26 April 2014

Soft Whistles

'Soft Whistleblowing' by Amanda C. Leiter in (2014) 48(1) Georgia Law Review 3-71 considers
the underappreciated role that agency insiders play in directing outside oversight of their employer agencies and, in turn, manipulating agency policy development. Specifically, the Article defines, documents, and evaluates the phenomenon of “soft whistleblowing” — an agency employee’s deliberate, unsanctioned, substantive, and instrumental disclosure of nonpublic information about issues of policy. This phenomenon is ubiquitous but has received no systematic attention in the academic literature.
As the Article demonstrates, agency employees regularly engage in soft whistleblowing to congressional staff, journalists, and agency watchdog groups, in an effort to bring outside pressure to bear on their employer agencies to shift policymaking direction. The phenomenon results in a high-volume, employee-generated flow of information out of agencies. This flow has significant implications for the distribution of policymaking power within agencies and for the direction and efficacy of agency oversight. For example, the Article posits that soft whistleblowing empowers those agency professionals whose codes of ethics encourage some information disclosure (engineers are one example), while disempowering agency lawyers, whose code of ethics all but forbids unsanctioned disclosures about their client agencies’ activities. With respect to outside oversight, soft whistleblowing increases agency transparency, and strengthens congressional oversight, but undermines so-called “presidential administration.” Consequently, the activity likely serves a keel-like function, keeping the agency on a relatively steady policymaking course in the face of shifting political winds.
Leiter comments
To explore the implications of soft whistleblowing for agency governance and accountability, it is first necessary to define the term. Many agency leaks (particularly those that make the front pages of national newspapers) fit the traditional understanding of “whistleblowing.” While there is no universal definition of that term, it is generally understood to refer to "‘the disclosure by organization members (former or current) of illegal, immoral, or illegitimate practices under the control of their employers to persons or organizations that may be able to effect action.’" The WPA suggests an alternative, narrower definition: the “disclosure of information . . . which the employee reasonably believes evidences—(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” For its part, the House Ethics Manual encourages government employees to disclose evidence of “corruption wherever discovered.” The unifying feature of these various definitions is their focus on the disclosure of misconduct or malfeasance — “illegal, immoral, or illegitimate practices,” violations of laws or rules, gross mismanagement, waste, or corruption. These kinds of disclosures have important and well-explored implications for agency function and democratic accountability.
I focus on a very different kind of disclosure that is subtler, more ubiquitous, and even more consequential for agencies: low-level, mid-level, and even senior employees’ disclosure of inside information about decisions, policies, or practices that are presumptively legal and moral, but are nonetheless open to debate or controversy. “Soft whistleblowing” thus refers to an agency employee’s deliberate, unsanctioned, substantive, and instrumental disclosure of non-public and policy-relevant information, in the absence of evidence of malfeasance.
To put the distinction in more general terms, traditional or hard whistleblowing often involves leaked evidence, or at least allegations, of a legal or ethical lapse at an agency. Soft whistleblowing, by contrast, refers to disclosures about agency actions that may seem arbitrary or ill-advised but are neither illegal nor immoral — for example, an agency’s adoption of a policy that, in the soft whistleblower’s view, lacks scientific support or exceeds (or falls impermissibly short of) the agency’s statutory mandate. The narratives in Part III provide concrete examples. The line between “hard” and “soft” whistleblowing may sometimes be difficult to draw, of course, because “illegal” and “immoral” can be imprecise terms. That said, the fact that some leaks cannot easily be categorized as hard or soft does not undermine the importance of the underlying distinction for understanding the causes and consequences of each type of disclosure.
Before turning to my case studies, it is important to distinguish the subject of this Article from some neighboring areas. First, the Article is not about White House or agency efforts to “test[ ] the political waters for a policy” by planting news of the policy prior to its official release. Nor does it address accidental leaks. Finally, and most significantly, the Article reserves important questions about the legality and ethics of soft whistleblowing. Any discussion of leaks by government employees provokes widely divergent reactions. Some consider the behavior inherently disloyal or unethical; others argue that stringent protection of government whistleblowers is critical to a functioning democracy; and still others view government whistleblowing as a necessary evil, with benefits for democratic accountability that must be weighed against costs to workplace morale and national security. Reflecting these divisions, “U.S. senators, depending on their perspective of citizenship and organizational citizenship, have described government informants as either ‘patriotic’ and ‘citizen crime-fighters’ or ‘snitches’ and ‘rats’” — comments that expose deep national “ambivalence . . . about the role of individuals in resisting illegality in their group settings.”
Soft whistleblowing seems likely to provoke a similar range of reactions, depending on one’s views about the relative importance of public accountability, on the one hand, and loyalty, confidentiality, and administrative efficiency on the other. Whatever one thinks of the ethical choices of individual soft whistleblowers, though, their actions are too easy and too free of personal consequences to be easily quashed.48 This Article therefore reserves questions about soft whistleblowing ethics, the potential civil or criminal liability of individual soft whistleblowers, and constitutional protections for the journalists who receive soft whistleblowers’ disclosures, and focuses instead on the central governance questions: how to expand our understanding of agency structure and function, and of congressional, presidential, judicial, and public oversight of agencies, to take better account of the undeniable fact that people — including agency personnel — are prone to talk.