Soft Whistleblowing

Abstract

This Article explores 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.

Keywords: administrative law, whistleblowing, soft whistleblowing, leaks, agency oversight