Senate Looks at Holds, Confirmation Delays

A new rule aims to prevent secret holds on legislation.

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Last week, the Senate overwhelmingly approved a new rule which aims to forbid secret holds, the long-time Senate practice which allows a senator to anonymously delay a bill or presidential nomination. The new rule was part of a bipartisan compromise between Republican, and some Democratic, senators who defended the Senate’s current procedure, and some Democratic senators who were pushing for more drastic reforms.

But despite the new rule, some parliamentary experts are skeptical that the Senate has truly put secret holds into the dustbin. The practice has survived several previous attempts to ban them, and so long as party leaders are willing to block bills on behalf of their caucus members, they may be impossible to completely eliminate.

Senatorial holds are powerful bargaining tools, due to the Senate’s time-consuming process for moving forward with bills or nominations. In order to speed things up, the majority leader often asks for unanimous consent to bypass the usual procedure and move to an immediate vote. Any senator can halt such a move by objecting. Over the years, the Senate created rules for holds as a way for a senator to inform the majority leader ahead of time that he or she intends to object. That gives the leader time to either win the senator over, or drop the bill and move on to another matter. In the past, senators have been allowed to place a hold without their name becoming public. A 2007 reform was supposed to crack down on the secret holds, but senators found creative ways to game the rules. [See a slide show of the top Congressional travel destinations.]

Reformers hope that the rules passed last week will finally put an end to the practice, by requiring that any senator who places a hold is revealed within two days. Unlike in the past, the senator’s name would be revealed, regardless of whether he or she drops the hold. But Senate experts wonder how much the new rule will change. “In theory, it could work,” says Sarah Binder, a Brookings Institute scholar. “It comes down to expectations of changing people’s behavior. This particular new rule doesn’t have the jaws to make it happen.”

Binder noted that party leaders may continue to block legislation on behalf of other senators, as they often have done in the past. It’s also possible that senators will simply ignore or go around the rules, which Binder said has happened during the past Congress. Martin Gold, an attorney and former staffer for then-Republican Senate Majority Leader Bill Frist, agreed that ultimately it will come down to whether senators follow the spirit of the law. “I’m not sure it makes immense difference,” Gold says.

Supporters of the bill acknowledge that a senator could still object on behalf of a secret colleague. But the senator who initially places the hold would still be accountable. “If you’re objecting on behalf of someone, you’ll have to be comfortable having your name on the record,” says Jennifer Hoelzer, a spokeswoman for Democratic Senator Ron Wyden of Oregon, the sponsor of the new rule resolution. [See a gallery of political caricatures.]

Another rules change adopted by the Senate would prevent a senator from requiring that lengthy amendments be read aloud by Senate clerks. That tactic was rare, but was sometimes used by opponents of a bill to tie it up for hours, or even days. Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell also reached a hand-shake agreement to restrain two controversial parliamentary tactics. Reid promised to rarely “fill the tree,” which prevents the minority party from submitting amendments to a bill. In return, McConnell promised to cut down on filibusters for motions to proceed to a bill, the first part of considering a bill. The minority party would still have a chance to filibuster a bill when a motion is made for a vote.

Observers say that the most substantive reform to come from the bipartisan deal is to exempt about a third of the president’s appointees from Senate confirmation. Two years into his presidency, Barack Obama still has yet to fill more than a hundred positions in his administration, due to the time-consuming process of getting so many nominees confirmed. The reform, which will require legislation instead of a rules change, has yet to be voted on in the Senate.