the ability to maintain the protection
of classified information related to the assertion, detailing
the steps the agency has taken to arrive at a mutually
agreeable settlement with the employee or former employee,
setting forth the date on which the classified information at
issue will be declassified, and providing all relevant
information about the underlying substantive matter.
``(d) Applicability to Non-Covered Agencies.--An employee
or former employee in an Executive agency (or element or unit
thereof) that is not a covered agency shall, for purposes of
any disclosure of covered information (as described in
subsection (a)(2)) which consists in whole or in part of
classified or sensitive information, be entitled to the same
protections, rights, and remedies under this section as if
that Executive agency (or element or unit thereof) were a
covered agency.
``(e) Construction.--Nothing in this section may be
construed--
``(1) to authorize the discharge of, demotion of, or
discrimination against an employee or former employee for a
disclosure other than a disclosure protected by subsection
(a) or (d) of this section or to modify or derogate from a
right or remedy otherwise available to an employee or former
employee; or
``(2) to preempt, modify, limit, or derogate any rights or
remedies available to an employee or former employee under
any other provision of law, rule, or regulation (including
the Lloyd-La Follette Act).
No court or administrative agency may require the exhaustion
of any right or remedy under this section as a condition for
pursuing any other right or remedy otherwise available to an
employee or former employee under any other provision of law,
rule, or regulation (as referred to in paragraph (2)).
``(f) Definitions.--For purposes of this section--
[[Page H2537]]
``(1) the term `covered information', as used with respect
to an employee or former employee, means any information
(including classified or sensitive information) which the
employee or former employee reasonably believes evidences--
``(A) any violation of any law, rule, or regulation; or
``(B) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety;
``(2) the term `covered agency' means--
``(A) the Federal Bureau of Investigation, the Office of
the Director of National Intelligence, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Geospatial-Intelligence Agency, the National
Security Agency, and the National Reconnaissance Office; and
``(B) any other Executive agency, or element or unit
thereof, determined by the President under section
2302(a)(2)(C)(ii)(II) to have as its principal function the
conduct of foreign intelligence or counterintelligence
activities;
``(3) the term `authorized Member of Congress' means--
``(A) with respect to covered information about sources and
methods of the Central Intelligence Agency, the Director of
National Intelligence, and the National Intelligence Program
(as defined in section 3(6) of the National Security Act of
1947), a member of the House Permanent Select Committee on
Intelligence, the Senate Select Committee on Intelligence, or
any other committees of the House of Representatives or
Senate to which this type of information is customarily
provided;
``(B) with respect to special access programs specified in
section 119 of title 10, an appropriate member of the
Congressional defense committees (as defined in such
section); and
``(C) with respect to other covered information, a member
of the House Permanent Select Committee on Intelligence, the
Senate Select Committee on Intelligence, the House Committee
on Oversight and Government Reform, the Senate Committee on
Homeland Security and Governmental Affairs, or any other
committees of the House of Representatives or the Senate that
have oversight over the program which the covered information
concerns; and
``(4) the term `authorized official of an Executive agency'
shall have such meaning as the Office of Personnel Management
shall by regulation prescribe, except that such term shall,
with respect to any employee or former employee in an agency,
include the head, the general counsel, and the ombudsman of
such agency.''.
The Acting CHAIRMAN. Pursuant to House Resolution 239, the gentleman
from Massachusetts (Mr. Tierney) and a Member opposed each will control
5 minutes.
The Chair recognizes the gentleman from Massachusetts.
Mr. TIERNEY. Mr. Chairman, as we discussed already here,
whistleblowers play a key role in holding government accountable, and
this legislation takes the important and long-overdue step of providing
whistleblower protections for Federal workers who specialize in
national security issues.
This amendment was carefully crafted to clarify the process by which
national security whistleblower information, that is, information which
may evidence a violation of law, rule or regulation of gross
mismanagement, fraud, waste, or abuse is shared with executive branch
officials and Members of Congress. It specifically addresses
information possessed by whistleblowers involving intelligence sources
and methods. And in those instances that is information that is
customarily provided to the House and Senate Intelligence Committees.
It also makes clear that information of concern relating to the
Department of Defense Special Access Programs, or SAPS as they are
currently called, should be reported to the Armed Services Committee
and the Defense Appropriations Subcommittee.
Overall, this clarifying amendment strengthens the bill by ensuring
that current and former employees of the intelligence community, the
FBI, the military and other national security elements that possess
sensitive classified national security information receive adequate
protections against reprisals under the law. Further, it will better
ensure the protection of classified sensitive information at issue in
many of these cases. So I urge my colleagues to support what I believe
is a sensible amendment.
Mr. Chairman, I yield back the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I am not opposed, but I ask
unanimous consent to claim the time in opposition.
The Acting CHAIRMAN. Without objection, the gentleman from Iowa is
recognized for 5 minutes.
There was no objection.
Mr. BRALEY of Iowa. Mr. Chairman, I rise in support of the amendment
offered by the gentleman from Massachusetts (Mr. Tierney).
I commend Mr. Tierney for his work on this compromise. As a member of
both the Permanent Select Committee on Intelligence and the Committee
on Oversight and Government Reform, he has done a great job on
expressing the concerns of both committees in a way that will allow us
to move forward with this important legislation.
One particular change made by this amendment is the removal of
language in the underlying bill that allows a national security
whistleblower to always disclose information to a supervisor. This
amendment acknowledges that there are certain circumstances where it
may not be appropriate for a supervisor to receive a disclosure, such
as when an employee is disclosing classified information to which the
supervisor does not have access. This amendment also changes a
provision in H.R. 985 regarding national security whistleblowers, to
limit which Members of Congress can receive information from a national
security whistleblower about an especially sensitive subject.
It is important that Federal workers who specialize in national
security issues have the ability to disclose the information about
government wrongdoing to Congress. These workers need to know that they
have access to a safe harbor where information will be fully
investigated and appropriately safeguarded. However, because of the
sensitive nature of the information these whistleblowers may disclose,
it is also important to ensure that appropriate Members of Congress
receive these communications.
{time} 1630
This amendment addresses concerns that have been raised about
allowing national security whistleblowers to disclose sensitive
classified information to Congress by ensuring that information will go
to members of committees with expertise and procedures for handling
such information.
I support this compromise amendment, and I urge all Members to vote
``yes.'
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN. All time for debate on the amendment has
expired.
The question is on the amendment offered by the gentleman from
Massachusetts (Mr. Tierney).
The amendment was agreed to.
Amendment No. 2 offered by Mr. Platts
Mr. PLATTS. Mr. Chairman, I ask unanimous consent that the request
for a recorded vote on amendment No. 2 and the previous vote by voice
on that amendment be vacated, to the end that the Chair put the
question on adopting the amendment de novo.
The Acting CHAIRMAN. Is there objection to the request of the
gentleman from Pennsylvania?
There was no objection.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from Pennsylvania (Mr. Platts).
The amendment was agreed to.
Announcement by the Acting Chairman
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, proceedings
will now resume on those amendments on which further proceedings were
postponed, in the following order:
Amendment No. 1 by Mr. Stupak of Michigan.
Amendment No. 4 by Mr. Sali of Idaho.
The Chair will reduce to 5 minutes the time for any electronic vote
after the first vote in this series.
Amendment No. 1 Offered by Mr. Stupak
The Acting CHAIRMAN. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from Michigan
(Mr. Stupak) on which further proceedings were postponed and on which
the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 250,
noes 178, not voting 10, as follows:
[[Page H2538]]
[Roll No. 149]
AYES--250
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bartlett (MD)
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Bordallo
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Christensen
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Courtney
Cramer
Crowley
Cubin
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dent
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ehlers
Ellison
Ellsworth
Emanuel
Engel
Eshoo
Etheridge
Faleomavaega
Farr
Fattah
Ferguson
Filner
Fortenberry
Frank (MA)
Giffords
Gilchrest
Gillibrand
Gillmor
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (NC)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
LaHood
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Michaud
Millender-McDonald
Miller (NC)
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murphy, Tim
Murtha
Nadler
Napolitano
Neal (MA)
Norton
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reichert
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shays
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (NJ)
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tauscher
Taylor
Terry
Thompson (CA)
Thompson (MS)
Tiahrt
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Wynn
Yarmuth
NOES--178
Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono
Boozman
Brady (TX)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Crenshaw
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Emerson
English (PA)
Everett
Fallin
Feeney
Flake
Forbes
Fortuno
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gingrey
Gohmert
Goode
Goodlatte
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Hunter
Inglis (SC)
Issa
Jindal
Johnson (IL)
Johnson, Sam
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
Lamborn
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Musgrave
Myrick
Neugebauer
Nunes
Paul
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shimkus
Shuster
Simpson
Smith (NE)
Smith (TX)
Souder
Stearns
Sullivan
Tancredo
Thornberry
Tiberi
Turner
Upton
Walberg
Walsh (NY)
Wamp
Weldon (FL)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--10
Brown (SC)
Costa
Costello
Davis, Jo Ann
Granger
Jones (OH)
Meehan
Miller, George
Saxton
Tanner
{time} 1658
Messrs. PEARCE, CAMPBELL of California and DEAL of Georgia changed
their vote from ``aye'' to ``no.''
Mrs. LOWEY and Messrs. BARTLETT of Maryland, WALDEN of Oregon and
ISRAEL changed their vote from ``no'' to ``aye.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Amendment No. 4 Offered by Mr. Sali
The Acting CHAIRMAN. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from Idaho (Mr.
Sali) on which further proceedings were postponed and on which the noes
prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The Acting CHAIRMAN. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 159,
noes 271, not voting 8, as follows:
[Roll No. 150]
AYES--159
Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono
Boozman
Brady (TX)
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Chabot
Coble
Cole (OK)
Conaway
Crenshaw
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Emerson
English (PA)
Everett
Fallin
Feeney
Flake
Forbes
Fortuno
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gingrey
Gohmert
Goode
Goodlatte
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Hobson
Hunter
Inglis (SC)
Issa
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kline (MN)
Knollenberg
Kuhl (NY)
Lamborn
Latham
Lewis (KY)
Linder
Lucas
Lungren, Daniel E.
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Musgrave
Myrick
Neugebauer
Nunes
Paul
Pearce
Pence
Peterson (PA)
Pickering
Pitts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Rehberg
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shimkus
Shuster
Simpson
Smith (NE)
Smith (TX)
Souder
Stearns
Sullivan
Terry
Thornberry
Tiberi
Turner
Upton
Walberg
Wamp
Weldon (FL)
Weller
Westmoreland
Whitfield
Wilson (NM)
Wilson (SC)
Young (AK)
NOES--271
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bartlett (MD)
Barton (TX)
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Bordallo
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Brown-Waite, Ginny
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castle
Castor
Chandler
Christensen
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crowley
Cubin
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dent
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ehlers
Ellison
Ellsworth
Emanuel
Engel
Eshoo
Etheridge
Faleomavaega
Farr
Fattah
Ferguson
Filner
Fortenberry
Frank (MA)
Giffords
Gilchrest
Gillibrand
Gillmor
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Hall (NY)
Hare
Harman
Hastings (FL)
Herger
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hodes
Hoekstra
Holden
Holt
Honda
Hooley
Hoyer
Hulshof
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
[[Page H2539]]
Jefferson
Jindal
Johnson (GA)
Johnson (IL)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Kirk
Klein (FL)
Kucinich
LaHood
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
LaTourette
Lee
Levin
Lewis (CA)
Lewis (GA)
Lipinski
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mack
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McHugh
McIntyre
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Michaud
Millender-McDonald
Miller (NC)
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murphy, Tim
Murtha
Nadler
Napolitano
Neal (MA)
Norton
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Peterson (MN)
Petri
Platts
Pomeroy
Price (NC)
Rahall
Rangel
Regula
Reichert
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shays
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (NJ)
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tancredo
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tiahrt
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walsh (NY)
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wicker
Wilson (OH)
Wolf
Woolsey
Wu
Wynn
Yarmuth
Young (FL)
NOT VOTING--8
Brown (SC)
Davis, Jo Ann
Granger
Gutierrez
Meehan
Miller, George
Saxton
Tanner
{time} 1708
So the amendment was rejected.
The result of the vote was announced as above recorded.
The Acting CHAIRMAN. There being no further amendments, the Committee
rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Scott of Georgia) having assumed the chair, Mr. Ross, Acting Chairman
of the Committee of the Whole House on the state of the Union, reported
that that Committee, having had under consideration the bill (H.R. 985)
to amend title 5, United States Code, to clarify which disclosures of
information are protected from prohibited personnel practices; to
require a statement in nondisclosure policies, forms, and agreements to
the effect that such policies, forms, and agreements are consistent
with certain disclosure protections, and for other purposes, pursuant
to House Resolution 239, he reported the bill, as amended by that
resolution, back to the House with sundry further amendments adopted by
the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on any further amendment reported from
the Committee of the Whole?
Mr. PRICE of Georgia. Mr. Speaker, I demand a re-vote on the Stupak
amendment.
The SPEAKER pro tempore. Is a separate vote demanded on any other
amendment? If not, the Chair will put them en gros.
The amendments were agreed to.
The SPEAKER pro tempore. The Clerk will redesignate the amendment on
which a separate vote has been demanded.
The text of the amendment is as follows:
Amendment No. 1 offered by Mr. Stupak:
Page 28, line 19, strike ``and''.
Page 28, line 21, strike ``technical.'.'' and insert
``technical; and''.
Page 28, after line 21, add the following:
``(3) any action that restricts or prevents an employee or
any person performing federally funded research or analysis
from publishing in peer-reviewed journals or other scientific
publications or making oral presentations at professional
society meetings or other meetings of their peers.''.
The SPEAKER pro tempore. The question is on the amendment.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. PRICE of Georgia. Mr. Speaker, on that I demand the yeas and
nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas 252,
nays 173, not voting 8, as follows:
[Roll No. 151]
YEAS--252
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bartlett (MD)
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crowley
Cubin
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dent
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ehlers
Ellison
Ellsworth
Emanuel
Engel
Eshoo
Etheridge
Farr
Fattah
Ferguson
Filner
Fortenberry
Frank (MA)
Giffords
Gilchrest
Gillibrand
Gillmor
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson (IL)
Johnson, E. B.
Jones (NC)
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
LaHood
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Michaud
Millender-McDonald
Miller (NC)
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murphy, Tim
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reichert
Renzi
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shays
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (NJ)
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tauscher
Taylor
Terry
Thompson (CA)
Thompson (MS)
Tiahrt
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Wynn
Yarmuth
Young (AK)
NAYS--173
Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono
Boozman
Brady (TX)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Crenshaw
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Emerson
English (PA)
Everett
Fallin
Feeney
Flake
Forbes
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gingrey
Gohmert
Goode
Goodlatte
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Hunter
Inglis (SC)
Issa
Jindal
Johnson, Sam
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
Lamborn
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (MI)
Miller, Gary
Musgrave
Myrick
Neugebauer
Nunes
Paul
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shimkus
Shuster
Simpson
Smith (NE)
Smith (TX)
Souder
Stearns
Sullivan
Tancredo
Thornberry
Tiberi
Turner
Upton
Walberg
Walsh (NY)
Wamp
Weldon (FL)
Weller
Westmoreland
[[Page H2540]]
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (FL)
NOT VOTING--8
Brown (SC)
Davis, Jo Ann
Granger
Meehan
Miller (FL)
Miller, George
Saxton
Tanner
{time} 1727
So the amendment was agreed to.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
{time} 1730
Motion to Recommit Offered by Mr. Westmoreland
Mr. WESTMORELAND. Mr. Speaker, I offer a motion to recommit.
The SPEAKER pro tempore. Is the gentleman opposed to the bill?
Mr. WESTMORELAND. I am in its present form, Mr. Speaker.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Westmoreland moves to recommit the bill H.R. 985 to the
Committee on Oversight and Government Reform with
instructions that the Committee report the same back to the
House forthwith with the following amendments:
Page 28, line 13, before ``Section'' insert ``(a) In
General.--__''.
Page 28, line 19, strike ``and''.
Page 28, line 21, strike ``.'.'' and insert ``; and''.
Page 28, after line 21, insert the following:
``(4) any action that discriminates for or against any
employee or applicant for employment on the basis of
religion, as defined by section 13(b) of the Whistleblower
Protection Enhancement Act of 2007.''.
Page 28, after line 21 (following the matter inserted by
the previous amendment), add the following:
(b) Definition.--As used in section 2302(f)(3) of title 5,
United States Code (as amended by subsection (a)), the term
``on the basis of religion'' means--
(1) prohibiting personal religious expression by Federal
employees to the greatest extent possible, consistent with
requirements of law and interests in workplace efficiency;
(2) requiring religious participation or non-participation
as a condition of employment, or permitting religious
harassment;
(3) failing to accommodate employees' exercise of their
religion;
(4) failing to treat all employees with the same respect
and consideration, regardless of their religion (or lack
thereof);
(5) restricting personal religious expression by employees
in the Federal workplace except where the employee's interest
in the expression is outweighed by the government's interest
in the efficient provision of public services or where the
expression intrudes upon the legitimate rights of other
employees or creates the appearance, to a reasonable
observer, of an official endorsement of religion;
(6) regulating employees' personal religious expression on
the basis of its content or viewpoint, or suppressing
employees' private religious speech in the workplace while
leaving unregulated other private employee speech that has a
comparable effect on the efficiency of the workplace,
including ideological speech on politics and other topics;
(7) failing to exercise their authority in an evenhanded
and restrained manner, and with regard for the fact that
Americans are used to expressions of disagreement on
controversial subjects, including religious ones;
(8) failing to permit an employee to engage in private
religious expression in personal work areas not regularly
open to the public to the same extent that they may engage in
nonreligious private expression, subject to reasonable
content- and viewpoint-neutral standards and restrictions;
(9) failing to permit an employee to engage in religious
expression with fellow employees, to the same extent that
they may engage in comparable nonreligious private
expression, subject to reasonable and content-neutral
standards and restrictions;
(10) failing to permit an employee to engage in religious
expression directed at fellow employees, and may even attempt
to persuade fellow employees of the correctness of their
religious views, to the same extent as those employees may
engage in comparable speech not involving religion;
(11) inhibiting an employee from urging a colleague to
participate or not to participate in religious activities to
the same extent that, consistent with concerns of workplace
efficiency, they may urge their colleagues to engage in or
refrain from other personal endeavors, except that the
employee must refrain from such expression when a fellow
employee asks that it stop or otherwise demonstrates that it
is unwelcome;
(12) failing to prohibit expression that is part of a
larger pattern of verbal attacks on fellow employees (or a
specific employee) not sharing the faith of the speaker;
(13) preventing an employee from--
(A) wearing personal religious jewelry absent special
circumstances (such as safety concerns) that might require a
ban on all similar nonreligious jewelry; or
(B) displaying religious art and literature in their
personal work areas to the same extent that they may display
other art and literature, so long as the viewing public would
reasonably understand the religious expression to be that of
the employee acting in her personal capacity, and not that of
the government itself;
(14) prohibiting an employee from using their private time
to discuss religion with willing coworkers in public spaces
to the same extent as they may discuss other subjects, so
long as the public would reasonably understand the religious
expression to be that of the employees acting in their
personal capacities;
(15) discriminating against an employee on the basis of
their religion, religious beliefs, or views concerning their
religion by promoting, refusing to promote, hiring, refusing
to hire, or otherwise favoring or disfavoring, an employee or
potential employee because of his or her religion, religious
beliefs, or views concerning religion, or by explicitly or
implicitly, insisting that the employee participate in
religious activities as a condition of continued employment,
promotion, salary increases, preferred job assignments, or
any other incidents of employment or insisting that an
employee refrain from participating in religious activities
outside the workplace except pursuant to otherwise legal,
neutral restrictions that apply to employees' off-duty
conduct and expression in general (such as restrictions on
political activities prohibited by the Hatch Act);
(16) prohibiting a supervisor's religious expression where
it is not coercive and is understood to be his or her
personal view, in the same way and to the same extent as
other constitutionally valued speech;
(17) permitting a hostile environment, or religious
harassment, in the form of religiously discriminatory
intimidation, or pervasive or severe religious ridicule or
insult, whether by supervisors or fellow workers, as
determined by its frequency or repetitiveness, and severity;
(18) failing to accommodate an employee's exercise of their
religion unless such accommodation would impose an undue
hardship on the conduct of the agency's operations, based on
real rather than speculative or hypothetical cost and without
disfavoring other, nonreligious accommodations; and
(19) in those cases where an agency's work rule imposes a
substantial burden on a particular employee's exercise of
religion, failing to grant the employee an exemption from
that rule, absent a compelling interest in denying the
exemption and where there is no less restrictive means of
furthering that interest.
(c) Rule of Construction.--Nothing in this section shall be
construed to create any new right, benefit, or trust
responsibility, substantive or procedural, enforceable at law
or equity by a party against the United States, its agencies,
its officers, or any person.
Mr. WESTMORELAND (during the reading). Mr. Speaker, I ask unanimous
consent that the motion be considered as read and printed in the
Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Georgia?
There was no objection.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Georgia is recognized for 5 minutes in support of his motion.
Mr. WESTMORELAND. Mr. Speaker, I offer this motion to recommit with
instructions.
One of the most confusing areas of public life for most Americans
involves to what extent a person may express their personal religious
views. Everyone believes they have complete religious freedom and yet
the media often reports instances where courts or administrators say
people may not express their religious faith. The unfortunate result of
this confusion is that people tend to self-censor their behavior.
In 1997, the Clinton administration sent out guidelines to all
Federal agencies that specifically detailed an employee's right to
religious expression in the workplace. As then-President Clinton said
in his remarks on the executive memorandum, ``Religious freedom is at
the heart of what it means to be an American and at the heart of our
journey to become truly one America.''
America continues to see ever-growing and diverse forms of religious
expression, and unfortunately we have also seen an increase in the
attempts to undermine religious freedom and expression.
So, as we consider this bill, we should be clear that the Federal
employees do not have to check their faith at the door of their
workplace and are protected under this bill if they do report
violations of the current Clinton-era guidelines. In fact, it is often
their faith that makes them the compassionate social worker in the
employment office, the loving teacher in the Head Start program and the
caring medical professionals treating our wounded soldiers.
[[Page H2541]]
There is nothing more personal than a person's faith, and our Federal
employees deserve to know that they cannot be forced to check their
quality of life at the door. As such, this motion provides that it is
an abuse of authority for Federal agencies to prevent a Federal
employee from blowing the whistle on instances of retaliation against
permissible religious exercise and expression in the workplace.
The definition of permissible religious exercise and expression is
drawn from President Clinton's 1997 memorandum to Federal agencies
regarding religious expression in the Federal workplace. It includes,
for example, the ability of Federal employees to have a Bible on their
desk, wear a religious emblem on their clothing, or to express their
views to other employees. It also includes provisions protecting
against discrimination, harassment and coercion.
I believe this is an important addition to this bill, Mr. Speaker,
and I urge my colleagues to support the addition of this language.
Mr. Speaker, I yield back the balance of my time.
Mr. TIERNEY. Mr. Speaker, I am not opposing the motion, but I ask
unanimous consent to claim the time in opposition.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Massachusetts?
There was no objection.
Mr. TIERNEY. Mr. Speaker, we are prepared to accept this motion, and
assume that means we will have unanimity on final passage.
This appears to track President Clinton's executive order, and it is,
in fact, current law. To that extent, we have no difficulty in
accepting it.
The motion to recommit seems to extend the coverage of the
Whistleblower Protection Act to whistleblowers who report violations of
President Clinton's guidelines of religious exercise and religious
expression in the Federal workplace.
The guidelines apply to all civilian executive branch agencies,
officials, and employees of the Federal workforce, they specify which
religious expressions by covered employees, and under what
circumstances, are permitted or may be regulated or prohibited.
The guidelines were issued by President Clinton to clarify how to
address the sometimes difficult situations in the workplace where an
agency must balance the free expression rights of Federal workers with
the rights of other workers and the obligation of Federal authorities
not to engage in the official promotion of religion.
By providing greater clarity, the guidelines have helped to avoid
conflicts in the Federal workplace over the balance between religious
expression and the obligations of the Federal Government to the
Constitution, other employees and the general public.
With that, as I said, it seems to track that executive order; and if
it does, we are happy to accept it.
The SPEAKER pro tempore. Without objection, the previous question is
ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. WESTMORELAND. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair
will reduce to 5 minutes the minimum time for any electronic vote on
the question of passage.
The vote was taken by electronic device, and there were--ayes 426,
noes 0, not voting 7, as follows:
[Roll No. 152]
AYES--426
Abercrombie
Ackerman
Aderholt
Akin
Alexander
Allen
Altmire
Andrews
Arcuri
Baca
Bachmann
Bachus
Baird
Baker
Baldwin
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bean
Becerra
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehner
Bonner
Bono
Boozman
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Brady (TX)
Braley (IA)
Brown, Corrine
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Butterfield
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Carter
Castle
Castor
Chabot
Chandler
Clarke
Clay
Cleaver
Clyburn
Coble
Cohen
Cole (OK)
Conaway
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crenshaw
Crowley
Cubin
Cuellar
Culberson
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis (KY)
Davis, David
Davis, Lincoln
Davis, Tom
Deal (GA)
DeFazio
DeGette
Delahunt
DeLauro
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Donnelly
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Ellison
Ellsworth
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Everett
Fallin
Farr
Fattah
Feeney
Ferguson
Filner
Flake
Forbes
Fortenberry
Fossella
Foxx
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Giffords
Gilchrest
Gillibrand
Gillmor
Gingrey
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Graves
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hall (TX)
Hare
Harman
Hastert
Hastings (FL)
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hobson
Hodes
Hoekstra
Holden
Holt
Honda
Hooley
Hoyer
Hulshof
Hunter
Inglis (SC)
Inslee
Israel
Issa
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jindal
Johnson (GA)
Johnson (IL)
Johnson, E. B.
Johnson, Sam
Jones (NC)
Jones (OH)
Jordan
Kagen
Kanjorski
Kaptur
Keller
Kennedy
Kildee
Kilpatrick
Kind
King (IA)
King (NY)
Kingston
Kirk
Klein (FL)
Kline (MN)
Knollenberg
Kucinich
Kuhl (NY)
LaHood
Lamborn
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Lee
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Mahoney (FL)
Maloney (NY)
Manzullo
Marchant
Markey
Marshall
Matheson
Matsui
McCarthy (CA)
McCarthy (NY)
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHenry
McHugh
McIntyre
McKeon
McMorris Rodgers
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Mica
Michaud
Millender-McDonald
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murphy, Tim
Murtha
Musgrave
Myrick
Nadler
Napolitano
Neal (MA)
Neugebauer
Nunes
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Paul
Payne
Pearce
Pence
Perlmutter
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Rodriguez
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Salazar
Sali
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schmidt
Schwartz
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Sessions
Sestak
Shadegg
Shays
Shea-Porter
Sherman
Shimkus
Shuler
Shuster
Simpson
Sires
Skelton
Slaughter
Smith (NE)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Solis
Souder
Space
Spratt
Stark
Stearns
Stupak
Sullivan
Sutton
Tancredo
Tauscher
Taylor
Terry
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walberg
Walden (OR)
Walsh (NY)
Walz (MN)
Wamp
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Weldon (FL)
Weller
Westmoreland
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (OH)
Wilson (SC)
Wolf
Woolsey
Wu
Wynn
Yarmuth
Young (AK)
Young (FL)
NOT VOTING--7
Brown (SC)
Davis, Jo Ann
Granger
Meehan
Miller, George
Saxton
Tanner
{time} 1758
Mr. SHERMAN changed his vote from ``no'' to ``aye.''
So the motion to recommit was agreed to.
The result of the vote was announced as above recorded
Mr. BRALEY of Iowa. Mr. Speaker, pursuant to the instructions of the
House on the motion to recommit, I report the bill, H.R. 985, back to
the House with an amendment.
The SPEAKER pro tempore. The Clerk will report the amendment.
[[Page H2542]]
The Clerk read as follows:
Amendment:
Page 28, line 13, before ``Section'' insert ``(a) In
General.--__''.
Page 28, line 19, strike ``and''.
Page 28, line 21, strike ``.'.'' and insert ``; and''.
Page 28, after line 21, insert the following:
``(4) any action that discriminates for or against any
employee or applicant for employment on the basis of
religion, as defined by section 13(b) of the Whistleblower
Protection Enhancement Act of 2007.''.
Page 28, after line 21 (following the matter inserted by
the previous amendment), add the following:
(b) Definition.--As used in section 2302(f)(3) of title 5,
United States Code (as amended by subsection (a)), the term
``on the basis of religion'' means--
(1) prohibiting personal religious expression by Federal
employees to the greatest extent possible, consistent with
requirements of law and interests in workplace efficiency;
(2) requiring religious participation or non-participation
as a condition of employment, or permitting religious
harassment;
(3) failing to accommodate employees' exercise of their
religion;
(4) failing to treat all employees with the same respect
and consideration, regardless of their religion (or lack
thereof);
(5) restricting personal religious expression by employees
in the Federal workplace except where the employee's interest
in the expression is outweighed by the government's interest
in the efficient provision of public services or where the
expression intrudes upon the legitimate rights of other
employees or creates the appearance, to a reasonable
observer, of an official endorsement of religion;
(6) regulating employees' personal religious expression on
the basis of its content or viewpoint, or suppressing
employees' private religious speech in the workplace while
leaving unregulated other private employee speech that has a
comparable effect on the efficiency of the workplace,
including ideological speech on politics and other topics;
(7) failing to exercise their authority in an evenhanded
and restrained manner, and with regard for the fact that
Americans are used to expressions of disagreement on
controversial subjects, including religious ones;
(8) failing to permit an employee to engage in private
religious expression in personal work areas not regularly
open to the public to the same extent that they may engage in
nonreligious private expression, subject to reasonable
content- and viewpoint-neutral standards and restrictions;
(9) failing to permit an employee to engage in religious
expression with fellow employees, to the same extent that
they may engage in comparable nonreligious private
expression, subject to reasonable and content-neutral
standards and restrictions;
(10) failing to permit an employee to engage in religious
expression directed at fellow employees, and may even attempt
to persuade fellow employees of the correctness of their
religious views, to the same extent as those employees may
engage in comparable speech not involving religion;
(11) inhibiting an employee from urging a colleague to
participate or not to participate in religious activities to
the same extent that, consistent with concerns of workplace
efficiency, they may urge their colleagues to engage in or
refrain from other personal endeavors, except that the
employee must refrain from such expression when a fellow
employee asks that it stop or otherwise demonstrates that it
is unwelcome;
(12) failing to prohibit expression that is part of a
larger pattern of verbal attacks on fellow employees (or a
specific employee) not sharing the faith of the speaker;
(13) preventing an employee from--
(A) wearing personal religious jewelry absent special
circumstances (such as safety concerns) that might require a
ban on all similar nonreligious jewelry; or
(B) displaying religious art and literature in their
personal work areas to the same extent that they may display
other art and literature, so long as the viewing public would
reasonably understand the religious expression to be that of
the employee acting in her personal capacity, and not that of
the government itself;
(14) prohibiting an employee from using their private time
to discuss religion with willing coworkers in public spaces
to the same extent as they may discuss other subjects, so
long as the public would reasonably understand the religious
expression to be that of the employees acting in their
personal capacities;
(15) discriminating against an employee on the basis of
their religion, religious beliefs, or views concerning their
religion by promoting, refusing to promote, hiring, refusing
to hire, or otherwise favoring or disfavoring, an employee or
potential employee because of his or her religion, religious
beliefs, or views concerning religion, or by explicitly or
implicitly, insisting that the employee participate in
religious activities as a condition of continued employment,
promotion, salary increases, preferred job assignments, or
any other incidents of employment or insisting that an
employee refrain from participating in religious activities
outside the workplace except pursuant to otherwise legal,
neutral restrictions that apply to employees' off-duty
conduct and expression in general (such as restrictions on
political activities prohibited by the Hatch Act);
(16) prohibiting a supervisor's religious expression where
it is not coercive and is understood to be his or her
personal view, in the same way and to the same extent as
other constitutionally valued speech;
(17) permitting a hostile environment, or religious
harassment, in the form of religiously discriminatory
intimidation, or pervasive or severe religious ridicule or
insult, whether by supervisors or fellow workers, as
determined by its frequency or repetitiveness, and severity;
(18) failing to accommodate an employee's exercise of their
religion unless such accommodation would impose an undue
hardship on the conduct of the agency's operations, based on
real rather than speculative or hypothetical cost and without
disfavoring other, nonreligious accommodations; and
(19) in those cases where an agency's work rule imposes a
substantial burden on a particular employee's exercise of
religion, failing to grant the employee an exemption from
that rule, absent a compelling interest in denying the
exemption and where there is no less restrictive means of
furthering that interest.
(c) Rule of Construction.--Nothing in this section shall be
construed to create any new right, benefit, or trust
responsibility, substantive or procedural, enforceable at law
or equity by a party against the United States, its agencies,
its officers, or any person.
Mr. BRALEY of Iowa (during the reading). Mr. Speaker, I ask unanimous
consent that the amendment be considered as read and printed in the
Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Iowa?
There was no objection.
The SPEAKER pro tempore. The question is on the amendment.
The amendment was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. BRALEY of Iowa. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 331,
nays 94, not voting 8, as follows:
[Roll No. 153]
YEAS--331
Abercrombie
Ackerman
Alexander
Allen
Altmire
Andrews
Arcuri
Baca
Bachus
Baird
Baldwin
Barrow
Bartlett (MD)
Barton (TX)
Bean
Becerra
Berkley
Berman
Berry
Bilbray
Bilirakis
Bishop (GA)
Bishop (NY)
Blumenauer
Bono
Boozman
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Brown-Waite, Ginny
Buchanan
Burton (IN)
Butterfield
Calvert
Camp (MI)
Capito
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castle
Castor
Chabot
Chandler
Clarke
Clay
Cleaver
Clyburn
Coble
Cohen
Cole (OK)
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crenshaw
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
Davis, Tom
DeFazio
DeGette
Delahunt
DeLauro
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Donnelly
Doolittle
Doyle
Drake
Edwards
Ehlers
Ellison
Ellsworth
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Farr
Fattah
Ferguson
Filner
Fortenberry
Fossella
Frank (MA)
Frelinghuysen
Gerlach
Giffords
Gilchrest
Gillibrand
Gillmor
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Graves
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hall (TX)
Hare
Harman
Hastings (FL)
Hayes
Heller
Herger
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hobson
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Hulshof
Inslee
Israel
Issa
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jindal
Johnson (GA)
Johnson (IL)
Johnson, E. B.
Jones (NC)
Jones (OH)
Kagen
Kanjorski
Kaptur
Keller
Kennedy
Kildee
Kilpatrick
Kind
King (NY)
Kirk
Klein (FL)
Kucinich
Kuhl (NY)
LaHood
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
LaTourette
Lee
Levin
Lewis (CA)
Lewis (GA)
Lipinski
LoBiondo
Loebsack
Lofgren, Zoe
Lowey
Lucas
Lynch
Mahoney (FL)
Maloney (NY)
Manzullo
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCaul (TX)
McCollum (MN)
McCrery
McDermott
McGovern
McHugh
McIntyre
McMorris Rodgers
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
[[Page H2543]]
Michaud
Millender-McDonald
Miller (MI)
Miller (NC)
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murphy, Tim
Murtha
Nadler
Napolitano
Neal (MA)
Nunes
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Paul
Payne
Perlmutter
Peterson (MN)
Peterson (PA)
Petri
Pickering
Platts
Poe
Pomeroy
Porter
Price (NC)
Pryce (OH)
Rahall
Ramstad
Rangel
Regula
Reichert
Renzi
Reyes
Rodriguez
Rohrabacher
Ros-Lehtinen
Roskam
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shays
Shea-Porter
Sherman
Shimkus
Shuler
Sires
Skelton
Slaughter
Smith (NJ)
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sullivan
Sutton
Tauscher
Taylor
Terry
Thompson (CA)
Thompson (MS)
Tiahrt
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walsh (NY)
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Weller
Wexler
Whitfield
Wicker
Wilson (OH)
Wilson (SC)
Wolf
Woolsey
Wu
Wynn
Yarmuth
Young (AK)
NAYS--94
Aderholt
Akin
Bachmann
Baker
Barrett (SC)
Biggert
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Brady (TX)
Burgess
Buyer
Campbell (CA)
Cannon
Cantor
Carter
Conaway
Cubin
Culberson
Davis (KY)
Davis, David
Deal (GA)
Dreier
Duncan
Everett
Fallin
Feeney
Flake
Forbes
Foxx
Franks (AZ)
Gallegly
Garrett (NJ)
Gingrey
Hastert
Hastings (WA)
Hensarling
Hoekstra
Hunter
Inglis (SC)
Johnson, Sam
Jordan
King (IA)
Kingston
Kline (MN)
Knollenberg
Lamborn
Latham
Lewis (KY)
Linder
Lungren, Daniel E.
Mack
Marchant
McCarthy (CA)
McHenry
McKeon
Mica
Miller (FL)
Miller, Gary
Musgrave
Myrick
Neugebauer
Pearce
Pence
Pitts
Price (GA)
Putnam
Radanovich
Rehberg
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shuster
Simpson
Smith (NE)
Smith (TX)
Souder
Stearns
Tancredo
Thornberry
Walberg
Wamp
Weldon (FL)
Westmoreland
Wilson (NM)
Young (FL)
NOT VOTING--8
Brown (SC)
Davis, Jo Ann
Granger
McCotter
Meehan
Miller, George
Saxton
Tanner
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). Members are advised 2
minutes remain in this vote.
{time} 1808
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________
