Imagine you’re a federal worker and your boss asks you to violate a federal law that’s been passed by Congress. If you refuse to do so — instead pledging fidelity to the law — you’re protected from employment retaliation thanks to the Whistleblower Protection Act of 1989. It’s your superior who’s considered in the wrong for making the illegal request in the first place, not you for disobeying your boss.
But what if you disobey an order to violate a regulation instituted by the executive branch instead, rather than a law passed by Congress? The difference may seem minor, but the consequences are major: you’re not protected at all.
The Follow the Rules Act, labelled H.R. 657 in the House, was introduced by Rep. Sean Duffy (R-WI7) to correct this discrepancy.
This discrepancy never came up until last year. Timothy Rainey was a State Department employee who was instructed by his boss to make a contractor rehire a previously-fired subcontractor, in violation of an existing federal regulation. Rainey refused, and his boss retaliated by removing his responsibilities as a contracting officer.
Although Rainey would have been protected had he refused to violate a law passed by Congress, he instead refused to violate a rule or regulation instituted by the executive branch and wasn’t protected at all. A federal appeals court upheld Rainey’s punishment in the precedent-setting decision Rainey v. Merit Systems Protection Board in June 2016.
This decision proved especially controversial in the legal community because the appeals court’s decision relied upon a Supreme Court precedent in a way that many believed twisted the Supreme Court’s original logic, since that Supreme Court decision found in favor of a federal employee rather than against.
What the bill does and what supporters say
The Follow the Rules Act is one page long, and would clarify that a rule or regulation is given the same legal weight as a law when it comes to federal employee protections.
An example provided by a Duffy press release regards a rule or regulation created to sanction North Korea. A federal employee who is told by a superior to violate the North Korea sanctions would currently have no protections if they refuse.
Supporters say the legislation helps ensure effective governance, especially in a highly polarized political environment when Democrats and even some Republicans have heightened concern about political pressure on career civil service employees.
“Given attacks on the federal workforce… we need to do all we can to ensure that federal employees are allowed to perform their jobs free from political pressure to violate laws, rules, and regulations,” House cosponsor Rep. Gerry Connolly (D-VA11) said in a press release. “We cannot tolerate the issuance of gag orders to silence dissent. And we cannot permit the firing of agency employees who have differing political views from our own or from Administration actions.”
Votes and odds of passage
The legislation passed the House unanimously 407–0 on May 1, after first attracting 11 cosponsors, six Democrats and five Republicans. It then passed the Senate by a unanimous consent voice vote on May 25. Now it goes to President Trump.
A previous version passed the House in November 2016, but never received a Senate vote.