I just watched quite the spectacle on the Senate floor. Senator Claire McCaskill attempted to get unanimous consent to the confirmation of 12-15 nominees to various government agencies who have been subject to secret holds despite receiving no objection from anyone in the committees of jurisdiction. I believe that Sen. Jon Kyl allowed the first name to be confirmed and then objected to all the rest of them. He claimed that he did not personally have a secret hold on any of the nominees and that the leaders were working out (debate) time agreements so he had to object to simply confirming them by unanimous consent. Majority Whip Dick Durbin then stood up and asked McCaskill if it was true that Reid had any objection to confirming her list of nominees. She said it wasn’t and Kyl went on objecting anyway ‘for the same reasons’ he had stated before.
So, what’s a secret hold?
A secret hold is a parliamentary procedure within the Standing Rules of the United States Senate that allows one or more Senators to prevent a motion from reaching a vote on the Senate floor. If the Senator provides notice privately to his or her party leadership of their intent (and the party leadership agrees) then the hold is known as a secret or anonymous hold…
…Sections 2 and 3 of Rule VII (Morning Business) of the Standing Rules of the Senate outline the procedure for bringing motions to the floor of the Senate. Under these rules, “no motion to proceed to the consideration of any bill…shall be entertained…unless by unanimous consent”. In practice, this means that a Senator may privately provide notice to his/her party leadership of intent to object to a motion. At that point, the motion cannot proceed because unanimous consent has not been reached, even though the Senator has not publicly announced his/her intent to object. This allows a Senator to remain anonymous while preventing the motion from going forward.
The original intent of these sections was to protect a Senator’s right to be consulted on legislation that affected the Senator’s state or that he/she had a great interest in. The ability to place a hold would allow that Senator an opportunity to study the legislation and to reflect on what it means before moving forward with further debate and voting.
Holds, like filibusters, can be defeated through cloture; however, the time required to bring around a cloture vote often allows fewer than 40 senators to block unimportant legislation when the majority is not willing to force the vote.
I’m not sure how the ‘secret’ part of it was ever necessary to protect a senator’s right to study legislation. The Congress passed the Honest Leadership and Open Government Act in 2007 requiring public notification of a hold within six days, but the Senate has simply ignored the law and it refuses all pressure to enforce it.
Here’s the language:
(Sec. 512) Requires the Majority and Minority Leaders of the Senate (or their designees) to 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) submits such notice in writing to the appropriate leader (or designee) following the objection to a unanimous consent to proceeding to, and, or passage of, a measure or matter on their behalf; and
(2) within six session days afterwards submits a similar notice for inclusion in the Congressional Record and in the applicable calendar.
Requires the Secretary of the Senate to establish, for both the Senate Calendar of Business and the Senate Executive Calendar, a separate section entitled “Notice of Intent to Object to Proceeding,” containing the name of each Senator filing the notice, the measure or matter objected to, and the date the objection was filed.
Authorizes a Senator to have such an item removed from a calendar upon submitting to the Congressional Record a statement of non-objection.
As CREW director Melanie Sloan said recently after the Senate Ethics Committee turned down her request that they enforce the law:
If the ethics committee can’t enforce a ban on secret holds enacted by the Senate just a couple of years ago, then the ban was clearly nothing more than a sham from the get go. The Senate tried to pawn off this ban to an American public fed up with congressional inaction and secrecy as real change. Now we learn the truth: the ban – like so much that comes out of senators’ mouths — is meaningless. Was the ban part of “honest leadership” or “open government”? Seems like a tossup.
Sen. McCaskill finished her presentation on the Senate floor by putting everyone on notice that she expects publication of who is putting secret holds on these nominees and why in six days time. And she announced her intention of forcing the issue on more nominees for the rest of the week.