“[To] inform the public as to that which is done in their name and that which is done against them.”` That’s what Edward Snowden said was in his mind when he disclosed information about the National Security Agency’s PRISM program and its national Call Database. Snowden is the latest voice in a chorus the U.S. government has recognized since the Civil War (and likely heard from long before even then): the whistleblower. Lionized and derided in equal measure, whistleblowers have performed the essential role of front-line oversight, oftentimes under fear for their jobs, or worse. Three pieces of federal legislation have long formed the protective shielding for American whistleblowers: the Act To Prevent and Punish Frauds upon the Government of the United States in 1863, the Lloyd-La Follette Act of 1912, and the Whistleblower Protection Act in 1989.
The Act To Prevent and Punish Frauds upon the Government of the United States, which is also known at the United States False Claims Act, or colloquially known as the “Lincoln Law,” was enacted in response to a slew of contractors’ brazenly defrauding the government of enormous sums. Some of the Act’s text:
“[E]very person so offending [- making or being a party to any ‘false, fictitious, or fraudulent’ claims against the U.S. government -] may be arrested and held for trial by a court-martial, and if found guilty shall be punished by fine and imprisonment, or such other punishment as the court-martial may adjudge, save the punishment of death.”*
The Act also included a “qui tam” provision, which entitled whistleblowers to a percentage of the funds the government recovered from those sought to take advantage of it. Qui tam provisions have long been factors in legal matters, and continue to be to this day.
The Lloyd-La Follette Act (37 Stat. 555) was passed to combat a set of Executive Orders passed by the offices of Presidents Theodore Roosevelt and William Howard Taft. These Orders severely curtailed the rights of federal employees who wished to spotlight fraud/waste/incompetence in their departments by contacting members of Congress. Roosevelt’s Executive Order 163 (signed January 31, 1902):
“All officers and employees of the United States of every description serving in or under any of the Executive Departments and whether so serving in or out of Washington are hereby forbidden either direct or indirect, individually or through associations, to solicit an increase of pay, or to influence or to attempt to influence in their own interest any legislation whatever, either before Congress or its Committees, or in any way save through the heads of the Departments in or under which they serve, on penalty of dismissal from the government service.”#
and Taft’s Executive Order 1142 (signed November 26, 1909):
“It is hereby ordered that no bureau, office, or division chief, or subordinate in any department of the Government, and no officer of the Army or Navy or Marine Corps stationed in Washington, shall apply to either House of Congress, or to any committee of either House of Congress, or to any Member of Congress, for legislation, or for appropriations, or for congressional action of any kind, except with the consent and knowledge of the head of the department; nor shall any such person respond to any request for information from either House of Congress, or any committee of either House of Congress, or any Member of Congress, except through, or as authorized by, the head of his department.”=
One of the Act’s namesakes, Robert La Follette, Sr., read into the Congressional Record several letters he’d received from current and former employees of the United States Post Office, men who felt they had no choice but to contact him and report the conditions under which they had to perform their jobs:
“Men of long service, not only in the mail service but in the service of their country, and those who from injuries received on the road after a partial recovery being assigned to some light duty, have been made to feel that they have indeed labored in vain. The order of continuing in service 12 consecutive days of the messenger service on the Boston, Springfield and New York railway post office, which previously had been 6 days on and 6 off. And this a veteran of 42 years of service on the road as well as a veteran of the Civil War.”*
Participation in labor unions, too, was discouraged:
“I was ordered to call at the office of Division Superintendent Alex Grant, who insisted that in accordance with letter of Assistant Postmaster General Stewart, it was my duty to withdraw at once from the National Brotherhood of Railway Postal Clerks; that failure to do so would be considered as insubordination; and that the ‘department’ was determined to break up such organizations.”*
The union’s elected president around this time was Peter J. Schardt, who was referred to by one of La Follette’s correspondents as, “absolutely under the domination of the department.”* Furthermore, a letter sent to voting members encouraged them to vote for candidates closely aligned with management: “[A] vote to better our own working condition, not by antagonizing the department, but by working in harmony with them.”*
Post Office Division Superintendent Alex Grant, a fighter against the forces of unionization, inadvertently summed up the conditions in the department with great efficiency: “You understand that anyone who takes such a stand against the department is liable to get hurt.”*
Oscar F. Nelson, the president of the National Federation of Post Office Clerks, testified before the House Committee on Reform in the Civil Services. La Follette summarized his testimony thus:
“The head of the department, the president, is not in the service. He was dismissed as a clerk from the Chicago post office. He had been particularly efficient. He had just a few weeks before his dismissal received a promotion to the highest salary possible in the service in which he was employed. The cause for his dismissal was that he gave publicity to the insanitary conditions existing in some part of the post-office building in Chicago where the clerks were required to perform their services. He had made every possible effort to secure a remedy for those conditions. Being unable to do so he furnished some facts to the press of Chicago, and publication was made of the conditions. They were simply horrible. He was not driven to take this course until four deaths had occurred right in that office from contagious disease contracted as a result of the insanitary conditions. The public health officers of Chicago, as soon as their attention was called to the conditions, condemned the situation as they found it; and yet this young man… was removed from the service because he had given publicity to these outrageous conditions.”*
In response to this slew of complaints, the Lloyd-La Follette Act codified some federal employees’ rights of job protection, and the Act concludes: “The right of persons employed in the civil service of the United States, either individually or collectively, to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to a committee or member thereof, shall not be denied or interfered with.”+
The Whistleblower Protection Act of 1989 extended protection to whistleblowers that come forward with allegations of government misconduct. Specifically:
“The purpose of this Act is to strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government by (1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices.”*
2012 saw President Obama’s signing of the Whistleblower Protection Enhancement Act, which had been proposed in some form during four prior Congressional sessions, but never passed.
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 established the Office of the Whistleblower Protection Program in OSHA, a resource for employees of the financial sector seeking to report misconduct (whistleblowers.gov). Its current chief is Sean McKessy, whose resume includes a position as the Corporate Secretary at Altria from 2008-2009, Securities Counsel at Caterpillar from 2000-2005, and as SEC Senior Counsel from 1997-2000.
Canada’s Public Servants Disclosure Protection Act of 2007 established a Public Sector Integrity Commissioner, whose office “provides a safe and confidential mechanism enabling public servants and the general public to disclose wrongdoings committed in the public sector. It also protects from reprisal public servants who have disclosed wrongdoing and those who have cooperated in investigations.”^
` quoted from The Guardian profile
*text obtained via searching Proquest Legislative Insight to Readex U.S. Congressional Serial Set
^ text obtained from the website of the Public Service Integrity Commissioner
+ text obtained from Hein Online
# text obtained from the American Presidency Project at UC-Santa Barbara
= text obtained from WikiSource.org