Memorandum of Disapproval on a Bill Concerning Whistleblower Protection

I am withholding my approval of S. 508, the "Whistleblower Protection Act of 1988." I regret that the Congress did not present me with constitutional and effective legislation to expand the protections and procedural rights afforded to Federal employees who report fraud, waste, and abuse they discover in Federal programs.

Reporting of mismanagement and violations of the law, often called whistleblowing, contributes to efficient use of taxpayers' dollars and effective government. Such reporting is to be encouraged, and those who make the reports must be protected. At the same time, we must ensure that heads of departments and agencies can manage their personnel effectively. Enactment of S. 508 would have redesigned the whistleblower protection process so that employees who are not genuine whistleblowers could manipulate the process to their advantage simply to delay or avoid appropriate adverse personnel actions.

To ensure that Federal employees who report mismanagement are protected from reprisal, while ensuring that Federal personnel managers are not saddled with routinely defending appropriate decisions they make, I have directed the Attorney General, working with the Director of the Office of Management and Budget and the Director of the Office of Personnel Management, to prepare constitutional and effective whistleblower protection legislation for me to submit at the beginning of the next session of the Congress.

A major objection to S. 508 is its change of the factual showings required of employees in making their cases in whistleblower proceedings. Section 1221(e) of Title 5 of the United States Code, as contained in S. 508, would have interfered substantially with personnel management in Federal departments and agencies. Current law strikes a proper balance between the showings required of employees and agencies in making their cases before the Merit Systems Protection Board. Section 1221(e) would have removed the requirement that employees demonstrate in Merit Systems Protection Board proceedings that whistleblowing by the employee was a substantial factor in the agency's personnel action decision about which the employee complains. Moreover, that Section would have imposed the heavier burden upon the department or agency of proving by clear and convincing evidence—which is a much higher legal standard than proof by a preponderance of the evidence that applies in most civil matters in American courts—that the same decision would have occurred in the absence of any whistleblowing. The substantially reduced factual showing required of the employee and the substantially increased burden on agencies essentially rigs the Board's process against agency personnel managers in favor of employees. The interests of both employees and managers should be fully protected.

The provisions of S. 508 also raised serious constitutional concerns. Section 3 of the bill amends chapter 12 in Title 5 of the United States Code substituting new Sections 1201 through 1222. Section 1211 creates an Office of Special Counsel and purports to insulate the Office from presidential supervision and to limit the power of the President to remove his subordinates from office. Section 1217 purports to prohibit review within the Executive branch of views of the Office of Special Counsel proposed to be transmitted in response to congressional committee requests.

Section 1212(d)(3)(A) of Title 5, as contained in the bill, purports to authorize the Special Counsel to obtain judicial review of most decisions of the Merit Systems Protection Board in proceedings to which the Special Counsel is a party. Implementation of this provision would place two Executive branch agencies before a Federal court to resolve a dispute between them. The litigation of intra-Executive branch disputes conflicts with the constitutional grant of the Executive power to the President, which includes the authority to supervise and resolve disputes between his subordinates. In addition, permitting the Executive branch to litigate against itself conflicts with constitutional limitations on the exercise of the judicial power of the United States to actual cases or controversies between parties with concretely adverse interests.

These provisions could not have been implemented to the extent that they are inconsistent with the President's constitutional authority and duty to faithfully execute the laws, supervise his subordinates in the Executive branch, and recommend such measures to the Congress as he judges necessary and expedient, and Article III requirements for the exercise of the judicial power.

RONALD REAGAN

The White House,

October 26, 1988.