Whistleblower Protection Enhancement Act of 2010

Madam Speaker, I missed the following votes from Friday, December 17 through Wednesday, December 22, 2010. I would have voted ``yes'' on the following votes:

Friday:

H.J. Res. 105--Making Further Continuing Appropriations for Fiscal Year 2011 (Representative Obey--Appropriations) (Voice vote)

1. H. Res. 1377--Honoring the accomplishments of Norman Yoshio Mineta (Representative Honda--House Administration)

2. Senate Amendment to H.R. 1107--To enact certain laws relating to public contracts as title 41, United States Code, ``Public Contracts'' (Representative Conyers--Judiciary)

3. Senate Amendment to H.R. 628--To establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges (Representative Issa-- Judiciary)

4. H. Res. 1733--Recognizing Mark Twain as one of America's most famous literary icons on the 175th anniversary of his birth and the 100th anniversary of his death (Representative Snyder--Oversight and Government Reform)

5. H. Res. 1621--Recognizing the 100th anniversary of the historic founding of Catholic Charities USA (Representative Holt--Oversight and Government Reform)

6. H. Res. 1767--Commending the Wisconsin Badger football team for an outstanding season and 2011 Rose Bowl bid (Representative Baldwin-- Education and Labor)

7. H. Con. Res. 335--Honoring the exceptional achievements of Ambassador Richard Holbrooke and recognizing the monumental contributions he has made to United States national security, humanitarian causes, and peaceful resolutions of international conflict (Representative Lowey--Foreign Affairs)

8. S. 3874--Reduction of Lead in Drinking Water Act (Senator Boxer-- Energy and Commerce)

9. H.R. 6533--To implement the recommendations of the Federal Communications Commission report to the Congress regarding low-power FM service (Representative Doyle--Energy and Commerce)

10. H.R. 6523--Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Representative Skelton--Armed Services)

11. H.R. 2142--Government Efficiency, Effectiveness, and Performance Improvement Act of 2009 (Representative Cuellar--Oversight and Government Reform)

12. H.R. 5510--Aiding Those Facing Foreclosure Act of 2010 (Representative Kaptur--Financial Services)

Tuesday:

Motion to Concur in the Senate Amendment to H.R. 5116--America COMPETES Reauthorization Act of 2010 (Representative Gordon--Science and Technology)(228-130)

Motion to Concur in the Senate Amendment to H.R. 2142--Government Efficiency, Effectiveness, and Performance Improvement Act (Representative Cuellar--Oversight and Government Reform) (216-139)

Motion to Concur in the Senate Amendment to H.R. 2751--FDA Food Safety Modernization Act (Representatives Waxman/Dingell--Energy and Commerce) (215-144)

Motion to Concur in the Senate Amendment to H.R. 3082--Making Further Continuing Appropriations for Fiscal Year 2011 (Representative Obey-- Appropriations) (193-165)

1. S. 3592--A bill to designate the facility of the United States Postal Service located at 100 Commerce Drive in Tyrone, Georgia, as the ``First Lieutenant Robert Wilson Collins Post Office Building'' (Senator Chambliss--Oversight and Government Reform)

2. Senate Amendment to H.R. 81--Shark Conservation Act (Representative Bordallo--Natural Resources)

3. Senate Amendment to H.R. 5809--Diesel Emissions Reduction Act of 2010 (Representative Inslee--Energy and Commerce)

4. H.R. 6540--To require the Secretary of Defense, in awarding a contract for the KC-X Aerial Refueling Aircraft Program, to consider any unfair competitive advantage that an offeror may possess (Representative Inslee--Armed Services)

5. H.R. 6547--To amend the Elementary and Secondary Education Act of 1965 to require criminal background checks for school employees (Representative George Miller--Education and Labor)

6. S. 118--Section 202 Supportive Housing for the Elderly Act (Senator Kohl--Financial Services)

7. S. 1481--Frank Melville Supportive Housing Investment Act (Senator Menendez--Financial Services)

8. S. 3243--Anti-Border Corruption Act of 2010 (Senator Pryor/ Representative Shuler--Homeland Security)

9. S. 2925--Domestic Minor Sex Trafficking Deterrence and Victims Support Act of 2010 (Senator Wyden--Judiciary)

10. Senate Amendment to H.R. 4748--Northern Border Counternarcotics Strategy Act of 2010 (Representative Owens--Judiciary)

11. Senate Amendment to H.R. 1746--Pre-Disaster Mitigation Act of 2009 (Representative Oberstar--Transportation and Infrastructure)

Wednesday:

Motion to Concur in the Senate Amendment to H.R. 847--James Zadroga 9/11 Health and Compensation Act (Representative Maloney--Energy and Commerce)(206-60)

Bills Adopted By Unanimous Consent (13):

1. Senate Amendment to H.R. 6523--Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (Representative Skelton--Armed Services)

2. S. 3481--Amending the Federal Water Pollution Control Act to clarify Federal responsibility for stormwater pollution (Senator Cardin--Transportation and Infrastructure)

3. House Amendment to S. 372--Whistleblower Protection Enhancement Act (Senator Akaka--Oversight and Government Reform)

4. H. Res. 1461--Supporting Olympic Day on June 23, 2010, and congratulating Team USA and World Fit participants (Representative Langevin--Oversight and Government Reform)

5. S. 4036--A bill to clarify the National Credit Union Administration authority to make stabilization fund expenditures without borrowing from the Treasury (Senator Dodd--Financial Services)

6. S. Con. Res. 67--A concurrent resolution celebrating 130 years of United States-Romanian diplomatic relations, congratulating the Romanian people on their achievements as a great nation, and reaffirming the deep bonds of trust and values between the United States and Romania, a trusted and most valued ally (Senator Voinovich-- Foreign Affairs)

7. Senate Amendment to H.R. 6560--Removal Clarification Act of 2010 (Representative Hank Johnson--Judiciary)

8. H. Res. 1779--Honoring the 50th anniversary of the Freedom Riders (Representative John Lewis (GA)--Judiciary)

9. Senate Amendment to H.R. 5901--Real Estate Jobs and Investment Act of 2010 (Representative Joe Crowley--Ways & Means)

10. H. Res. 1783--Technical Correction to H. Res. 1757 (Representative Brady (PA)--House Administration)

11. S. 4058--Helping Heroes Keep Their Homes Act of 2010 (Senator Kerry--Veterans' Affairs)

12. S. 3903--To authorize leases of up to 99 years for lands held in trust for Ohkay Owingeh Pueblo (Senator Udall--Natural Resources)

13. Senate Amendment to H.R. 6517--To extend trade adjustment assistance and certain trade preference programs, to amend the Harmonized Tariff Schedule of the United States to modify temporarily certain rates of duty, and for other purposes (Representative Levin-- Ways and Means)

Mr. President, I rise today to introduce, with Senators Grassley, Feingold, Durbin and Brown, the Preserve Access to Affordable Generics Act. Our legislation will prevent one of the most egregious tactics used to keep generic competitors off the market, leaving consumers with unnecessarily high drug prices. The way it is done is simple--a drug company that holds a patent on a brand-name drug pays a generic drug maker to not sell a competing product. The brand name company profits so much by delaying competition that it can easily afford to pay off the generic company. The only losers are the American people, who continue to pay unnecessarily high drug prices for years to come.

Our legislation is basically very simple it will make these anti- competitive, anti-consumer patent payoffs illegal. We will thereby end a practice seriously impeding generic drug competition, competition that could save consumers literally billions of dollars in health care costs. When we first introduced this legislation to ban these pay-off settlements in 2007, it had broad support from those concerned with rising health care costs, including the AARP. The New York Times editorialized in January 2007 in support of legislation to ban the pay- off settlements, pointing out that the settlements ``are a costly legal loophole that needs to be plugged by Congressional legislation.''

Despite the opposition of the Federal Trade Commission to these anti- competitive patent settlements, two 2005 appellate court decisions have permitted these backroom payoffs. And the effect of these court decisions has been stark. In the two years after these two decisions, the FTC has found, half of all patent settlements involved payments from the brand name from the generic manufacturer in return for an agreement by the generic to keep its drug off the market. In the year before these decisions, not a single patent settlement reported to the FTC contained such an agreement.

When brand name drugs lose their patent monopoly, this opens the door for consumers, employers, third-party payers, and other purchasers to save billions--30 percent to 80 percent on average--by using generic versions of these drugs. A recent study released by the Pharmaceutical Care Management Association showed that health plans and consumers could save $26.4 billion over 5 years by using the generic versions of 14 popular drugs that are scheduled to lose their patent protections before 2010.

The urgency of the need for this legislation was highlighted just yesterday, when the FTC filed an antitrust case challenging the latest ``pay for delay'' settlement. The FTC's Complaint alleges that Solvay, the brand name manufacturer of a hormone-boosting drug, entered into an agreement with two generic companies to delay the entry of their generic version of the drug for nine years. The FTC alleged that Solvay agreed in 2006 to share its profits with the generic competitors as long as they did not launch their generic versions until 2015. If these allegations are true, this is exactly the anti-consumer, anti- competition agreement that would be rendered illegal by our bill.

We introduced this bill in the last Congress and it passed out of the Judiciary Committee without a dissenting vote. Nonetheless, we heard from some in the generic drug industry that on occasion these patent settlements may not harm competition. That is why this year's version of the legislation includes a new provision not contained in the bill introduced in the last Congress. This new provision would permit the Federal Trade Commission the guardians of competition in this industry to exempt from this amendment's ban certain agreements if the FTC determines such agreements would benefit consumers. This provision will ensure that our amendment does not prevent any agreements which will truly benefit consumers.

It is also important to note that--contrary to the arguments made by some--our amendment will not ban all patent settlements. In fact, our bill will not ban any settlement which does not involve an exchange of money. This legislation will do nothing to prevent parties from settling patent litigation with an agreement that a generic will delay entry for some period of time in return for ending its challenge to the validity of the patent. Only the egregious pay-off settlements in which the brand name company also pays the generic company a sum of money to do so will be banned.

In closing, we cannot profess to care about the high cost of prescription drugs while turning a blind eye to anticompetitive backroom deals between brand and generic drug companies. It is time to stop these drug company pay-offs that only serve the companies involved and deny consumers to affordable generic drugs. I urge my colleagues to join me in this effort by supporting this legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Madam Speaker, I ask unanimous consent to take from the Speaker's table the bill (S. 372) to amend chapter 23 of title 5, United States Code, to clarify the disclosures of information protected from prohibited personnel practices, require a statement in nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protections, provide certain authority for the Special Counsel, and for other purposes, and ask for its immediate consideration in the House.

Madam Speaker, I have an amenment at the desk.

Madam Speaker, I rise in strong support of S. 372, the Whistleblower Protection Enhancement Act of 2010.

I would like to thank Senator Akaka, and the other Senators who have worked so hard to advance this bill to provide stronger whistleblower protections. This effort has spanned over a decade, and I am hopeful that it will come to a successful conclusion today.

Whistleblower protections are a critical component in bringing about a more effective and accountable government. As the Congress considers proposals to address the deficit, our work needs to be pursued on numerous fronts. Whistleblowers risk their careers to challenge abuses, and gross waste of government resources. They deserve to be protected so they can carry out their important work conscientiously, and with the taxpayers best interests in mind.

By providing new rights, remedies, and protections for government whistleblowers, this bill takes an important step toward curbing waste, fraud, and abuse. This will aid our deficit reduction efforts.

S. 372, as passed by the Senate, reflects a bipartisan compromise between the original Senate bill and H.R. 1507, legislation I sponsored with Representatives Platts, Chairman Towns, and Representatives Waxman and Braley.

The Oversight and Government Reform Committee has reported similar legislation, on a bipartisan basis, in each of the last two Congresses. The House of Representatives has twice passed similar bills, once in 2007 with 331 votes and again as a bipartisan amendment to the Recovery Act.

Unfortunately, H.R. 1507 was stripped out of the Recovery Act during the conference with the Senate.

Over the course of the last two years, we have worked with the Obama administration and the Senate to work out a compromise that retains the core protections for federal workers and national security personnel that were included in bills passed by the House in 2007 and 2009.

The bill before us today restores Congress' intent to protect an employee for any lawful disclosure of waste, fraud, abuse, or illegality. S. 372 addresses several court decisions that have limited the protections Congress made available to federal employees under the 1989 Whistleblower Protection Act. These decisions quite frankly have gutted the protections available to federal employees.

This bill provides the opportunity for whistleblower cases before the Merit Systems Protection Board to be reviewed by all of the Federal Circuits. Moreover it provides an opportunity for certain cases to receive jury trials. This expansion of opportunity for judicial review is critical. While I would have preferred broader criteria for review and that this enhanced judicial review be made permanent, I have reluctantly accepted the changes made by the Senate to narrow the circumstances under which cases can receive judicial review and to sunset these provisions in 5 years.

This legislation also protects federal employees for disclosures related to distortions of government science and extends to employees of the Transportation Security Administration.

S. 372 is a good bipartisan, bicameral compromise, and should be sent to the President without further delay. This bill, as passed by the Senate, included important protections for national security employees. These provisions had been included with significant input from the national security community and passed the Senate by unanimous consent. Unfortunately, jurisdictional disputes within the House have prompted us to remove these protections in the interest of passing the rest of these essential reforms. I regret the loss of these provisions and look forward to working with incoming Chairman Issa to advance these protections for national security employees in the next Congress.

I want to thank my cosponsor and partner on this bill, Todd Platts for his assistance and strong leadership. I also want to thank Chairman Towns and Ranking Member Issa for their strong support throughout this Congress to advance this important legislation.

I'll close by simply noting that this legislation is long overdue. Without whistleblowers and the unfiltered information that government insiders can provide, the oversight functions vested in Congress would be seriously compromised, as would our efforts to rein in the federal budget deficit. I encourage all Members to support this important bill.

Madam Speaker, I rise today in support of the S. 372, the ``Whistleblower Protection Enhancement Act of 2010.''

S. 372 amends the Whistleblower Protection Act (WPA) and strengthens the rights and protections of Federal employees who come forward to disclose government waste, fraud, abuse, and mismanagement. The House has passed similar legislation on a bipartisan basis in 2007 (H.R. 985) and 2009, as an amendment to the Recovery Act.

I am a staunch advocate for protecting Federal employees from retaliation when they come forward to disclose waste, fraud, abuse and mismanagement. Whistleblowers are among the most patriotic and conscientious Federal employees. They take great risks to make certain that our Federal Government is functioning properly and effectively for all taxpayers. They serve as indispensable guardians for the efficient use of taxpayer funds. This is an especially valuable service during this vital period of national economic recovery.

Unhindered exposure of waste, fraud and abuse identifies expensive break-downs in the functioning of our Federal Government while also preserving the Federal funds we require to effectively serve our citizens. In some instances, conscientious whistleblowers protect others from harm and actually save lives. So, we must protect these attentive Federal employees who expose systemic lapses and protect the integrity and proper functioning of our Federal Government.

Discrimination and retaliation against Federal employees contravenes Federal law, puts the public at risk, and costs taxpayers millions of dollars. Retaliation and discrimination also breed a myriad of other costs that cannot be quantified in the toll exacted on the health, morale, and well-being of Federal employees who are entrusted to protect and serve our Nation. Federal managers and supervisors who engage in discriminatory conduct must be judiciously and expeditiously disciplined.

S. 372, the ``Whistleblower Protection Enhancement Act of 2010'' enhances the protection of Federal employees. It restores Congress' intent to protect an employee who makes any lawful disclosure of waste, fraud, abuse, or illegality. S. 372 addresses court decisions that have limited the protections Congress made available to Federal employees under the 1989 Whistleblower Protection Act.

This legislation will improve the administration of justice. It will allow non-intelligence whistleblowers to bring their cases before a jury under certain circumstances. The current administrative system will be further strengthened by allowing a limited number of more complex whistleblower cases to be considered in Federal court by juries. The bill also will allow whistleblower appeals to be heard by the regional Federal appellate courts.

This bill further expands upon the protections for Federal employees in additional necessary and meaningful ways. It extends whistleblower protections to employees at the Transportation Security Administration. It clarifies that whistleblowers may disclose evidence of censorship of scientific or technical information under the same standards that apply to disclosures of other kinds of waste, fraud, and abuse. It enhances protections for employees facing retaliation after refusing to violate the law or participating in an Inspector General investigation.

This legislation will codify and strengthen rules that preempt agencies from issuing regulations or directives that interfere with whistleblower protections. I am also pleased to say, that for the first time, S. 327 will make compensatory damage awards available to whistleblowers. This is a key component in ensuring a whistleblower is made whole after suffering retaliation. This bill will also make it easier for the Office of Special Counsel to discipline agency managers who are found to retaliate against employees.

It is my fervent expectation that this legislation will meaningfully advance our national integrity by deterring Federal managers from violating the civil rights and civil liberties of their fellow Federal workers, especially whistleblowers.

I ask my colleagues to stand with me today and vote in favor of S. 327.

The bill was ordered to be read a third time, was read the third time, and passed, and a motion to reconsider was laid on the table.

Mr. President, today I rise to reintroduce the Whistleblower Protection Enhancement Act. I am pleased that Senators Collins, Grassley, Levin, Lieberman, Voinovich, Leahy, Kennedy, Carper, Pryor, and Mikulski have joined as cosponsors of this bill.

I have been a long-time proponent of strengthening the rights and protections of federal whistleblowers. Last year, my bill, the Federal Employee Protection of Disclosures Act, S. 274, passed the Senate by unanimous consent in December 2007. A similar House bill, the Whistleblower Protection Enhancement Act, also passed in March 2008. Unfortunately, we were not able to reconcile the two bills and enact whistleblower protections before the 110th Congress adjourned.

The need for strengthened whistleblower protections is clear. In this time of economic crisis, we cannot wait to act on measures to make sure the government uses tax dollars efficiently and effectively. Indeed, President Obama emphasized the need for improved accountability in his inaugural address, stating:

Those of us who manage the public's dollars will be held to

account--to spend wisely, reform bad habits, and do our

business in the light of day--because only then can we

restore the vital trust between a people and their

government.

This legislation will help us hold those who manage the public's dollars accountable by strengthening protections for Federal workers who shed light on Government waste, fraud, and abuse. Our bill also will contribute to public health and safety, civil rights and civil liberties, national security, and other valuable interests. Federal employees often are in the best position to observe and disclose Federal Government wrongdoing that can affect every aspect of our economy and our lives, and fewer employees will have the courage to disclose wrongdoing without meaningful whistleblower protections.

The Whistleblower Protection Act, WPA, was intended to shield Federal whistleblowers from retaliation, but the Federal Circuit and the Merit Systems Protection Board repeatedly have issued decisions that misconstrue the WPA and scale back its protections. Federal whistleblowers have prevailed on the merits of their claims before the Federal Circuit Court of Appeals, which has sole jurisdiction over federal employee whistleblower appeals, only three times in hundreds of cases since 1994. That is why further action is necessary.

I will highlight a few of the important provisions in this bill. Our bill would eliminate a number of restrictions that the Federal Circuit has read into the law regarding when disclosures are covered by the WPA. In light of the Federal Circuit's restrictive reading of the WPA, it would establish a pilot program to allow whistleblower appeals to be filed in the appropriate regional Federal Court of Appeals for five years, and would require a Government Accountability Office review of that change 40 months after enactment. This bill would bar agencies from enforcing a nondisclosure policy, revoking an employee's security clearance, or investigating an employee in retaliation for a protected disclosure.

This bill also includes a few improvements in whistleblower protection that were not in S. 274. It would expand the coverage of the Whistleblower Protection Act to include employees of the Transportation Security Administration. Additionally, it would make clear that disclosures of censorship of scientific information that could lead to gross government waist or mismanagement, a substantial and specific danger to public health or safety, or a violation of law are protected.

Congress has a duty to provide strong protections for Federal whistleblowers. Only when Federal employees are confident that they will not face retaliation will they feel comfortable coming forward to disclose information that can be used to improve government operations, our national security, and the health of our citizens.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.