The Senate acted quickly last week to fill a gap in whistleblower protection law in light of a recent Supreme Court ruling which may have weakened First Amendment protections for whistleblowers. The Senate passed the Federal Employee Protection of Disclosures Act (S.494), sponsored by Sens. Daniel Akaka (D-HI) and Susan Collins (R-ME), which would strengthen protections for federal government employees that expose government inadequacies. As reported in the last issue of The Watcher, in May the Supreme Court ruled in Garcetti v. Ceballos that public employees who report suspicions of corrupt or mismanagement in the course of their duties are not protected under the First Amendment. The Court held that, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." The Court's ruling compelled whistleblower advocates in the Senate to strengthen whistleblower protections. "The need to act now was heightened because of last month's Supreme Court decision that limits whistleblower protection under the First Amendment," explained a statement issued by Akaka after the amendment's passage. "It's unacceptable for the courts to add another deterrence to federal whistleblowing." The Whistleblower Protection Act of 1989 was intended to protect federal employees against reprisals for the exposure of government inadequacies. The Akaka-Collins Amendment modifies that law to make clear that all federal government employees are protected for "any" disclosure of government waste, fraud or abuse. The Federal Employee Protection of Disclosures Act, according to Akaka's statement, also:

• ends the sole jurisdiction over federal whistleblowers cases of the Federal Circuit Court of Appeals by permitting multi-circuit review for five years;
• protects whistleblowers whose security clearance revocation is based on retaliation;
• provides the Office of Special Counsel with the independent right to file amicus briefs in federal courts; and
• codifies and strengthens the anti-gag provision that has been included in appropriations language since 1988.

The bill fails, however, to cover employees of intelligence agencies, including the FBI, CIA, Defense Intelligence Agency, National Imagery and Mapping Agency, and National Security Agency. The Executive Branch Reform Act passed earlier this year out of the House Government Reform Committee would extend whistleblower protections to these employees. The Federal Employee Protection of Disclosures Act was accepted by unanimous consent as an amendment to the FY 2007 Defense Department reauthorization bill (S. 2766). The amendment was co-sponsored by Sens. Joseph Lieberman (D-CT), Charles Grassley (R-IA), Richard Durbin (D-IL) and Carl Levin (D-MI). The reauthorization bill was then passed by the Senate. Even though the House did not address whistleblower protections in its version of the defense department reauthorization bill, the issue will be taken up in the House-Senate conference.