July 16, 2008
Dear Conferees,
Last October, 42 citizen, consumer and good government organizations signed a letter urging the Senate to support whistleblower protection in S. 2045, the CPSC Reform Act of 2007. Despite intense industry opposition, the Senate respected this mandate. With bi-partisan agreement the Senate adopted a strong whistleblower provision for enforcement of the law’s stronger consumer protection standards.
There no longer are any credible objections to the Senate provision. To illustrate, last fall industry lobbyists insisted that protection was unnecessary, because there were no reported cases of retaliation. Reform proponents pointed out the obvious: that was largely unavoidable due to the absence of legal rights. Nonetheless, proponents presented a menu of cases from whistleblowers who filed suit even without rights. Among others, the examples included a quality control manager fired for challenging inferior materials in an infant stationery play center; a product designer fired for challenging light fixtures that flunked federal safety standards but were marketed without prior testing; a product engineer fired after challenging continued sales without corrective action of faulty home furnace ignition devices that already had caused a fire; and a wire company employee fired for reporting shipment of faulty wiring in smoke alarms. Similarly, industry lobbyists asserted a deluge of litigation would ensue, but the allegation had no credibility. It has been made for virtually every whistleblower shield enacted by Congress, and never has materialized to date in 36 preexisting whistleblower laws
After the attacks could not stand scrutiny, special interest opponents largely stopped making them, in public. We understand, however, that the pace of lobbying has intensified behind closed doors. It would be most unfortunate if this tactic worked. For one reason, the voters do not support it. A Democracy Corps survey of likely voters after the last election found whistleblower rights their second highest priority, chosen by 79%, only second to the related goal picked by 81% of ending illegal government spending.
That is understandable. Voters recognize that whistleblowers are the public’s eyes and ears. As illustrated above, whistleblowers have confirmed repeated instances of companies refusing to disclose the full extent of adverse internal tests results to the government, or to institute recalls despite test results that confirmed a high likelihood of fatal injuries.
Last week an anonymous whistleblower contacted the Union of Concerned Scientists and the Government Accountability Project to urge that the final CPSC legislation contain whistleblower protection. The employee’s experience is a microcosm of why that provision is, in the whistleblower’s words, “indispensable” for companies to take the new standards seriously for any products self-regulated through internal testing. Otherwise, the conflicts of interest are too severe and the certain costs too great to delay production at the stage when testing normally occurs.” That scenario is the rule, rather than the exception, for the 15,000 products covered by H.R. 4040/S 2045. GAP reports that the employee’s concerns are being distributed to conferee staff whose offices pledge to respect confidentiality even for a highly sanitized memorandum of concerns – the only conditions the employee would accept without rights.
The lesson to be learned is unavoidable. Even with greater resources, the CPSC cannot always enforce stronger safety standards unless employees have the legally-protected right to help enforce the law. In 2005 the House respected that principle by enacting “best practice” whistleblower rights in the Energy Policy Act. Last August, Congress proved it was serious about homeland security by passing best practice whistleblower rights for ground transportation employees. In January, Congress followed suit for defense contractors, despite the shrill objections from such powerful firms as Halliburton and Bechtel.
It would be unfortunate if Congress did not stand up to industry lobbyists on this bill who no longer can make their objections in public. America routinely depends on retail products that if defective could threaten our families many times every day. We urge you to protect those who are indispensable to enforce this law. It is unrealistic to expect that whistleblowers will defend the public if they can’t defend themselves.
Gil Mileikowsky, M.D.
Alliance for Patient Safety
Mary Alice Baish, Acting Washington Affairs Representative
American Association of Law Libraries
F. Patricia Callahan, president and general counsel
American Association of Small Property Owners
Nancy Talanian, Director
Bill of Rights Defense Committee
Charlie Cray, Director
Center for Corporate Policy
Merrill Goozner
Director, Integrity in Science
Center for Science in the Public Interest
Linda Lazarus, Director
Center to Advance Human Potential
Evelyn M. Hurwich, President and Chair
Circumpolar Conservation Union
John Judge
Coalition on Political Assassinations
9/11 Research Project
Matthew Fogg, President
Congress Against Racism & Corruption in Law Enforcement (CARCLE)
Ellen Bloom, Director of Federal Policy
Ami Gadhia, Policy Counsel
Consumers Union
Sue Udry, Director
Defending Dissent Foundation
Ben Smilowitz, Director
Disaster Accountability Project
Dr. Jim Murtagh
Doctors for Open Government
Gregory Hile
EnviroJustice
John Richard
Essential Information
George Anderson
Ethics in Government Group (EGG)
Steven Aftergood, Project Director
Federation of American Scientists
Marilyn Fitterman, Vice President
Feminists For Free Expression
Wenonah Hauter, Executive Director
Food and Water Watch
Conrad Martin, Executive Director
Fund for Constitutional Government
Gwen Marshall, co-Chairman
Georgians for Open Government
Tom Devine, Legal Director
Government Accountability Project
James C. Turner, Executive Director
HALT, Inc. — An Organization of Americans for Legal Reform
Tom Carpenter, Executive Director
Hanford Challenge
Helen Salisbury, M.D.
Health Integrity Project
Rich Carlson , Legal Counsel
Idaho Rural Council
Michael McCray, Esq., Co-Chair
International Association of Whistleblowers
Donald Soeken, President
Integrity International
Mory Atashkar, Vice President
Iranian American Democratic Association
Mark S. Zaid
James Madison Project
Nancy Cowles, Executive Director
Kids in Danger
Michael D. Ostrolenk, National Director
Liberty Coalition
James Landrith, Founder
The Multiracial Activist
Joan E. Bertin, Esq., Executive Director
National Coalition Against Censorship
Sally Greenberg, Executive Director
National Consumers League
Terisa E. Chaw, Executive Director
National Employment Lawyers Association
Paul Brown, Government Relations Manager
National Research Center for Women & Families
Steve Kohn, President
National Whistleblower Center
Amy Allina
National Women's Health Network
Ron Marshall, Chairman
The New Grady Coalition
Rick Engler, Director
New Jersey Work Environment Council
Marsha Coleman-Adebayo, Chair
No FEAR Coalition
Sean Moulton, Director, Federal Information Policy
OMB Watch
Patrice McDermott, Executive Director
OpenTheGovernment.org
Joe Carson, PE, Chair
OSC Watch Steering Committee
Judy Norsigian, Executive Director
Our Bodies Ourselves
Betsy Combier, President and Editor
Parentadvocates.org
Former Special Agent Darlene Fitzgerald
Patrick Henry Center
Ronald J Riley, President
Professional Inventor's Alliance
Danielle Brian, Executive Director
Project On Government Oversight
David Arkush, Director, Congress Watch
Public Citizen
Jeff Ruch, Executive Director
Public Employees for Environmental Responsibility
John W. Whitehead, president
The Rutherford Institute
Dr. Roland Chalifoux
The Semmelweis Society International (SSI)
Clint Brewer, President
Society of Professional Journalists
Kevin Kuritzky
The Student Health Integrity Project (SHIP)
Daphne Wysham, Co-Director
Sustainable Energy and Economy Network (SEEN)
Jeb White, Executive Director
Taxpayers Against Fraud
Ken Paff, National Organizer
Teamsters for a Democratic Union
Paul Taylor
Truckers Justice Center
Francesca Grifo, Ph.D., Director
Scientific Integrity Program
Union of Concerned Scientists
Michael J. Wilson, International Vice President and Director,
Legislative and Political Action Department
United Food & Commercial Workers International Union
Dane von Breichenruchardt, President
U.S. Bill of Rights Foundation
Mabel Dobbs, Chair
Livestock Committee
Western Organization of Resource Councils
Janet Chandler, Co-Founder
Whistleblower Mentoring Project
Linda Lewis, Director
Whistleblowers USA
Kim Witczak
WoodyMatters