Congressional hypocrisy is on full display. House proclamations of deep commitment to regular order, due process, rule of law, fairness, impartiality, truth, justice and the American way not only ring hollow. They are paired with methodical trashing of these same principles in a headlong rush to impeachment. One element of the montage stands out – congressional references to whistleblower protection.
Many think House Intelligence and Judiciary Committee violations of 200-year-old rules, constitutional principles, and patent unfairness of committee and House floor actions pushing a plainly partisan impeachment are signal outrages of our time. They may be right. Still, one offense stands out.
Unknown to many Americans, while Democratic House leaders continue to refuse public access to the White House whistleblower – even after reports of coordination between the whistleblower and Democratic staff, possible ties to a presidential candidate, and word that his lawyer called their mission a “coup” – there is a pointed outrage.
The whole idea of a whistleblower statute is to encourage government employees to report waste, fraud and abuse without risk of employer retaliation. The statute has long historical roots. It aims to assure no one is “above the law” – a phrase parroted ad nauseum by House Democrats.
Here is the cherry-on-top hypocrisy. Congress exempted themselves from the whistleblower law. They have done so at each subsequent amendment of that law. The Whistleblower Protection Act of 1989 has been amended repeatedly over 30 years, with parallel legislation introduced such as allowing federal employees to appeal judgements to a federal court – always with one gaping hole: Congress is not subject to the law.
While House Democrats claim holy right to protecting of a whistleblower whose name is not even acknowledged, who offered a collection of “hearsay” (not permitted by statute), describing wrongly a presidential request on public corruption as a “demand” (i.e. making a false allegation), and reportedly holds anti-Trump affiliations, they do not give congressional employees the right to report waste, fraud, abuse or criminality with “whistleblower” protection.
Incredibly, when Senator Chuck Grassley (R-IA) decided to right this wrong in 2017, offering a bill in the 115th Congress, the bill was read twice and snuffed out. Congress has not only omitted “whistleblower” protection for their employees; they have affirmatively exempted themselves from giving this protection to those able to rat on them. They have placed themselves – above the law.
Nor is this whistleblower exemption unique. By design, Congress is exempt from laws other parts of the US government must live by. To protect private affairs and missteps, no public record was kept of federal tax dollars used in paying legal settlements for sexual harassment. No public record exists for costs of luxurious international travel on military aircraft, enhanced with per diem payments, foreign entertainment, and hotels. No accounting is done of private medical care in the Capitol.
More specifically, Congress is exempt from the Freedom of Information Act (FOIA), intended to give Americans transparency. Congress is immune to investigatory subpoenas on safety and health probes, posting of worker rights, and prosecution for retaliating against employees who report safety and health hazards. They are exempted from training employees on workplace rights and legal remedies, record-keeping on workplace injuries and illnesses, and practices standard and enforceable elsewhere in the government.
They are even exempt from Privacy Act restrictions, pursuant to an artful exception for “either House of Congress … or any committee or subcommittee …” The exception allows Congress to get private information others cannot, even with the intent to release it, often by nameless leak.
At this moment in American history, the part that sticks in a craw is watching House Democrats pull that cloak of secrecy and high-minded talk around a pseudo-whistleblower with little credibility, while freely operating in an environment protected against whistleblowers – by having given themselves the exemption.
That does seem above the law, doesn’t it? If anyone working for Americans places themselves above the law – it would seem to be Congress. If anyone needs more objective oversight, greater transparency, thorough accountability, a raft of FOIA requests, and encouragement of abuse reporting by whistleblowers – it would seem to be Congress.
How do we make that happen? The answer is by electing those who share the time-honored view that Congress, like the rest of the government, works for the American people.
Right now, we are watching what happens when a chamber of Congress loses any sense of accountability. Congressional hypocrisy is on full display. To many, the spectacle is neither grounded in history nor legally defensible; if we could demand fairness, due process, impartiality, FOIA requests, or candor of a congressional whistleblower, we might sleep better. Maybe after November 2020 we will. Until then, these congressional exemptions rankle.