Providing 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.

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

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. Chairman, I yield 5 minutes to the chairman of the committee, Mr. Waxman of California.

Mr. Chairman, I yield 4 minutes to my distinguished colleague from Maryland, Mr. Cummings.

Mr. Chairman, I thank the gentleman for his insightful comments, and I reserve the balance of my time.

Yes.

Mr. Chairman, I yield 3\1/2\ minutes to the distinguished gentlewoman from Texas (Ms. Jackson-Lee).

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. 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

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.

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. Chairman, I yield 3 minutes to the distinguished gentleman from Michigan (Mr. Stupak).

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.

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.''

Mr. Chairman, I rise in support of this amendment offered by the gentleman from Pennsylvania and commend him for his work.

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. Chairman, I rise in support of the amendment.

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. Chairman, I rise in strong opposition to this amendment.

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. 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. Chairman, I am not opposed, but I ask unanimous consent to claim the time in opposition.

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.

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.

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.

Mr. Speaker, on that I demand the yeas and nays.

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

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. 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.

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. Chairman, I yield 4 minutes to the gentleman from Michigan (Mr. Hoekstra), the distinguished

ranking member of the House Permanent Select Committee on Intelligence.

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

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.

``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. Chairman, does the gentleman from Iowa have any additional speakers?

Mr. Chairman, I will then continue to reserve the balance of my time.

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. Chairman, I continue to reserve the balance of my time.

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.

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.

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.

Mr. Chairman, I offer an amendment.

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.

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.

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. 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. 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.

Mr. Chairman, I demand a recorded vote.

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. Chairman, how much time do I have?

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. 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.

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.

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. Chairman, I rise to claim the time in opposition to the amendment.

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. 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. Chairman, I demand a recorded vote.

Mr. Chairman, I rise to claim the time in opposition.

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. Chairman, I just urge my colleagues to oppose the amendment, and I yield back the balance of my time.

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. 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. Chairman, I offer an amendment.

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

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. 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,

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. Chairman, I yield the balance of my time to the gentleman from Iowa (Mr. Braley).