Blowing the Whistle on Whistleblower Protection: A Tale of Reform versus Power

Abstract

Congress is currently considering expanding whistleblower protection, which the President has vowed to veto. With every wave of scandals or with each new political movement, Congress seems to include whistleblower protection. Yet, this article shows that after nearly 150 years of piecemeal evolution, whistleblowing remains fraught with risk. The protections extended to whistleblowers are a porous net rather than a secure blanket. Indeed, one should only enter these dangerous waters with the advice of counsel. The recent extension by Congress of whistleblower protection to corporate and securities insiders in the Sarbanes-Oxley Act of 2002 fails to change this reality. This article articulates a solution to the problems of whistleblower protection: an omnibus statute that could cover the gaps in the current net of protection. This article further shows how an omnibus statute can address the underlying political dynamics that are generally hostile to whistleblower protection: such a statute would be far more difficult to undermine via political stealth and could therefore prove more resistant to special interest influence by exploiting general political support for whistleblower protections. As such, this article suggests that the structure of a law can have a profound influence on its susceptibility to special interest influence.

Keywords: whistleblowers, whistleblower protection, exercise of power, Sarbanes-Oxley Act of 2002, anti-retaliation laws, Enron, employer retaliation