Sunday, August 20, 2006

Government Employment and Whistleblowing

Capitol_1 Here's a New York Times editorial from yesterday arguing that in light of Garcetti v. Ceballos (the First Amendment public employee free speech case that limited protections to non-official capacity, public concern speech) that the Congress needs to act to provide additional whistleblowing protections for government employees (the emphasis appears to be on federal employees) who bring to public attention government fraud, waste, or illegal conduct.

A taste:

Appeals to court review under the 17-year-old Whistle-Blower Protection Act have proved fruitless, with the Supreme Court ruling in May that workers have no right to First Amendment protection when they warn lawmakers and taxpayers of government waste and folly. The ruling has thrown the issue back into the lap of Congress. Fortunately, there is enough anger emerging on both sides of the aisle to raise hopes for remedial legislation.

The Senate has unanimously approved an amendment to close loopholes and spell out whistle-blowers’ rights in more forceful detail for the courts. It is attached to a pending military bill, with proponents working for comparably tough legislation to be accepted by the House.

The best display of Congressional intent would be for lawmakers to not just reaffirm the 1989 law but to extend it to all the national security bureaucracy and to private contractors.

The Ceballos decision itself seemed to take comfort in the fact that Congress could provide additional whistleblower protection in the form of legislation, even in the absence of First Amendment protection.

And although I believe that Ceballos was an overly formalistic, wrongly-decided case, it would be nice to see some of the damage undone through a Congressional enactment.


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