On January 3rd, 2021, the 117th Congress commenced. As is tradition, it began by passing rules that all members and staff must abide by. This year, the House rules for the new session, contained in House Res. 8, included provisions concerning whistleblowers.
In response to the actions of some members in the 116th Congress to retaliate against individuals who filed whistleblower complaints alleging abuse, fraud and mismanagement by the Trump Administration, Res. 8 codifies the long-held principle of protecting the disclosure of the identity and information relating to a whistleblower.
Specifically, the resolution, which passed on the second day of the new session, adds two new clauses to the House’s Code of Official Conduct to protect whistleblowers by:
- Preventing a Member, officer, or employee of the House from acting to prevent an individual or retaliate against an individual for providing truthful information to Congress or any law enforcement official. (Section 2(y), New Clause 20, Rule XXIII); and
- Prohibiting a Member, officer, or employee of the House from disclosing the identity of a federal whistleblower who is granted protections under federal whistleblower laws (Section 2(y), New Clause 21, Rule XXIII).
Any violation of the Code of Official Conduct by a House member or staff can result in consequences including expulsion, censure, reprimand and/or fine.
It is important to note that there are three exceptions to these new rules. The limitation on the public disclosure of a whistleblower’s identity or information by the House will not apply in cases where:
- The individual provides written consent to the disclosure;
- The individual has voluntarily publicly disclosed their identity; or,
- The disclosure is made by the chair of a committee after an affirmative two-thirds vote of the members of the committee that such a disclosure is in the public interest.
The third exception allowing the committee to disclose the identity and information of a federal whistleblower is potentially concerning. However, the Rule does mandate that any disclosures by the chair of a committee are subject to safeguards, including advance notice to the whistleblower that includes a written explanation of the reasons for the disclosure.
Additionally, H. Res. 8 codified the Office of the Whistleblower Ombud, building on the work of the 116th Congress. The House had previously established the Office of the Whistleblower Ombudsman to develop best practices for the intake of information by whistleblowers for House offices and provide training for staff. The new Rules package made this Office permanent and revised its name to the gender-neutral Office of the Whistleblower Ombud (Section 2(b)). There is no corresponding Office in the Senate.
H. Res. 8 is an important step in encouraging whistleblowers to come forward and demonstrates once again that protecting whistleblowers is an endeavor with widespread bipartisan support. The National Whistleblower Center welcomes this acknowledgment from the 117th Congress that whistleblowers who provide information of alleged wrongdoing are a valuable resource and should be protected.