In a brief filed on September 14, 2002, the Labor Department states that Congress has said the only disclosures protected by the new corporate whistleblower statute are those made to duly authorized congressional committees with ongoing investigations and that protections would not extend to disclosures made to individual members of Congress. The brief filed concerns whistleblower protections for U.S. attorneys under analogous federal statutes.
"The comments contained in this brief tell me the new corporate whistleblower protections are in trouble at the Labor Department, where they're supposed to be enforced," Grassley said. "The Solicitor's statement undermines the intent of Congress and doesn't even reflect the latest comments from the White House Counsel's office. If this is the way the Labor Department intends to enforce the new law, then most corporate whistleblowers won't be protected," Grassley said.
Grassley said the Labor Department brief would extend whistleblower protections only to corporate employees "who are lucky enough to find the one member of Congress out of 535 who happens to be the chairman of the appropriate committee who also just happens to already be conducting an investigation, even though the problem identified may not have come to light yet. That's just nonsense."
Grassley and Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, together sponsored the corporate whistleblower protections included in the Corporate and Auditing Accountability, Responsibility and Transparency Act of 2002. Their provisions made federal whistleblower protections available to employees of publicly traded companies for the first time ever. No such protections previously existed.
Immediately following enactment of the corporate responsibility legislation, public comments by administration officials about the terms of these whistleblower protections alarmed Grassley. He and Leahy began a dialogue with the White House Counsel's office to ensure the administration fully understood Congressional intent. The administration responded to their first letter dated July 31, 2002.
An August 1, 2002, letter from Alberto Gonzales says, "In your letter, you raised a number of concerns, including the possibility that the Act would be read to require ongoing investigations or that the disclosure relate to matters within the jurisdiction of a particular Congressional committee. However, the President's statement did not address those issues. Rather, the President's statement provides guidance to the executive branch in construing the provision only on a single, very narrow point: to the extent that Section 1514A(a)(1)(B) of Title 18 protects disclosures in an "investigation", that term will be construed solely by reference to the rules of the Congress. In other words, it is up to Congress to determine through its rules whether and how it will conduct investigations and obtain information. See U.S. Const. Art. I, Sec. 5. The new provision neither expands nor contracts Congressional investigative authority." The Counsel's office has not responded to a Grassley-Leahy follow-up letter also dated Aug. 1, 2002.
"The Labor Department obviously needs to go back to the drawing board. While the Solicitor cites the interpretive statement issued when the President signed the Sarbanes-Oxley Act, he failed to note to the court the plain language clarifying the President's statement provided in the Counsel's letter to myself and Sen. Leahy," Grassley said. "I hope Solicitor Scalia's statement in the brief is not considered the administration's final response to our concerns."
Grassley has long championed whistleblower protections. He co-authored the 1986 update of the False Claims Act with qui tam provisions. He also co-wrote the 1989 Whistleblower Protection Act. Over the last two decades, Grassley has protected numerous whistleblowers from various federal government agencies and government contractors.