Professor Amanda Leiter - 'Soft Whistleblowing' and the Unitary Executive

Faculty Scholarship Highlight, October 2012

Associate Dean for Scholarship Stephen Vladeck talks with Professor Amanda Leiter.

For decades, scholars and policymakers too numerous to count have grappled with the appropriate scope of government whistleblowing--when government employees break the chain of command in order to reveal to inspectors general (or, in some cases, the public) waste, fraud, or abuse by the relevant government agencies. But Associate Professor of Law Amanda Leiter argues that another form of whistleblowing is dramatically underappreciated by those who regulate and write about our modern administrative state. As the title of her current work-in-progress suggests, Professor Leiter's focus is on what she calls "soft whistleblowing"--when government employees disclose to interested parties inside information about presumptively legitimate governmental policies or practices not to reveal fraud, waste, or abuse, but to empower outside groups to push for changes in those policies or practices that the employees are unable to effectuate from the inside.

As Professor Leiter persuasively demonstrates through anecdotal examples and a series of interviews, soft whistleblowing has become a pervasive practice in many government agencies-and, as she puts it, "the disclosures are so substantive and cover such a broad range of subject areas, that the resulting high-volume flow of policy-relevant information has profound consequences for agency policy development, and for the constitutional legitimacy of the administrative state." In particular, soft whistleblowing has the potential to influence both "the direction and efficacy of congressional, presidential, and judicial oversight of agency activities, and also affect the agency's image in the all-important court of public opinion." If soft whistleblowing is as ubiquitous as she believes, then agency employees play a large role in the very external oversight that is such an indispensable feature of the administrative state. And, Professor Leiter concludes, soft whistleblowing may well strengthen legislative and judicial control of agencies, but appears to dilute "presidential administration," i.e., the Executive Branch's ability effectively to manage administrative policymaking and enforcement from the top.