Pluralistic: How to screw up a whistleblower law (15 Apr 2024)

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A proletarian-looking figure glowering from between rusty bars. In front of the bars is a capitalist-type guy in a top hat holding a huge money-sack emblazoned with a dollar-sign. He's shouting over his shoulder at the imprisoned prole. A whistle sits on the ledge of the cell bars.

How to screw up a whistleblower law (permalink)

Corporate crime is notoriously underpoliced and underprosecuted. Mostly, that's because we just choose not to do anything about it. American corporations commit crimes at 20X the rate of real humans, and their crimes are far worse than any crime committed by a human, but they are almost never prosecuted:

We can't even bear to utter the words "corporate crime": instead, we deploy a whole raft of euphemisms like "risk and compliance," and that ole fave, the trusty "white-collar crime":

The Biden DOJ promised it would be different, and they weren't kidding. The DOJ's antitrust division is kicking ass, doing more than the division has done in generations, really swinging for the fences:

Main Justice – the rest of the DOJ – promised that it would do the same. Deputy AG Lisa Monaco promised an end to those bullshit "deferred prosecution agreements" that let corporate America literally get away with murder. She promised to prosecute companies and individual executives. She promised a lot:

Was she serious? Well, it's not looking good. Monaco's number two guy, Benjamin Mizer, has a storied career – working for giant corporations, getting them off the hook when they commit eye-watering crimes:

Biden's DOJ is arguably more tolerant of corporate crime than even Trump's Main Justice. In 2021, the DOJ brought just 90 cases – the worst year in a quarter-century. 2022's number was 99, and 2023 saw 119. Trump's DOJ did better than any of those numbers in two out of four years. And back in 2000, Justice was bringing more than 300 corporate criminal prosecutions.

Deputy AG Monaco just announced a new whistleblower bounty program: cash money for ratting out your crooked asshole co-worker or boss. Whistleblower bounties are among the most effective and cheapest way to bring criminal prosecutions against corporations. If you're a terrified underling who can't afford to lose your job after narcing out your boss, the bounty can outweigh the risk of industry-wide blacklisting. And if you're a crooked co-conspirator thinking about turning rat on your fellow criminal, the bounty can tempt you into solving the Prisoner's Dilemma in a way that sees the crime prosecuted.

So a new whistleblower bounty program is good. We like 'em. What's not to like?

Sorry, folks, I've got some bad news:

As the whistleblower lawyer Stephen Kohn points out to Russell Mokhiber of Corporate Crime Reporter, Monaco's whistleblower bounty program has a glaring defect: it excludes "individuals who were involved with the crime." That means that the long-suffering secretary who printed the boss's crime memo and put it in the mail is shit out of luck – as is the CFO who's finally had enough of the CEO's dirty poker.

This is not how other whistleblower reward programs work: the SEC and CFTC whistleblower programs do not exclude people involved with the crime, and for good reason. They want to catch kingpins, not footsoldiers – and the best way to do that is to reward the whistleblower who turns on the boss.

This isn't a new idea! It's in the venerable False Claims Act, an act that was signed into law by President Abraham Lincoln. As Kohn says, making "accomplices" eligible to participate in whistleblower rewards is how you get people like his client, who relayed a bribe on behalf of his boss, to come forward. As Lincoln said in 1863, the purpose of a whistleblower law is to entice conspirators to turn on one another. Like Honest Abe said, "it takes a rogue to catch a rogue."

And – as Kohn says – we've designed these programs so that masterminds can't throw their minor lickspittles under the buss and collect a reward: "I know of no case where the person who planned or initiated the fraud under any of the reward laws ever got a dime."

Kohn points out that under Monaco, the DOJ just ignores the rule that afford anonymity to whistleblowers. That's a big omission – the SEC got 18,000 confidential claims in 2023. Those are claims that the DOJ can't afford to miss, given their abysmal, sub-Trump track record on corporate crime prosecutions.

(Image: Karen Neoh, CC BY 2.0; Robert Thivierge, CC BY-SA 2.0. modified)

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