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Here’s an Easy Way To Finally Stop Abuse of Holds

I think I wrote my first screed against Senate holds a decade ago — a piece in The New York Times titled “Senatorial Choke Hold.” Since then, I have addressed the issue repeatedly, including columns in Roll Call in 1999 and again two years later. So here we go again.

[IMGCAP(1)] Of course, in so many ways, nothing has changed. The outrageous abuse of individual power through the hold — by Senators taking innocent nominees hostage for utterly extraneous purposes, or individuals blocking votes for months or longer without any effective check on their power — go on. The near-anonymous nature of many holds remains in place, despite an agreement to the contrary. No matter how embarrassing the actions of individual Senators in this area, the institution has an almost infinite capacity to sustain embarrassment, and has refused or failed to act in a meaningful way.

That may be changing. The Senate Rules and Administration Committee, now chaired by Trent Lott (R-Miss.), who knows the ins and outs of holds as well as any Senator, will hold a hearing on the hold on Tuesday. And the firestorm caused by Sen. Larry Craig’s (R-Idaho) hold on more than 300 Air Force nominations, promotions and pay raises, including those of many pilots just back from combat in Iraq — 300 hostages to his demand for four Air Force planes for a base in Idaho — may provide an additional impetus to reform.

The term “reform” has to be qualified here — if by reform we mean a formal change in Senate rules. That is because the hold is nowhere in the rules. It is a custom. As described by former Rep. Larry DeNardis (R-Conn.) in his 1989 doctoral dissertation, the hold began as a matter of common courtesy for individual Senators, in which Senate leaders gave them time (customarily up to two weeks) before debate or vote on a subject if they needed it to bone up on the subject or to avoid conflicts in scheduling.

For the past 20 years, it has been something very different. Like the Incredible Hulk, the Incredible Hold morphed into a monster. It is no longer a way for an individual to gain a little time to muster the best arguments for or against an issue he or she cares about — it is a way for an individual under the cloak of anonymity to kill a nomination or a bill without any repercussions or recourse. Worse, most of these kills are done on innocent hostages, the equivalent of individuals grabbed by terrorists for ransom or to meet other non-negotiable demands.

How did this happen? It evolved by custom, both reflecting and encouraging the spread of rampant individualism in a body that has always catered to unanimous consent and individual prerogatives. For a long time, as I note above, there was a two-week limit to an individual hold. Senators would get around it by recruiting several of their colleagues to practice a “revolving hold,” each in turn asking for a two-week delay. But over time, even that limit was effectively abandoned, requiring only one individual hold to block nominees or bills indefinitely.

Its use has become depressingly commonplace. In 1999, the most visible victim was Richard Holbrooke, nominated to be U.N. ambassador, held for months despite no challenge to his qualifications or integrity, by three Senators — Chuck Grassley (R-Iowa), to protest the treatment of a whistle-blower at the United Nations with no tie to Holbrooke; and Sen. Mitch McConnell (R-Ky.) and Lott to force President Bill Clinton to nominate Bradley Smith to the Federal Election Commission (unfortunately for the integrity of campaign finance law administration, they ultimately succeeded). Sen. James Inhofe (R-Okla.) perfected the Craig approach — he threatened to hold up all pending nominations, including that of Larry Summers to be Treasury secretary, to protest the recess appointment of James Hormel, a gay man, to be ambassador to Luxembourg. This after Hormel’s nomination had been on hold for months by a succession of conservative Senators.

The hold knows no partisan or ideological bounds, however. In 2001, President Bush’s nominations of John Negroponte to be U.N. ambassador and John Walters to be drug czar were subject to anonymous holds. And then-Sen. Jesse Helms (R-N.C.) held the nominations of four top Bush administration Treasury Department officials, including Deputy Secretary Ken Dam, as leverage to help him protect the North Carolina textile industry.

The hold today is intimately linked with the filibuster. In technical terms, a Senator places a hold by notifying Senate leaders that he or she will filibuster a nomination or bill if it is brought to the floor. Rather than lose control over the Senate’s schedule, through repeated delays and cloture votes, leaders acquiesce. Of course, the practical reality is that few Senators would conduct real filibusters on these nominations or bills — by taking over the floor and talking nonstop for 24 hours at a time. But that, after all, is not how modern filibusters work. They involve no pain at all — just declare your intention to filibuster, and the bar is automatically lifted to 60 votes, or in the case of most holds, with no vote allowed even if 99 Senators want it. (In the case of the Craig hostages, we are talking most likely about a unanimous voice vote if and when these hapless Air Force warriors are released from bondage.)

This abuse of power is easy to stop. All it takes is the two party leaders to tell their colleagues that no hold will last longer than two weeks, and if Senators want to filibuster, they are welcome to take the floor and try. Sounds easy, doesn’t it? But no leader has been willing to do this, because no matter how strong one’s leadership, you still need followers behind you. And this kind of step would bring wholesale revolt among the pampered, spoiled ego-trippers in the Senate who don’t want to lose this weapon.

Here is where my version of filibuster reform comes in. There are some issues and some nominations that rise to the level of controversy and importance that they are worthy of filibusters. When they occur, let the Senators trying to block the nominations or bills take to the floor, bring the body to a halt, and see where the confrontation goes. Virtually none of the nominations above, put on hold for months or years, reach that level. No leader has been willing to apply the filibuster technique of old — let’s see how many Mr. Smiths there are in the Senate, with the intestinal fortitude to take to the floor for dozens of hours, and how many of their colleagues will back them up when the issue is not of burning national importance.

Indeed, what characterizes virtually all of these holds on nominations is that the nominations were noncontroversial. Few if any questioned the credentials, background, suitability, ideology or integrity of Holbrooke, Negroponte, Dam, et al, much less the Air Force generals and majors now twisting in the wind. In these cases, if individual Senators threaten filibuster and put holds on, let the hold persist for two weeks — followed by an automatic cloture vote requiring 60 to stop debate and move to a vote. If that fails, allow another two weeks, followed by another automatic cloture vote requiring 55 votes to stop debate. And if that fails, allow a final two weeks, followed by a cloture vote requiring a simple majority. This kind of process would sort out the wheat from the chaff and stop the wholly objectionable process of hostage taking.

It is tough enough to get and keep good people in public service to have the additional ignominy of being thrown into limbo for indefinite periods for reasons wholly unrelated to their qualifications. An indefinite hold placed on Peter Burleigh, one of our finest career diplomats, to be ambassador to the Philippines, finally led him to quit the foreign service in disgust. Hostage holds are wholly obnoxious. It is time to put an end to them. It is time for Lott to lead the way, for Majority Leader Bill Frist (R-Tenn.) and Minority Leader Tom Daschle (D-S.D.) to step up, and time for the rest of the Senate to behave like adults.