Senate steps in to save CFTC’s whistleblower program

The CFTC Fund Management Act (S.409) unanimously passed the Senate, and a similar version of the bill may be considered by the House.

The CFTC’s whistleblower office is currently funded by the agency’s Consumer Protection Fund, which is supported by fines and penalties. The fund is capped at $100 million. Any funds over that amount are transferred to the U.S. Treasury’s general fund.

The CFTC is preparing to pay a $100 million-plus award to a former Deutsche Bank executive who alerted authorities to the bank’s manipulation of the London Interbank Offered Rate, or LIBOR. In 2015, Deutsche Bank agreed to pay $2.5 billion in penalties to settle charges related to its manipulation of LIBOR. Of that sum, approximately $800 million would be paid to the CFTC.

Whistleblowers who provide timely and accurate information that leads to a successful enforcement action can receive between 10 and 30 percent of the penalty awarded, according to the CFTC’s whistleblower program rules. A payout that size, however, would deplete the Consumer Protection Fund and leave the agency’s whistleblower office with no funds to operate, according to the Wall Street Journal.

First proposed by Sen. Chuck Grassley (R-Iowa), the CFTC Fund Management Act establishes a separate fund with $10 million to exist until October 2022. The fund’s sole purpose is to keep the CFTC whistleblower office open. Otherwise, the office staff would be laid off later this month. The bill is viewed as a stopgap measure as Congress decides whether to change the way the CFTC whistleblower program is funded.

“The CFTC whistleblower program has become far more successful than Congress imagined when we set it up back in 2010. Some awards distributed to whistleblowers have grown to the point that they risk wiping out the award fund before it can be replenished, sidelining program staff and operations in the process. We can’t allow this program to become a victim of its own success. Now that the Senate has passed this bill, the House must act quickly to preserve the program,” Grassley said in a statement.

Through a spokesperson, the CFTC said, “We are working with Congress to ensure the continued success of the program.”

Stephen Kohn, partner with whistleblower law firm Kohn, Kohn & Colapinto and board chairman of the National Whistleblower Center, said the move to separate funding of whistleblower offices from funds connected to enforcement is long overdue.

“If the whistleblower office shuts down, that is just a disaster,” he said. “This is a fantastic first step to save the CFTC whistleblower program.”

Noting that whistleblower awards often take many years to be paid out, Kohn said further delays would hurt whistleblowers and make it more difficult for them to come forward with information.

Kohn said the Internal Revenue Service and Securities and Exchange Commission should also consider separating the funding of their whistleblower programs from funds supported by penalties.

“Without the resources to run the programs, these delays will just continue,” he said.