Thanks to a lobbying effort from the US Chamber of Commerce, New York Rep. Michael Grimm's attempt to eviscerate hard-fought whistleblower reforms included in the Dodd-Frank Act is gaining steam. This news should be seriously troubling to anyone hoping to stop wrongdoing on Wall Street – the kind that led to the 2008 financial meltdown.
Grimm introduced the Whistleblower Improvement Act of 2011 (H.R. 2483) in July, but despite its deceptive name, this bill does absolutely nothing to improve whistleblower protections. It's easy to confuse Grimm's bill with the separate Whistleblower Protection Enhancement Act, which deserves full Congressional support. Grimm's bill, in contrast, guts the whistleblower provisions included in the Dodd-Frank financial reform legislation and puts whistleblowers at grave risk.
These provisions are in the Dodd-Frank Act for a reason: Congress recognized that whistleblowers play a crucial role in exposing corporate wrongdoing, but may not come forward because they fear retaliation and have no incentive.
The idea behind the Dodd-Frank whistleblower program was to create protections in the spirit of the highly effective False Claims Act. The new protections aim to deter companies from retaliating against whistleblowers and provide resources and incentives for potential lamplighters, which would, in turn, increase the number of reports to the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC). Ultimately, this will help stop corporate fraud, waste, abuse – and maybe even prevent the next Bernie Madoff.
But Grimm's bill would require a whistleblower to first report information relating to misconduct internally to his or her employer before going to a regulatory agency. This gives law-breaking companies plenty of time to dodge law enforcement and intimidate whistleblowers from moving forward. Most law-abiding companies can expect whistleblowers to act internally first. This provision only serves the wrongdoers.
H.R. 2483 doesn't stop there – it also legalizes retaliation against whistleblowers whenever a company's employment agreements, policies or manuals bar employees from communicating with the government. This basically gives companies the freedom to retaliate against whistleblowers in whatever way they see fit. Retaliation against whistleblowers can take many forms, including workload increase, demotion, suspension, termination and even physical harm.
Finally, the bill delivers a knock-out punch by removing incentives and rewards for would-be whistleblowers. It does this by eliminating a minimum award requirement and leaving the amount up to the discretion of the SEC or CFTC.
Whistleblowers often put their jobs on the line to serve the public interest. The Dodd-Frank Act rightfully acknowledges this by ensuring a minimum award amount of 10 percent for tips that lead to successful enforcement actions with sanctions of $1 million or more. Without this 10 percent minimum, whistleblowers will have far less of an incentive to sacrifice their careers and reputations to deliver the truth.
Given these devastating provisions, it seems unbelievable that in December, H.R. 2483 passed through the House Subcommittee on Capital Markets and Government Sponsored Enterprises and could be considered at any time by the full House Financial Services Committee. But that's where a lobbying effort by the US Chamber of Commerce comes in.
As Government Executive reported last month, the Chamber is engaging in a “shoe-leather lobbying campaign,” partnering with organizations like the Retail Industry Leaders Association and corporations like AT&T and UPS to explain to SEC officials the so-called “problems with current whistleblower rules.”
For the record, the US Chamber of Commerce is not the local organization that stands up for small businesses in your hometown. The US Chamber is a federation that strongly lobbies for the interests of Wall Street and other giant multinational corporations, often taking stances that might surprise or even offend members of your local chamber. As the Project On Government Oversight has pointed out in the past, the US Chamber has tried to give the SEC the ability to hide information on wrongdoing, and has vehemently tried to undermine the Foreign Corrupt Practices Act, which makes it illegal for US companies to bribe foreign officials.
In its latest effort to lobby for the Grimm bill, the Chamber isn't looking out for taxpayer interests – it's looking out for the interests of corporations – the law-breaking ones. So, what are the supposed “problems” with the current whistleblower rules that the Chamber is explaining? Well, according to Representative Grimm, H.R. 2483 ensures that “someone guilty of wrongdoing who later becomes a whistleblower cannot benefit from his or her own malfeasants [sic].” Representative Grimm also claims that the Dodd-Frank act leads to a “floodgate” of “frivolous claims.”
See the trend here? The thinking behind the bill is to put blame and suspicion on whistleblowers – not the companies that are actually committing fraud. Unlike H.R. 2483, the whistleblower provisions included in the Dodd-Frank Act were thoughtfully crafted, and the SEC and CFTC invested significant time and resources in creating them. It is far too early to determine whether the whistleblower programs need any modification – let alone the kind of sweeping overhaul proposed in H.R. 2483.
The SEC recently reported that it received 334 whistleblower tips on all kinds of financial issues between August 12 and September 30. If Representative Grimm and the Chamber of Commerce have their say – the savings that could come out of these tips will never see the light of day.
Congress should wait to see if the robust new whistleblower program is working before tinkering with it or making the drastic changes proposed by Grimm. Incidentally, Congress will have at least one review, mandated by Dodd-Frank, conducted by the SEC Office of Inspector General to consider before taking action.
Whistleblowers risk their livelihoods to report wrongdoing and save taxpayers billions of dollars. We can't let Representative Grimm and Wall Street lobbyists get away with undermining whistleblower protections and removing accountability for unlawful companies.