< The Conclusion of the Blow the Whistle Project


Friday, April 01, 2011

BOB GARFIELD: From WNYC in New York, this is On the Media. I'm Bob Garfield.

BROOKE GLADSTONE: And I'm Brooke Gladstone. This hour, pretty much by accident, turns out to be about speech. It’s not comprehensive, it’s more or less anecdotal. And it starts with the conclusion of our first crowd-sourcing project, called Blow the Whistle. If you’re a regular listener, you may have heard us talk about this before. On December 22nd, in the face of seemingly unanimous bipartisan support in both Houses, the Whistleblower Protection Enhancement Act was killed in the final moments of the last legislative session, when a mystery senator placed what is called a secret hold on the bill. Since January 7th, On the Media and the Government Accountability Project have been asking you, our listeners, to call your senators and ask them, on the record, if they had placed the secret hold. We have since received hundreds of your emails, helping us narrow the field of potential senators to just three, all of whom have repeatedly refused to comment. We care about this for two reasons, first, because the media’s ability to report on the government is contingent on governmental transparency and accountability, which the Whistleblower Protection Enhancement Act would foster. And second, because the irony of killing a pro-transparency bill with one of the Senate’s most opaque, anti-democratic devices was just too much for us to take. Tom Devine, legal director of the Government Accountability Project, has been our partner since our project started, and he will now help us end it. But first we asked him for a quick refresher. Just how does the secret hold work?

TOM DEVINE: A secret hold allows a senator – it doesn't exist in the House of Representatives – to paralyze any legislative action without actually voting against legislation or revealing his or her identity. It can be just because they want to do something constructive, like find enough time to read the bill before they vote on it. But in other cases it’s a way to sabotage legislation that’s too popular to do it openly.

BROOKE GLADSTONE: On January 27th, the Senate voted overwhelmingly to pass a resolution to reform the secret hold process, but the mainstream media have suggested that this means the secret hold is dead, and it’s very much alive, right?

TOM DEVINE: The ban doesn't kick in until 48 hours have passed. So in scenarios like the Whistleblower Protection Law, where the politicians put something off until the very last second, they can still kill the legislation without formally opposing it or even identifying themselves. It’s kind of like being saved by the bell.

BROOKE GLADSTONE: Why would a senator that had ostensibly passed the Whistleblower Protection Enhancement Act the first time it was in the Senate place a hold on it the second time around? It was only a very small change, and one that apparently would be more agreeable to Republicans. And the Republican cloakroom told [LAUGHS] you that it was a Republican that had put a secret hold on the bill. So why?

TOM DEVINE: They did it because they were requested by House leadership, which didn't have the political backbone to come out and oppose this taxpayer reform.

BROOKE GLADSTONE: How do you know, Tom, that the Senate hold was placed on the bill at the request of House leadership?

TOM DEVINE: So many congressional offices told us that was the facts of life behind the public posture.

BROOKE GLADSTONE: Congressional staffers told you this was the case, and it was repeated several times to you.

TOM DEVINE: It’s been repeated so many times that it’s almost conventional wisdom.

BROOKE GLADSTONE: What the Government Accountability Project does is try to represent the interests of whistleblowers who have suffered retaliation from the government agency for which they've worked. Give me an example of one of your clients.

TOM DEVINE: Probably the best poster child in recent experience is a gentleman named [REDACTED]*.  [REDACTED]* was a senior clinician at HHS for the Medicare program. He was protesting that in response to President Obama’s mandate that we cut the error rate by 50 percent over the next two years for improper Medicare payments, that HHS had responded by eliminating all the rules that we would catch those improper payments for, and this could mask 20 billion dollars in wasted government spending. He was protesting how patients are being held liable for denials of reimbursements due to the administrative errors of insurance companies and hospitals. And HHS is firing him for being disloyal to the agency mission.

BROOKE GLADSTONE: What would have happened if there had been an effective Whistleblower Protection Enhancement Act?

TOM DEVINE: [REDACTED]* could take the dispute about whose mission he’s serving to a jury trial in District Court and let the citizens of our country decide if he was betraying his duties to our country.

BROOKE GLADSTONE: Okay, as I mentioned in the intro, there are just three senators who have refused to comment. That’s James Risch of Idaho, Jon Kyl of Arizona and Jeff Sessions of Alabama. You've pretty much eliminated Risch, right?

TOM DEVINE: His staff has said they didn't have any objections to the provisions of the legislation last year. They don't this year, unless it changes. And they hadn't worked with the Senate leadership on it. So they're just really not a fair suspect.

BROOKE GLADSTONE: And that leaves Kyl of Arizona and Sessions of Alabama. Sessions has placed a secret hold on whistleblower protection legislation in the past, right?

TOM DEVINE: That’s correct, and so has Senator Kyl. They've almost been a tag team blocking Senate votes on this reform.

BROOKE GLADSTONE: Mm-hmm. Kyl has basically said that the Senate didn't have time to review the House changes and reconcile the differences between the two bills. Is that a fair statement?

TOM DEVINE: It’s a little bit disingenuous. Every word in the legislation that came back from the House had previously been approved by unanimous consent in the Senate. There are just a few items missing. And no Senate office has said, we blocked this reform because it wasn't strong enough.

BROOKE GLADSTONE: It was actually a weaker bill when it went back to the Senate.

TOM DEVINE: Unfortunately, from our perspective, that was the case.

BROOKE GLADSTONE: Tom, are you pushing for the reintroduction of a Whistleblower Protection Enhancement Act in this legislative session?

TOM DEVINE: With all our hearts and all our energy. And it should be introduced in the Senate very shortly, verbatim, the same as passed last year before the secret hold. We've also been briefing the new leadership of the House committee that handles this, under Chairman Darrell Issa, on the provisions, and they've been very conscientious, tough students who seem to be getting it. And we're optimistic.

BROOKE GLADSTONE: So, at the end of the day, we've got these three remaining senators, probably just two, neither of whom will admit responsibility. It might feel like a bit of an anticlimax to some of our listeners. What did we accomplish?

TOM DEVINE: You folks couldn't have done more as super-good citizens. And [BROOKE LAUGHS] it’s because there’s a spotlight on this that they'll be under a political imperative to do what they say they stand for. What we have been reassured is that a secret hold won't happen again on the Whistleblower Protection Enhancement Act, even by offices that won't tell us what happened last Congress. And I don't think that could have occurred if there weren't programs such as On the Media and the other journalists who have been on the job, when the politicians weren't.

BROOKE GLADSTONE: Tom, thank you very much.

TOM DEVINE: Thank you.

BROOKE GLADSTONE: Tom Devine is legal director of the Government Accountability Project. Susan Schibler was one of hundreds of listeners that helped us with the Blow the Whistle project. It was thanks largely to Schibler’s several weeks of steady contact with the office of Ohio Democrat Sherrod Brown that we managed to get his staff to confirm he wasn't responsible. Susan, welcome to the show.

SUSAN SCHIBLER: Hi, happy to be here.

BROOKE GLADSTONE: So tell me why this project was important to you.

SUSAN SCHIBLER: I have been a longtime supporter of whistleblowers. A very close friend of mine was fired for being a whistleblower. And I've been a supporter of the Government Accountability Project since the early 1990s.

BROOKE GLADSTONE: And you also worked at one time as a Senate aide to Ohio Senator John Glenn. Did that figure into your interest in this business?

SUSAN SCHIBLER: I don't know if it was an interest into the business but it certainly gave me some insight into what’s going on in a Senate office when I'm trying to contact them about my issue. I realize that they're getting a lot of calls from a lot of people, and I think that probably encouraged me to just keep going, that there’s going to be a way to get the response that I need.

BROOKE GLADSTONE: So let's talk about your process. You started with a couple of emails, got boilerplate responses. So then you called the Senator’s Washington office and were repelled over and over again by [LAUGHS] essentially the receptionist. So then you had the brilliant idea to call his Ohio office.

SUSAN SCHIBLER: Right. I decided to try and call the Ohio headquarters office in Cleveland and was able to immediately talk to a staff assistant and have kind of a back and forth conversation as to why it’s not acceptable for Sherrod Brown not to respond to the question of the secret hold. In doing that, I pointed out about the results being posed on the Blow the Whistle website, and I think by also emailing him that link to show that – I think at that time there was maybe 49 senators who had already given us a response, and I could say that there’s 49 offices that have not had a problem responding to this question, and it doesn't look good for Sherrod Brown not to answer the question. It got the staff assistant to realize it’s not just me calling or a handful of people calling, that once he connected with the website it’s like well, there’s unlimited eyes looking at this and we don't look good. And I believe it was in the same day that I got an email back from that staff assistant and then eventually a phone call from the legislative director confirming that the senator did not place the secret hold.

BROOKE GLADSTONE: So what did you think of the exercise, in general? Was it worth it?

SUSAN SCHIBLER: It was very satisfying, to finally get someone’s attention in the Senate office. It felt good to be a part of a larger community trying to get these answers from all the senators across the country. It kept the issue in the news. I think it was extremely rewarding. I have to say, though, that I believe a lot of people would be discouraged not getting an answer on the first phone call or just getting the formatted response that really doesn't answer the question in an email. And only because I'm recently retired and have the time to make these calls throughout the day I was able to stay on it.

BROOKE GLADSTONE: Susan, thank you so much.

SUSAN SCHIBLER: My pleasure.

BROOKE GLADSTONE: Susan Schibler is an OTM listener and secret hold hunter.


BOB GARFIELD: Next up in this hour on speech, how a crooked cop got to scare an intrepid rural reporter into silence. And Wisconsin politicos file FOIA requests to get at the emails of an inconvenient professor.

BROOKE GLADSTONE: This is On the Media.

*Name redacted from transcript because person in question never wished to be identified on the air. Audio remains unexpurgated.