Congress Should Pass Stronger Whistleblower Protections

Originally published in Law360

Less than two weeks after the U.S. Securities and Exchange Commission unanimously praised its Dodd-Frank Act whistleblower reward program, the first-ever national opinion poll on whistleblowers was publicly released. It was great news for whistleblowers and another blow to corporate fraudsters.

According to the poll, 81% of likely voters polled believe that Congress should prioritize enacting laws to protect corporate employees who report fraud. Voters not only wanted to see corporate whistleblowers protected, but over a quarter of them, 27%, stated that legislation should be an immediate priority for Congress.

Given pending legislation concerning COVID-19, and other issues widely supported by voters from all political parties, the fact that over a quarter of likely voters polled wanted immediate action enhancing corporate whistleblower laws is highly significant.

Whistleblowing has never been viewed as an election issue. The stereotypes that often degrade whistleblowers — snitch or disgruntled employee — have masked the change in public perception on this issue. Politicians would be wise to take note.

In fact, in response to another polling question, 44% of likely voters indicated that they would be more likely to vote for a candidate who supports stronger protections for corporate whistleblowers. Nearly half of all those polled view whistleblowing not only as a positive virtue but they also see it as a factor that could influence their vote.

The online newspaper, Whistleblower Network News, commissioned the poll. However, the agency that conducted the poll was the highly rated Marist poll.

The Marist poll is among only a handful of A+ rated polls. This honor was conferred by FiveThirtyEight, an independent organization that monitors national polling and rates polls with a score from A+ to F. Thus, the findings of Marist are an accurate depiction of where the American voter stands today. And today, that voter stands with whistleblowers.

Looking deeper into the Marist survey, it is clear that support for whistleblowers crosses party lines and demographics. For example, with a margin of error of only 3.4%, Marist determined that 88% of Democrats, 82% of Independents and 74% of Republicans polled believed that Congress should prioritize passing laws to protect corporate whistleblowers who expose fraud. Whistleblower protection is truly a bipartisan issue.

Additionally, all segments of the American people support these reforms. Many of the divisions seen in the voting public simply do not exist when it comes to endorsing stronger protections for whistleblowers.

Regardless of education, income or race, the American public is united on this question. Once again, the objective polling results of Marist confirm these results. On the issue of whether Congress should prioritize passing new corporate whistleblower laws, support transcended all demographics.

For example: 82% of college-educated adults supported the whistleblowers, while 83% of non-college educated adults also supported the whistleblowers. There was no material difference. Similar results were reported across the board:

• Residency: 82% of rural voters supported whistleblowers, compared to 84% of big- city residents.
• Location: 82% of Southern voters supported whistleblowers. The precise same percentage of voters, 82%, located in the Northeast supported the whistleblowers.
• Gender gap: There was almost no difference between genders when it comes to supporting whistleblowers: 83% of men supported the whistleblowers, compared to 82% of women.
• Race: Americans of all races overwhelmingly supported whistleblowers — white, 82%; Black, 79%; Latino, 89%.
• Wealth: Of those making under $50,000 per year, 84% supported whistleblowers, compared with 81% support from those making greater than $50,000.
• Age: Younger voters, under 45 years old, supported whistleblowers at the rate of 92%, while 75% of voters 45 and older stood with the whistleblowers.There is a clear consensus that whistleblowers need to be protected and supported. On the specific question as to whether or not Congress should enact stronger corporate whistleblower laws, the results outlined above are conclusive. This is good news for the bipartisan group of senators who are supporting the Whistleblower Programs Improvement Act, S. 2529.This law would prohibit retaliation against internal whistleblowers who raise concerns within corporate compliance programs under the Dodd-Frank Act. The bill also addresses the long delays experienced by whistleblowers in obtaining reward payments. It establishes a one- year deadline for adjudicating Dodd-Frank Act whistleblower award decisions.

  The Whistleblower Programs Improvement Act should also be improved to address some of the issues recently raised in the SEC whistleblower rulemaking proceedings. Specifically, there was considerable confusion (and opposition) to changes in the related action provision of the Dodd-Frank Act.

  That provision was designed to encourage whistleblowers who give information to the SEC to also cooperate with other federal law enforcement agencies when violations of the securities laws also implicate other federal infractions. The commission voted itself discretion to deny related action awards. This discretion can be abused. Strict legislative restraints are necessary to ensure that Congress’ intent to encourage whistleblowers to fully cooperate with all federal law enforcement agencies is protected.

  Similarly, the Improving Laundering Laws and Increasing Comprehensive Information Tracking of Criminal Activity in Shell Holdings, or ILLICIT CASH, Act, S. 2583, is a badly needed reform law targeting money laundering. Money laundering is often at the heart of illegal drug sales, terrorist financing, tax evasion and other criminal enterprises.

Like other areas of corporate fraud, money laundering is done in secret and is very hard to detect. The sponsors of the bill are proposing whistleblower protections that would cover the right to anonymously and confidentially file claims, obtain a reward and prohibit retaliation. These reforms are desperately needed.

Finally, Sen. Charles Grassley, R-Iowa, has announced that he will be introducing reforms to the qui tam provisions of the False Claims Act. The False Claims Act’s qui tam provisions are recognized as America’s most successful anti-fraud whistleblower law. Since the False Claims Act was amended in 1986, U.S. taxpayers have recovered over $62 billion from fraudsters. The law has been under attack for years from corporate interests that profit from sweetheart government contracts, including an unsuccessful attempt to find its qui tam provisions unconstitutional.

The False Claims Act is the most consequential anti-fraud law on the books for this pandemic. It covers fraud in the multi-trillion-dollar COVID-19 programs and federally funded medical treatments, including Medicare, Medicaid and private veteran health care programs. Most nursing homes are also covered under this law. Pursuant to its qui tam provisions, citizens can sue almost anyone fraudulently obtaining federal monies related to fighting the pandemic.

Thus, it is critical that Congress close loopholes in the False Claims Act. Three areas are being considered for reform. First, the reform legislation is expected to overturn judicial precedents that set a high bar on proving “materiality” in fraud cases. These precedents often let fraudsters profit from blatant violations of law or their contractual obligations.

Second, the U.S. Department of Justice has abused a technical procedure in the law that permits the government to have fraud cases dismissed, without any real due process for the whistleblower. Reforms will focus on this technical issue in the law and clarify that whistleblowers will have a right to a meaningful hearing before any case is dismissed. Finally, the anti-retaliation provisions need to be improved, especially to prevent whistleblowers from being blacklisted.

The reforms to the Dodd-Frank Act and the federal anti-money laundering bills already have bipartisan support and could be approved this term. Likewise, the issues that are undermining the False Claims Act are well documented, and given the trillions of dollars in COVID-19 spending, these reforms are urgently needed.

Prior to the publication of the Marist poll results, supporting whistleblower laws was viewed as good government reforms. Members of Congress would often support these laws, not because the voters demanded it, but because whistleblowers were recognized as essential partners in detecting fraud.

The Marist poll results change this equation. The overwhelming majority of Americans polled want to see their elected leaders enacting laws that improve whistleblower protections. The majority of likely voters polled see such laws as a priority for Congress. Voters from both political parties want to see immediate congressional action.

On top of this, 44% of likely voters polled will take into consideration how a politician votes on these issues. Whistleblower advocates will be well served by exposing members of Congress who block needed whistleblower reforms and praising those elected officials who stand with the whistleblowers. This is a game changer.