Qui tam is whistleblower concept. It is the process whereby an individual sues or prosecutes in the name of the government and shares in the proceeds of any successful litigation or settlement. Although frequently punitive, it is generally a civil procedure. Unlike antitrust, RICO, and other federal punitive damage, private attorney general provisions, the individual need not have been a victim of the misconduct giving rise to the litigation. The name qui tam is the shortened version of an oft abbreviated Latin phrase which roughly translates to "he who prosecutes for himself as well as for the King." Qui tam comes to us from before the dawn of the common law. Reviled at various times throughout the ages as a breeding ground for "viperous vermin" and parasites, legislative bodies have authorized it when they consider the enforcement of some law beyond the unaided capacity or interest of authorized law enforcement officials. Best known of the contemporary members of the line is the federal False Claims Act (31 U.S.C. 3729-3733). From 1986 until expansion of the Act in 2009, False Claims Act recoveries totaled an amount in excess of $20 billion. Since then, they have totaled an additional $13.3 billion. This is a brief discussion of the constitutional questions raised by qui tam provisions; of the history of such provisions; and of the two existing, active federal qui tam statutes: the False Claims Act and an Indian protection provision. The earliest cited example of a qui tam provision is the 695 declaration of King Wihtred of Kent, which stated that "If a freeman works during the forbidden time [ i.e ., the Sabbath], he shall forfeit his healsfang , and the man who informs against him shall have half the fine, and [the profits arising] from the labour." By the fourteenth, fifteenth, and sixteenth century, qui tam statutes had become a common feature of English law. They brought with them, however, unintended consequences. They gave rise to a class of bounty hunters who unscrupulously exploited weaknesses in the system. "Old statutes which had been forgotten were unearthed and used as means to gratify ill-will. Litigation was stirred up simply in order that the informer might compound [ i.e., settle] for a sum of money. Threats to sue were easy means of levying blackmail." Coke in his Third Part of the Institutes of the Laws of England devotes a chapter to the reform legislation designed to control the practices of these "vexatious relators, informers, and promoters," whom he classifies as turbidum hominum genus (a class of unruly men) and as a species among the classes of "viperous vermin" – a class was so unpopular that Queen Elizabeth I at one time found it necessary to issue a proclamation shielding its members from mob violence. Legislative reform, however, appears to have been effective, because a century and a half after Coke's comments, Blackstone describes qui tam without criticism, expect to note a statutorily-cured abuse. Qui tam was no stranger to colonial America or to the early Republic. Colonial legislatures enacted qui tam statutes of their own, and colonial courts heard qui tam cases arising under these statutes, as well as under English law. Qui tam statutes dot the work of the first Congresses of the new Republic, and qui tam cases appear among the cases of the early federal courts. By the turn of the twentieth century, qui tam statutes had largely fallen into disuse in this country, although they often remained on the books. In Stevens , the Supreme Court identified four contemporary federal qui tam statutes: the False Claims Act, the Patent Act, and two Indian protection laws. One of the Indian protection statutes has since been amended so that it no longer authorizes a qui tam action. The Leahy-Smith America Invests Act replaced the Patent Act qui tam provision with one that affords victims a cause of action. Of the two survivors, the False Claims provision is by far the more often invoked. Congress has enacted a number of other statutes, beyond those with obvious qui tam markings, which might be similarly characterized. The Supreme Court observed in United States ex rel. Marcus v. Hess that "statutes providing for a reward to informers which do not specifically either authorize or forbid the informer to institute the action are construed to authorize him to sue." The suggestion encouraged environmentalists to bring qui tam actions based on an informer-reward provision in the Rivers and Harbors Act. The lower courts were not particularly receptive to the suggestion. In fact thus far, they have generally refused to recognize the authority to bring a qui tam action under the Rivers and Harbors Act. Yet the Court mentioned the suggestion again in Vermont Agency of Natural Resources v. United States ex rel. Stevens, and in citing the existing qui tam-specific statutes, pointed out two of the qui tam-silent informer-reward statutes. The lower federal courts, however, continue to maintain that "Congress must explicitly create qui tam statutes." The False Claims Act originated as the Act of March 2, 1863. Its brief legislative history is devoted almost exclusively to a subsequently abandoned proposal that all offenders, both military and civilian, be tried by courts martial. Senator Howard, the sponsor and floor manager of the bill in the Senate, provided the only explicit explanation of the qui tam provision: The other clauses which follow, and which prescribe the mode of proceeding to punish persons who are not in the military service of the United States, I take it, are open to no serious objection. The effect of them is simply to hold out to a confederate a strong temptation to betray his coconspirator, and bring him to justice. The bill offers, in short, a reward to the informer who comes into court and betrays his coconspirator, if he be such; but it is not confined to that class. Even the district attorney, who is required to be vigilant in the prosecution of such cases, may be also the informer, and entitle himself to one half the forfeiture under the qui tam clause, and to one half of the double damages which may be recovered against the person committing the act. In short, sir, I have based the fourth, fifth, sixth, and seventh sections upon the old-fashion idea of hold out a temptation, and "setting a rogue to catch a rogue," which is the safest and most expeditious way I have ever discovered of bringing rogues to justice. As enacted, the statute prohibited various frauds against the government, including making or presenting false claims, false vouchers, false oaths, forged signatures, theft, embezzlement, and conspiracy. The proscriptions applied to both military personnel and civilians. Civilian offenders faced a sentence of imprisonment of from one to five years or a fine of not less than $1,000 or more than $5,000. They also faced civil liability in the amount of $2,000, double the amount of damage sustained by the United States, and costs. Any person might bring suit in the name of the United States to recover the civil penalties, although the suit could only be settled with the consent of the court and federal prosecutors. The private parties, known as relators, were entitled to half of the penalty recovered and costs, if successful. The qui tam provisions were codified in the Revised Statutes and continued relatively unchanged until 1943 when the Attorney General sought to have them repealed. On August 28, 1942, Attorney General Biddle requested repeal of the qui tam provisions in identical letters to the Speaker of the House and the Chairman of the Senate Judiciary Committee. He explained that: The reasons advanced by Senator Howard for the enactment of these sections are no longer pertinent. Recent experience shows that plaintiffs in informers' suits not only fail to furnish to the United States the information which is the basis of their actions, but on the contrary, at times base the litigation on information which has been secured by the Government in the regular course of law enforcement. Such plaintiffs at times not only use information contained in indictments returned against the defendant, but also seek to use Government files to prove their cases. Consequently, informers' suits have become mere parasitical actions, occasionally brought only after law-enforcement offices have investigated and prosecuted persons guilty of a violation of law and solely because of the hope of a large reward. He also referred to a court of appeals decision that seemed to reflect judicial condemnation of the qui tam provisions. The Senate passed the repeal proposal with little debate at the close of the 77 th Congress. The House acted with similar dispatch and passed a comparable bill when it convened in the 78 th Congress. In the interim, however, the Supreme Court had repudiated the lower court opinion which the Attorney General had cited. Moreover, opposition to repeal had developed in the Senate. As a consequence, the Senate Judiciary Committee recommended curtailing, rather than repealing, the false claim qui tam provisions. The two Houses ultimately concurred and passed Public Law 78-213. The legislation required relators to provide the government with the evidence upon which their litigation was based and to allow the government 60 days to intervene. It precluded qui tam suits based on information already within the government's possession, and it reduced the relator's share of a successful suit from 50% to no more than 25% (no more than 10% should the government litigate the case). The 1943 amendments addressed reform of those qui tam procedures seen as rewarding the unworthy and obstructing other law enforcement efforts. The 1986 amendments reinvigorated qui tam procedures in the face of the evidence of extensive fraud against the United States. They reflected a fairly wide array of concerns.