Credit PHOTOGRAPH BY PETE SOUZA / THE WHITE HOUSE
Back in 2008, Senator Barack Obama promised that, if elected, he would run the most transparent Administration in history and would champion the cause of whistle-blowers. “Such acts of courage and patriotism . . . should be encouraged rather than stifled,” Obama said of whistle-blowers during his campaign.
Eight years later, these words ring hollow to admirers of dissenters such as Edward Snowden and Thomas Drake, two of eight national-security “leakers” who have been charged with violating the 1917 Espionage Act during Obama’s Presidency. His Justice Department has prosecuted more such cases against whistle-blowers than all previous Administrations combined, setting a precedent that some fear Donald Trump will invoke—and drastically build upon—to further muzzle dissent.
This is a legitimate concern. The zealous prosecution of national-security whistle-blowers is a stain on Obama’s legacy. (After the case against Drake collapsed, in 2011, a federal judge chastised the Justice Department for putting him through “four years of hell,” describing its conduct as “unconscionable.”) But it is not the entire story. Outside of the national-security arena, Obama’s time in office has not been a calamitous period for whistle-blowers. Indeed, in the view of Tom Devine, the legal director of the Government Accountability Project, an organization based in Washington, D.C., that advocates for whistle-blowers, the past eight years have been closer to a “golden age,” an era of enlightened reform that has gone largely unnoticed and that Trump’s election may soon bring to a precipitous halt.
Until recently, employees in the business and financial sectors who dared to expose misconduct were routinely subjected to swift retaliation and given little recourse to defend themselves. In 2002, in the wake of accounting scandals at companies such as Enron and WorldCom, Congress passed the Sarbanes-Oxley Act, which granted corporate whistle-blowers the right to sue their employers if subjected to unwarranted reprisals. The law was hailed as a watershed achievement. But, in the years that followed, Sarbanes-Oxley proved largely ineffective, not least because judges appointed to key administrative positions by President George W. Bush interpreted it narrowly, dismissing hundreds of cases on minor technicalities and ruling against the overwhelming majority of employees who submitted grievances. Of more than a thousand complaints filed by whistle-blowers between 2002 and 2008, the government ruled in their favor just seventeen times, a rate of 1.3 per cent. This approach had consequences: prior to the 2008 financial collapse, plenty of whistle-blowers at companies like Countrywide Financial tried to expose abusive lending practices and fraud. Few were protected from retaliation, enabling the misconduct that paved the way for the financial meltdown to go unchecked.
Under Obama, protecting corporate whistle-blowers, at least, was finally made a priority, both within the Department of Labor and at the agency’s Administrative Review Board, which issues final decisions in Sarbanes-Oxley complaints. Staffed with new members who supported whistle-blower rights, the A.R.B. ruled in favor of employees in more than a third of the cases that came before it during a six-month period in 2010. Blowing the whistle in the corporate and financial world is still extremely risky. (And, as the recent scandal at Wells Fargo illustrates, fraud in these sectors hardly went away.) But in combination with other new laws—most notably, the Dodd-Frank Act, which created an Office of the Whistleblower within the Securities and Exchange Commission and offered employees financial rewards for exposing fraud—the incentives for corporate whistle-blowers to come forward were significantly enhanced.
Dodd-Frank was not an exception. All of the pivotal legislative measures enacted during Obama’s Presidency, from the economic-stimulus bill to health-care reform, contained provisions that strengthened whistle-blower protections. Obama also staffed agencies such as the Merit Systems Protection Board, which fields complaints from federal employees who have been subjected to whistle-blower reprisals, with leaders who took their grievances seriously. This may sound mundane—a matter of simple bureaucratic housekeeping—but the impact is anything but trivial. Indeed, one of the conclusions that scholars like Richard Moberly, a professor at the University of Nebraska College of Law, have drawn from their studies of laws such as Sarbanes-Oxley is that who implements these measures is no less important than what the measures formally state. “When it comes to whistle-blower litigation, the decision-maker really matters,” Moberly told me recently. “Obama put people in charge who made the available protections more robust.”
What kind of appointees will President-elect Trump place in agencies like the Merit Systems Protection Board in the years to come? Trump campaigned as an outsider promising to root out corruption, leading some whistle-blowers at agencies such as the Department of Veterans Affairs to express hope, according to Devine, that he will dismiss unscrupulous bureaucrats who have retaliated against them for reporting misconduct, including prolonged waiting lists for veterans in dire need of psychiatric care. Since winning the election, however, Trump has blithely dismissed concerns about the potential conflicts of interest raised by his own business dealings. More ominously, he has evinced a startling disregard for the First Amendment and a chilling intolerance for criticism and dissent. And dissent is what whistle-blowers engage in when they try to expose corruption and wrongdoing.
An astute leader might recognize the benefits of exercising tolerance on this score. As Cass Sunstein points out in his book “Why Societies Need Dissent,” both nations and organizations are more likely to flourish when they give individuals space to air oppositional views that can bring unwelcome information to light. To no small extent, whistle-blower-protection laws safeguard society no less than individual dissenters who break ranks, potentially preventing disastrous social blunders from taking place. It is difficult to imagine an incoming President who can scarcely tolerate a roast on “Saturday Night Live” appreciating such a concept, particularly if the information that a whistle-blower has divulged reflects negatively on him. Unfortunately, Trump will soon have a great deal of influence over how vigorously protections for whistle-blowers are enforced, at a time when their voices may be more necessary and important than ever.