Whistleblowers play a crucial role in democratic societies. Recognizing this function is important for fully appreciating Patrick Eddington’s call for reforms to protect whistleblowers as well as the limitations of relying on channels internal to government institutions for whistleblowers to report wrongdoing. My purpose is twofold. First, I discuss why whistleblowers are important in democracies for checking political opportunism. Second, I consider why being an effective whistleblower might involve going public and circumventing formal government channels.
Democratic politics is characterized by numerous principal-agent problems. A principal-agent problem exists whenever one person (the “agent”) is able to make a decision on behalf of another person (“the principal”). Absent incentives to align the interests of the two parties, there is the potential for agent opportunism whereby the agent pursues their own interests instead of those of the principal they are hired to represent. Citizens are principals who “hire” elected officials to serve as their agents by representing their interests in political matters. Elected officials, in turn, are also principals who hire bureaucrats as their agents to provide goods and services to their constituents. Mechanisms, such as citizen voting and congressional oversight, are intended to solve these principal-agent problems by aligning incentives. But a large literature in public choice has highlighted various frictions that limit their effectiveness.[1]
In order to punish elected officials for engaging in narrow opportunism, voters must possess information about their wrongdoing. The issue is that acquiring the requisite information is costly. As policy becomes more complex it becomes increasingly difficult for voters to obtain the necessary information and to discern the specific role played by their representatives. This becomes even more difficult when the required information is kept secret by those in government. These factors are especially important in matters of national security and foreign policy, which are often highly nuanced and where members of the U.S. government are all too comfortable classifying information to restrict access.[2]
Even where information is available, voters are often subject to “rational ignorance” due to the cost of obtaining information relative to the benefits. Simply put, the cost of acquiring information is positive while the benefits are often minuscule given the limited influence of a single vote on electoral outcomes. The result is widespread voter ignorance which limits the effectiveness of the voting booth as a check on political opportunism.[3] Another issue is that each voter only receives a single vote which limits their ability to express the intensity of their dissatisfaction with elected officials. There is also the issue of the timing gap between elections, which further limits the ability of voters to punish or reward elected officials. The long delays between elections further limit the effectiveness of the voting booth as a check on political opportunism.
What about congressional oversight of bureaus? There are three issues which weaken the effectiveness of this check. The first is the aforementioned over classification of information, which limits the access to certain members of congress. Second, members of Congress often rely on the bureaus they oversee to supply information regarding their activities. The issue is that members of the bureau can control the flow of information, both in terms of content and the timing of its release, which is being used to monitor their actions. Third, members of congressional oversight committees may have the incentive to ignore wrongdoing by the bureaus they monitor. When discussing congressional oversight of the National Security Agency (NSA), James Bamford noted that “the intelligence committees are more dedicated to protecting the agencies from budget cuts than safeguarding the public from their transgressions.”[4] Together, these factors limit the ability of congressional oversight to solve the principal-agent problem.
Within this context the role of whistleblowing is clear. Whistleblowers serve as a means of resolving the principal-agent problem in democratic politics.[5] They do so by avoiding many of the issues facing individual voters and members of Congress. Whistleblowers have access to local and context-specific information regarding abuses of political power. Because they are embedded in the organization and have direct experience, whistleblowers have nuanced knowledge about the operations of government that outsiders—both voters and congressional members—cannot have. This direct knowledge also allows whistleblowers to circumvent the constraints created by secrecy and classification. For the same reason, whistleblowers do not suffer from issues of information control and manipulation by bureaus since they are the source of information.
Given the role of whistleblowers, how are they to report on wrongdoing? There are two methods. The first relies on formal, internal channels to report abuse. This is the focus of Patrick Eddington’s lead essay. He accurately describes the limitations, and in many instances the complete lack, of protections for whistleblowers. I agree with his call for reform. However, I would extend his discussion by emphasizing the importance of a second avenue for whistleblowing reporting—going public. This second channel involves whistleblowers reporting information to the public either directly or through a third party, such as the media. I believe this option is necessary even if Eddington’s proposed reforms were implemented. The reason is that there will still be frictions that may limit the effectiveness of formal, internal channels for reporting wrongdoing.
The normal operations of government can move extremely slowly due to bureaucratic inertia. Consider the case of Richard Levernier, who worked for the U.S. Department of Energy to identify weaknesses in plans to protect its nuclear plants from terrorist attacks. After identifying numerous weaknesses and threats through formal channels, Levernier was stripped of his security clearance and reassigned to a clerical position. It took more four years for the United States Office of Special Counsel (OSC), the independent federal agency tasked with protecting whistleblowers, to investigate and rule that the Department of Energy’s retaliation was unlawful. Perhaps a better-designed review process might have led to a faster resolution, but this case illustrates how the sluggishness of bureaucratic processes in general can delay the protection of whistleblowers even when they follow established formal rules.
In addition to inefficiencies with formal rules, there are informal norms which often discourage internal whistleblowing. As Daniel Ellsberg notes, “[t]he mystique of secrecy in the universe of national security, even beyond the formal apparatus of classification and clearances, is a compelling deterrent to whistleblowing and thus to effective resistance to gravely wrongful or dangerous policies. In this realm, telling secrets appears unpatriotic, even traitorous.”[6] Such an insular culture limits the effectiveness of even well-designed formal rules for internal reporting by whistleblowers.
The major concern with allowing whistleblowers to go public is that they too may engage in narrowly self-interested opportunism. This is one justification used to limit public whistleblowing through severe penalties. Given the important role of whistleblowers, these penalties create a problem by discouraging both narrowly opportunistic and truthful whistleblowers from revealing information. What is needed are mechanisms which create a separation between the two categories of whistleblowers.
One set of rules is offered by Patrick Rahill who proposes a multi-factor test for courts when considering whether an act of whistleblowing was legal.[7] This includes a consideration of intent on the part of the whistleblower, the type of information leaked, the recipient of the leaked information, and whether the leak was done in the public interest. While one could envision variations of the specific rules, the central idea is the importance of incentivizing truthful whistleblowers to go public, while discouraging those motivated by narrow self-interest. Rules which encourage truthful public whistleblowing are a complement to Patrick Eddington’s proposed reforms to formal, internal channels for whistleblowing. Together, these reforms would maximize the chances of whistleblowers serving as effective checks on political abuse and opportunism.
Notes
[1] For an overview of public choice see, Dennis C. Mueller, Dennis C. 2003. Public Choice III. Cambridge, MA: Cambridge University Press; Charles K. Rowley and Friedrich Schneider. 2004. The Encyclopedia of Public Choice. 2 vols. New York: Springer; Michael Reksulak, Laura Razzolini, and William F. Shughart II. 2014. The Elgar Companion to Public Choice, 2nd Edition. Northampton, MA: Edward Elgar Publishing, Inc.
[2] On the over classification of national security information, see Steven Aftergood. 2009. “Reducing Government Secrecy: Finding What Works,” Yale Law & Policy Review 27(2): 399-416; Elizabeth Goitein and David M. Shapiro. 2011. Reducing Overclassification Through Accountability. New York, NY: The Brennan Center for Justice at New York University School of Law.
[3] See the Cato Unbound discussion on “Is Smaller Government Smarter Government?” October 2013.
[4] James Bamford. 2013. “Five Myths about the National Security Agency,” The Washington Post, June 21.
[5] For a more detailed treatment of this point, see Christopher J. Coyne, Nathan Goodman, and Abigail R. Hall. 2019. “Sounding the Alarm: The Political Economy of Whistleblowing in the US Security State,” Peace Economics, Peace Science, and Public Policy, 25(1): 1-11.
[6] Daniel Ellsberg. 2010. “Secrecy and National Security Whistleblowing,” Social Research 77(3): 773-804.
[7] Patrick M. Rahill. 2014. “Top Secret—The Defense of National Security Whistleblowers:
Introducing a Multi-Factor Balancing Test,” Cleveland State Law Review 63: 237-267.