Senate Holds

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Contents

Introduction

Background

The general public does not tend to know or pay much attention to the Senate practice of placing holds, but scholars, journalists, and political scientists have been targeting the practice for decades.  There are two types of Senatorial holds which are often confused with each other.  Senatorial holds are placed publicly on the floor by a Senator.  Secret holds are placed privately by a Senator informing his or her party Senate leader or their secretary of the hold prior to the floor session.  Both types of holds are informal customs in the Senate that allow Senators to keep certain issues from reaching the floor by informing their party leadership.  The basis for the hold is that the Senator implies that they will object to addressing any issue on which they have set a hold.  The Senate majority leader sets the Senate's agenda and has the final say regarding the implementation and the length of a given hold.  Interesting to note as well is that the Vice President, technically the President of the Senate, does not have the ability to place a hold.  Holds most likely originated as a way to notify Senators when issues of interest were placed on the agenda by the Majority Leader.  Senate holds began being used to promote personal policy objectives and political agendas starting in the late 1970s.  In a legislative body as dependent on unanimous consent agreements as the Senate is, holds can be an effective way to delay action on either legislation or nominations. Holds can be overcome by invoking cloture, but that process requires 60 votes and takes some time.


There have been numerous attempts to reform hold practices to increase transparency and accountability, and the practice was even banned temporarily in 1997.  The Majority Leader at the time, Trent Lott (R-MS) and the Minority Leader Tom Daschle (D-SD) implemented a rule for the 106th Congress that anyone placing a hold on a bill had to first inform the bill's sponsor and committee chair.  The lack of anonymity led to Senators waiting to place a hold until the legislation was already on the floor.  This ended up taking more time and further delaying proceedings.  This attempt as well as other efforts tend to be unsuccessful, as placing holds is a longstanding tradition that gives all Senators power and control over the Senate agenda.  Some major reform efforts have been:

  • Establishing time limits for how long a hold can be in place
  • Abolishing holds completely
  • Setting a standard framework for hold procedure
  • Abolishing permanent holds
  • Abolishing the ability to place blanket holds to stop all legislation
  • Ending secret holds
  • Instituting requirements that more than one Senator has to place a hold for it to be honored
  • Allow Majority Leader to overrule holds


In his 2007 CRS report, Walter Oleszek makes six general observations about holds:

  • Although holds are not a formal provision in the standing rules, they are becoming increasingly important in terms of how the modern Senate operates.
  • Reforming the hold system is not an easy task as evinced by the numerous failed attempts to do so.
  • Senators are reluctant to abolish holds since they contribute to the personal influence of individual Senators.
  • The Majority Leader is the final arbiter in deciding whether to place the hold and for how long. 
  • Holds are increasing in frequency due to increased willingness of Senators to utilize their parliamentary influence to the fullest extent.
  • Holds allow Senators to choose issues where they want to have increased influence.


Forefront of Debate

Senatorial holds, and specifically secret holds, moved to the top of the political agenda in 2006 when a secret hold was placed on the Federal Funding Accountability and Transparency Act.  The bill aimed to increase government transparency and it was hard to miss the irony of a transparency bill being stalled by an anonymous hold.  Political activists were determined to identify the Senator responsible so they organized on either side of the partisan divide to urge constituents to call their Senators and insist on an on-record denial of placing the hold.  Within 24 hours, 96 Senators officially denied placing the hold.  Eventually Sen. Ted Stevens (R-Ala.) admitted to placing the hold.  A day later Sen. Robert Byrd (D.-W.Va) also admitted to placing the hold.  After the hold was lifted the bill passed the Senate unanimously.


Motivated by the 2006 secret hold scandal, the Senate passed the Honest Leadership and Open Government Act of 2007 that among other things set limitations on secret holds (see Sec. 512 below).  The bill stipulated that after six days of a hold a Senator would have to openly submit their name and reasons for maintaining the hold.  If the Senator removed the hold before the six days were up they could remain anonymous.  This last condition has become a loophole used to extend an anoymous hold indefinitely.  In addition the clause lacked any enforcement mechanisms for penalties if a Senator failed to comply.


SEC. 512. NOTICE OF OBJECTING TO PROCEEDING.
(a) In General- The Majority and Minority Leaders of the Senate or their designees shall recognize a notice of intent of a Senator who is a member of their caucus to object to proceeding to a measure or matter only if the Senator--
(1) following the objection to a unanimous consent to proceeding to, and, or passage of, a measure or matter on their behalf, submits the notice of intent in writing to the appropriate leader or their designee; and
(2) not later than 6 session days after the submission under paragraph (1), submits for inclusion in the Congressional Record and in the applicable calendar section described in subsection (b) the following notice: `I, Senator XXXX, intend to object to proceedings to XXXX, dated XXXX for the following reasonsXXXX.'.
(b) Calendar-
(1) IN GENERAL- The Secretary of the Senate shall establish for both the Senate Calendar of Business and the Senate Executive Calendar a separate section entitled `Notice of Intent to Object to Proceeding'. <span style="font-family: Times New Roman;" />
(2) CONTENT- The section required by paragraph (1) shall include-- (A) the name of each Senator filing a notice under subsection (a)(2); (B) the measure or matter covered by the calendar that the Senator objects to; and (C) the date the objection was filed.
(3) NOTICE- A Senator who has notified their respective leader and who has withdrawn their objection within the 6 session day period is not required to submit a notification under subsection (a)(2). (c) Removal- A Senator may have an item with respect to the Senator removed from a calendar to which it was added under subsection (b) by submitting for inclusion in the Congressional Record the following notice: `I, Senator XXXX, do not object to proceed to XXXX, dated XXXX.'.<span style="font-family: Times New Roman;" />


Current Status

Despite the 2007 ban the use of holds to block legislation continued.  Senator Tom Coburn (R.-Okla.) placed a number of holds on various bills throughout the 110th Congress, ultimately leading Senate leadership to place them together into one Omnibus (or Tom-nibus) Act at the start of the 111th Congress.  In addition, February 2010 saw Senator Richard C. Shebly (R-AK.) placing secret holds on 70 of President's Obama's nominees in order to win two defense contracts for his state.  Also to circumvent the six day limit on secret holds, Senators started tag-teaming where one Senator would place the hold anonymously for five days then switch off to his tag-team partner for the next five days.  By switching back and forth every five days, two Senators could maintain an anonymous hold indefinitely.


In 2009 Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to the Senate Ethics Committee urging the panel to investigate the continuing use of secret holds.  The Senate Ethics Committee responded in April 2010 stating that it did not have jurisdiction on the secret holds.  Then on April 22, 2010, 69 senators sent a letter to Senate Leaders Reid and McConnell promising not to place secret holds on either legislation or nominees and urging the leaders to end the traditional use of holds.


Holds are still clearly a major obstacle to the Senate being able to function effectively.  On Sept. 14 2010 Senate Majority Leader Harry Reid announced that he planned to hold a vote on the secret hold bill being pushed by Sens. Ron Wyden (D-Ore.), Chuck Grassley R-Iowa), and Claire McCaskill (D-Mo.) as an amendment to the defense authorization bill.  A week later Sen. Jim DeMint (R-SC) placed a blanket hold on all legislation not approved by his office until the November elections. This act effectively turned Congress into a "legislative dictatorship" with Sen. DeMint holding all the power, and the transparency act was tabled for the present.


The transparency bill would change the procedure for holds so that when a Senator places a hold but does not submit a formal intent to object within one session day, the Legislative Clerk will openly list the Senator who made the objection. While this accounts for the secrecy part, it still does not affect the actual existence of the holding tradition. The hold is still a viable threat to filibuster which usually prevents other Senators from wasting the time it takes to go through the cloture process to overcome the hold.


Solutions

In August 2010 David Waldman offered his take on solving the secret hold problem.  The anonymity makes it hard to pressure a Senator who has a hold in place to relinquish it, but Waldman presented an interesting way to put a name on the hold.  The anonymity is only maintained by the objecting Senator insisting that he is objecting on behalf of another Senator.  Waldman questions why the public would allow this to continue.  As he says, "An objection is an objection, and it extinguishes a unanimous consent request just as surely as if the Senator allegedly objecting in secret had done it himself."  The solution he presents is that the Senator who makes the formal objection owns the hold.  This accounts for the anonymity problem.  In terms of the hold itself, Waldman suggests making the motion to proceed non-debatable.  If it is non-debatable then it could never be subjected to the extended debate of a filibuster, and the hold threat would be moot.


In terms of other solutions, Sen. Harry Reid is attempting to push measures that would prohibit secret holds through with the Defense Authorization bill in November 2010.


References and Additional Resources

Sunlight Foundation Resources

Push to end Holds

Other Reporting on Senate Holds


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