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Sloan: Secret Holds Are Filibuster’s Silent Partner in Stalling

As the Senate continues to wrangle over the details of the rules package it will soon take up, all of the attention appears to have centered on one obstructionist tactic: the filibuster. While my organization, Citizens for Responsibility and Ethics in Washington, strongly supports filibuster changes, another invisible tactic is also used to impede Senate business: the secret hold.

In 2007, Congress passed the Honest Leadership and Open Government Act, hailed at the time as landmark ethics and transparency legislation. Notably, Section 512 of the law requires senators to reveal when they are “intending to object to a proceeding” — a parliamentary maneuver more commonly known as a “hold.” This move is frequently used to stall pieces of legislation and nominations, block votes or extract concessions. Notably, the 2007 law marked the first time the Senate had agreed to alter the “secret” aspect of the holds process, but it failed to include any kind of enforcement mechanism.

Two years later, after CREW’s research revealed that senators routinely violated the ban, we sent a letter to the Senate Ethics Committee asking it to investigate and discipline senators for continuing to place secret holds. We also suggested the committee offer guidance regarding the application of the prohibition.

The committee’s response? Violations of Senate parliamentary procedure are “outside the limited jurisdiction of the Committee.” In other words, the ban was meaningless. In 2011, thanks to the concerted efforts of Sens. Ron Wyden, D-Ore., and Charles E. Grassley, R-Iowa, the Senate passed a resolution again attempting to tighten the rules, this time requiring senators to submit holds to their party leader and in writing to both the Congressional Record and the Senate legislative clerk within two days.

As CREW’s latest research shows, however, senators continue to employ secret holds to anonymously stall, and at times kill, crucial nominations and legislation. Over the past three years, there have been only 20 instances of a “notice of intent to object” placed in the Senate Calendar of Business — more than half by Grassley and Wyden — but secret holds appear to have been placed on numerous other bills and nominations contrary to the agreed-upon rule.

Secret holds have delayed the confirmation of nominees for jobs at critical agencies including the Federal Reserve, the Treasury Department and the Office on Violence Against Women. Notably, a secret hold was responsible for holding up the confirmation of Robert Ford, President Barack Obama’s nominee to be ambassador to Syria, for more than a year. Legislatively, secret holds have delayed bills ranging from aid for earthquake-stricken Haiti to the Whistleblower Protection Enhancement Act, from a cost-of-living adjustment for veterans’ compensation to funds reimbursing local police departments for buying bulletproof vests.

While senators certainly are entitled to hold nominees and legislation and to have their concerns addressed, they should not be able to do so in secret, forcing voters to guess who is responsible and why. In a democracy, the public must be able to hold elected leaders accountable for their actions. The anonymity offered by secret holds allows senators to avoid potential consequences for their conduct.

As the Senate considers rule changes for the 113th Congress, CREW proposes that Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., explicitly authorize the Ethics Committee to investigate and discipline senators who employ secret holds in violation of Senate rules.

Absent such an enforcement mechanism, senators will continue to shamelessly violate the ban. In fact, if filibuster changes are adopted, we might even see an increase in the use of secret holds as senators attempt to thwart consideration of bills and nominations they oppose.

Americans yearn for a government that faces our nation’s many challenges head-on. Given the Capitol’s abject dysfunction, is it any wonder Congress is less popular than lice? Curbing the use of procedural maneuvers such as secret holds and the filibuster that do little more than impede consideration of the people’s business is one step the Senate can take on the long road back to restoring public confidence in Congress.

Melanie Sloan is executive director of Citizens for Responsibility and Ethics in Washington.

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