President Obama’s Whistleblower Legacy

Donald Trump is about to be sworn in as President of the United States and a new administration will commence on January 20th.  So it’s an appropriate time to review the progress and setbacks for whistleblower rights that took place under President Barack Obama. It isn’t feasible to cover everything that went on during the last eight years in one blog post, or even several posts.  However, we will do our best in this multi-part blog series to summarize the high points and low points of whistleblower rights in the Obama era.

This is the first of a multi-part blog series about President Obama’s legacy on whistleblower rights that will be posted periodically between now and January 20th.  In part two, we will review where whistleblower rights stood in 2009, and subsequent parts will examine the efforts to reform and improve whistleblower laws affecting corporate and private industry employees as well as federal government employees and government contractors.

Overall, when President Obama departs office he will leave behind a mixed legacy on whistleblower rights.

There were several remarkable legislative victories for whistleblowers in the Obama years, such as expanding whistleblower rights for corporate employees where no rights had existed before.  Not only did Congress enact and President Obama sign laws fixing the shortcomings of whistleblower rights under the Sarbanes Oxley Act retaliation provisions and the False Claims Act’s qui tam provisions, entirely new rights were enacted to combat corporate fraud in the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act.  Some of these new whistleblower laws created monetary awards (modeled after the False Claims Act qui tam law) to incentivize whistleblowers in corporate America to disclose fraud and wrongdoing to the Securities and Exchange Commission and the Commodity Futures Trading Commission.  The SEC whistleblower award law that was enacted in 2010 has begun to dramatically improve the detection of corporate fraud and the current SEC has embraced whistleblowers as an important tool to combat securities violations. There were also important reforms enacted to protect corporate sector employees from whistleblower retaliation enacted under the Dodd-Frank Act, significantly enhancing whistleblower rights in all publicly traded companies.

But there were also major disappointments and some notable broken promises.  Among the major setbacks was the failure to extend full due process whistleblower rights (i.e., access to district court jury trials) for all federal employees (including FBI and intelligence agency whistleblowers).  That failure alone was memorable not only because of the promise made in 2008 by candidate Obama to support this long overdue whistleblower reform for all government employees.  It was also tremendously disappointing because there was bipartisan support in Congress between 2007-2010 to enact it.  In addition, we can’t ignore what has become known as Obama’s “war on whistleblowers” and the lasting negative impact that has had on government oversight, in general, and on intelligence agency employees, in particular.

Finally, we will explore where whistleblower rights stand during the transition from Obama to Trump and what we might expect to see happen in the next few years.  Will whistleblower rights be weaker, or stronger, or remain about the same, under President Trump?  There could be some surprising opportunities to support whistleblower rights and break the recent partisan cycle during the Trump years.

Stay tuned for Part Two, discussing where whistleblower rights stood when President Obama took office eight years ago.

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Follow David Colapinto on Twitter: @dcolapinto