Whistleblower Protections

Floor Speech

Mr. GRASSLEY. Mr. President, during the height of the Presidential campaign, President Obama made a number of high profile statements and promises about what actions he would take once he was elected and sworn in. These promises outlined a number of important issues such as closing the revolving door for lobbyists in the executive branch, ending the use of no-bid contracts, and curbing the influence of special interests, to name just a few.

Over the years, I have been an outspoken supporter of legislation that would make the Government more transparent and open. I have authored and supported a number of bills that would open the Government up and make it more accountable to the citizens. In particular I have been strong advocate for whistleblowers. Most importantly, I have always pushed the Government to be accountable by conducting vigorous oversight of the Federal bureaucracy regardless of which party controls Congress or the White House. I have been an equal opportunity overseer and have given my Republican colleagues as many headaches as I have given Democrats.

Given my background on oversight, I was supportive of some of the statements President Obama made as a candidate with respect to transparency and openness in Government. A document on the Obama campaign Web site titled, ``Restoring Trust in Government and Improving Transparency,'' outlined ethics and contracting reform, and included a statement that:

Obama will sign legislation in the light of day without attaching signing statements that undermine legislative intent.

Candidate Obama further discussed signing statements during a campaign speech where he said that his administration was ``not going to use signing statements as a way of doing an end run around Congress.'' A video of that speech is available online for all to see.

I was also encouraged by candidate Obama's promises to protect employees in the Federal Government who blow the whistle on fraud, waste, and abuse. In yet another campaign document, candidate Obama stated that he would ``strengthen whistleblower laws to protect Federal workers who expose waste, fraud, and abuse of authority in government.'' That statement was posted on the Change.gov Web site of the Obama Transition Team for all to see. It was a welcome message to the employees of the executive branch that risk their careers and stick their necks out to alert Congress, inspectors General, and the public about fraud, waste, and abuse in Government agencies and programs.

These employees, also known as whistleblowers, often do nothing more than ``commit truth,'' and for it they are shunned by their agencies, coworkers, friends, and government. My colleagues have all heard me say time and again that whistleblowers are as welcome as a skunk at a Sunday picnic. These patriot individuals believe that Government can do better for its citizens. They risk everything to make sure that laws are faithfully executed as they were intended and let Congress know when something is not working and needs fixing. Some of the most important reforms to our laws have come from whistleblowers, be it reforming our national security and law enforcement coordination following the tragic events of 9/11, or ensuring we have clean water to drink.

Given Candidate Obama's promise to not use signing statements to circumvent the legislative intent of Congress and his pledge to support whistleblowers, I was shocked to read the signing statement he issued on the Omnibus apprropriations bill that was signed into law on March 11. Not only did President Obama's action run contrary to his promise not to use signing statements to circumvent the intent of Congress, he also appears to have broken his promise to strengthen whistleblower laws by singling out an important whistleblower protection provision that Congres has included in every appropriations bill for the last decade.

Sections 714(1) and (2) of the omnibus bill contains an appropriations rider that states that no appropriation shall be available to pay the salary of any officer or employee of the Federal Government:

Attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress.

This rider was first included in appropriations bills in 1997 and has been included in appropriations bills since. It is a strong signal to all agencies that efforts to block federal employees from coming to Congress won't be tolerated.

However, the applicability of this rider is now in question given the signing statement issued by President Obama. His signing statement, in pertinent part, stated that this provision does not:

detract from [his] authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress.

This statement is shocking. It acknowledges that President Obama envisions a scenario where he would order a Cabinet Secretary to supervise, control, and correct statements made by employees to Congress.

Worse yet, the signing statement goes further to add that this authority would be used when employee communications would be ``unlawful or would reveal information that is properly privileged or otherwise confidential.''

I want to emphasize that word ``confidential,'' because you will hear about that in just a minute.

While other Presidents have objected to this appropriations rider in the past, President Obama's signing statement is even more problematic than those because it states that he has the authority to not only restrict privileged material, but also ``confidential'' information.

By failing to define ``confidential,'' President Obama has given a blank check to executive branch agencies to block communications with Congress related to an undefined, broad category of information.

Understand, it is a constitutional power and responsibility of this Congress to oversee, as part of our checks and balances of our Constitution, the agencies of Government to make sure laws are faithfully executed, as the Constitution requires, and as money is spent according to Congress.

Even the New York Times noted President Obama's signing statement includes ``one somewhat unclear objection'' that ``could be read as bumping up against the rights of executive branch whistle-blowers.'' Because, in our constitutional responsibility, we have to rely upon people in the executive branch to tell us when the job isn't being done according to the Constitution or according to law.

So I want to go further than what the New York Times said and say: It does
more than bump up against the rights of whistleblowers. It, in fact, is going to be a chill. It will chill executive branch employees from sharing information with Congress in our congressional obligation of oversight.

It could also be construed to be an attempt to limit Members of Congress from conducting this constitutional duty. I wrote to President Obama last Friday raising my concerns with his signing statement, and, most importantly, the chilling effect that it will have on whistleblower communication with Congress.

Today, I have not received a response. However, I read in the New York Times on March 16 that an unnamed administration official stated that President Obama is ``committed to whistleblower protections,'' and that the administration ``had no intention of going further than did Presidents Bill Clinton and George Bush in signing statements concerning similar provisions.''

Then, what is that word ``confidential'' doing in there? However, that same official did not provide any detail on that additional term ``confidential.'' I would like President Obama to answer my letter soon and clarify exactly what he meant in this signing statement. Absent a more detailed response from President Obama, I cannot see how his signing statement can be reconciled with the pledges and promises made by Candidate Obama, nor can I reconcile the criticism issued by Candidate Obama about President Bush's use of signing statements with the statements made by that unnamed administration source in the New York Times.

The unnamed source said President Obama ``had no intention of going further than did President Clinton or George Bush in signing statements.'' Candidate Obama stated he would not use signing statements in a manner similar to President Bush to circumvent the will of Congress. Now a member of the administration is telling the New York Times that President Obama means to do exactly the same thing as President Bush in issuing signing statements.

It seems to me, if this is the case, Candidate Obama would have a problem with President Obama's use of signing statements to underline the intent of this appropriations rider on whistleblowers.

Now, a number of my colleagues were quick to object to signing statements issued by President Bush but somehow have so far remained silent regarding President Obama's use of signing statements. Well, to those who had concerns in the past, I encourage you to take a close look at this signing statement and the potential harm it will cause for Members of Congress doing our constitutional responsibility of oversight to see that the laws are faithfully executed.

Those who may believe my acts are motivated by partisan politics, I want you to look at my record and see that I have repeatedly objected to signing statements that hindered the rights of whistleblowers. Just one example: I objected to a signing statement issued by President Bush back in 2002 that restricted the application of whistleblower protection provisions included in Sarbanes-Oxley.

I also, as another example, objected when a signing statement was issued by President Bush impacting specific reforms contained in the Inspector General Reform Act of 2008.

In closing, I call upon President Obama to revisit the March 11 signing statement and implement sections 714(1) and (2) in a manner consistent with the spirit and intent of this legislation.

As a former Senator, he must recognize the good that whistleblowers do by speaking out and by shedding light on fraud, waste, and abuse in Government agencies and programs.

Candidate Obama supported whistleblowers, but based upon his recent signing statements, these campaign promises now ring hollow. I hope I have interpreted him wrongly and will give him an opportunity to set the record right because I hope he comes out the same way he did in the campaign: strictly in support of whistleblowers, who are an essential element of the process of our checks and balances of government as Congress does its constitutional job of oversight.

We do not know where all of the skeletons are in the closet. We do not know all of the abuses of law. We do not know of all of the fraudulent things that are going on in government. We need that information from whistleblowers, and the best evidence I can give you of that is the $22 billion that has been brought back into the Federal Treasury since I got the False Claims Act of 1986 passed.

Most of that information would not have been available without the information from whistleblowers.

I yield the floor, and I suggest the absence of a quorum.

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