24 Feb Draining the Swamp*

Draining the Swamp

“Draining the swamp” refers to the practice of draining swampland to reduce alligator and mosquito populations …, in short, to eradicate man-eaters and blood-suckers.

But that’s not what “draining the swamp” refers to in 21^st Century America. Today, “the swamp” refers to Washington, D.C., where figurative blood-suckers swamp-dwellers – politicians and their supporters – are perceived as preying on average Americans. Because our nation’s capital was built on a swamp, politicians, the denizens of Washington, have come to be viewed by many members of the voting public as fetid swamp-dwellers …, especially those who have spent their careers involved in Washington politics, whether as elected officials or as their bureaucratic appointees. “Draining” it therefore has come to mean rooting out government wrongdoing and corruption and terminating the employment of those government workers who further any such wrongdoing or corruption. One misperception is that President Trump invented the slogan. Draining the swamp, including “draining the capitalist swamp,” however, has a long history as a political-call-to-arms. Trump adopted the catchphrase in his 2016 campaign and made it a goal of his Administration – in an October 2016 tweet, he wrote “I will Make Our Government Honest Again – believe me. But first, I’m going to #DrainTheSwamp in DC.”

What tools does the Trump Administration have to ferret out corruption? How can “the swamp-dwellers’” crimes and misbehaviors be uncovered? In short, how can dishonesty in government be rooted out and punished?

Corruption is endemic to human society …, and is not linked solely to politicians (though they have played a starring role throughout history) or to one political party or another. America has done an outstanding job in creating an ethic of honesty that includes the expectation of a law-abiding government. It has designed mechanisms to reinforce that ethic-of-honesty and fair-dealing. The Rule of Law championed by the United States provides Americans with a variety of mechanisms to fight and report misdeeds and to expect an appropriate outcome from doing so, and both the Federal and State governments provide comprehensive protections for those who report misdeeds in an effort to encourage such internal self-policing. Although the fight against government corruption most often begins with an investigation of a triggering event, such as the Watergate break-in, it also includes non-anonymous tips backed by credible evidence.

The Federal government – Congress and a long list of Presidents – has sought to encourage tippers, in the modern era through the Whistleblower Protection Act of 1989 (the “WPA”). The WPA has any number of counterparts in Federal law (including securities (SEC) and labor law (OSHA)), as well as in State and local law. The WPA protects those Federal government employees who report the possible existence of an activity constituting a violation of a law, rule or regulation, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety. The goal of the WPA, and of all whistleblower protection laws, is to incentivize grassroots reporting of wrongdoing. In the case of the WPA, the goal is for Federal employees to report any reasonable suspicion that government activities are not serving the best interests of America. A violation of the WPA occurs if a government official takes, or threatens to take, retaliatory action against an employee because the employee discloses information that he/she believes constitutes such “corruption.” An indispensable element of whistleblower protection laws, and of the WPA in particular, is to maintain the anonymity of the whistleblower.

Federal whistleblower rights were first protected by the Civil Service Reform Act of 1978, but were not viewed as adequate protection for Federal employees. Congress passed the WPA to “strengthen and improve protection for the rights of federal employees, to prevent reprisals, and to eliminate wrongdoing within the Government.” Although whistleblowing was already protected by Federal law, the WPA broadened and deepened its protections. Congress noted that the value of whistleblowing activity serves the public interest by reducing fraud and self-enrichment by government employees and officials and emphasized that government employees would be protected by the WPA from reprisals for whistleblowing behavior. The WPA empowered the Office of Special Counsel to enforce the law, specifically by investigating complaints of reprisals and determining penalties. A 1994 amendment extended its protections to employees of government corporations and the Veterans Administration, and later legislation provided similar safeguards for members of the military and the intelligence community.

The WPA specifies a series of steps to be followed in response to an allegation. First, a complaint is investigated for merit and, if found worthy, is referred to the Office of Special Counsel for further action. A 1999 Congressional report found that 20-30{29ea29b64b10057f61377b2c087cd5b7537a0cd24da4295a308b0bf589469f35} of complaints are referred to the Special Counsel, while the rest are closed – not all reports of wrongdoing are reliable or provable. Since the purpose of the WPA is to encourage the reporting of wrongdoing, the whistleblowers making the reports nevertheless are protected from reprisals. Of those referred for further action, about one-fourth result in favorable rulings for the complainant.

The term “whistleblower” originated in sports, where officials use a whistle to spotlight player violations/misdeeds. In the workplace, the term refers to an employee who reveals his/her employer’s misdeeds. Blowing the whistle on one’s employer, whether in the business world or the governmental one, is dangerous … and frequently becomes incredibly costly to the whistleblower, which is why the protections for whistleblowers are so important to the smooth functioning of a capitalist, democratic society. Wrongdoers naturally seek to avoid the negative publicity that results from whistleblowing and make every effort to suppress the facts and avoid prosecution. Wrongdoers are highly motivated for these reasons and others to take punitive action against whistleblowers, including by a desire for revenge. Employees have been threatened, harassed, disciplined, held up to ridicule and fired for revealing misdeeds, making the decision to blow the whistle extremely difficult and, in many cases, career- (and even life-) threatening.

As the largest bureaucracy in the country, the Federal government has its share of corrupt officials and wrongdoers. While the government as a whole benefits when improper behavior is revealed, government wrongdoers have an incentive to cover-up their actions and to punish those who reveal them …, and in doing so to dampen further investigation and reporting creating an atmosphere of reprisal and fear that discourages any further whistleblowing and provides ongoing protection for the corrupt.

As noted above, a prior Congressional study revealed that only a minority of whistleblower complaints are sufficiently persuasive to result in taking further action, and only one-quarter of those on which the Special Counsel takes action result in a favorable ruling. Nevertheless, even when a whistleblower complaint is deemed insufficient or misguided, the whistleblower is protected. The value of the WPA is in opening a necessary drainage channel for “the swamp.” Undercutting or eroding the WPA’s protections would serve only to encourage government corruption, create greater government opacity and reduce the ability to determine and ferret out wrongdoing.

Yet that’s precisely what has just occurred.

Senator Rand Paul made the decision to identify the Ukraine whistleblower by publicly outing him following the Senate’s vote exonerating President Trump from the House’s impeachment charge. Whether or not the naming of the whistleblower, without explicitly terminating his employment, violates Federal or State law is a question that the courts may be forced to address. The effect of that outing, however, is terribly problematic for the goal of fighting government corruption and “draining the swamp” … and for democracy. Senator Paul’s action makes it unlikely that future potential whistleblowers will blow any kind of whistle – for any reason – since their lives will be forever altered, quite negatively, as the Ukraine whistleblower’s has been. Similarly, it is exceedingly unlikely that witnesses will volunteer support for a whistleblower’s allegations if the outcome may include public ridicule and, even worse, termination of employment. That has been the consequence to witnesses Gordon Sundland and Alexander Vindman …, and President Trump’s suggestion that the intelligence community’s inspector general, Michael Atkinson, might also be fired has chilled the role of the Special Counsel as well. In the past, false testimony has been prosecuted as perjury, which has been the Rule of Law way to deal with accusations that lack factual support. Absent perjury, whistleblowers have had their identities protected and witnesses have not been subjected to reprisals. The outing of the Ukraine whistleblower and the firing of those whose testimony supported his complaint will not further the goal of “draining the swamp.”

Whistleblowers provide drainage channels to flush government corruption that otherwise has the potential to undermine American democracy. Unfortunately, recent events have made whistleblowing a four-letter word route that no well-intentioned, adequately-counseled government employee is likely to pursue.

Finally (from a good friend)

*┬® Copyright 2020 by William Natbony. All rights reserved.