Congressional Record: November 20, 2003 (Senate)
Page S15252-S15255
ENDING SECRET HOLDS
Mr. WYDEN. Madam President, my good friend from Montana and I have
worked together on so many issues. He has objected to this bipartisan
resolution which would give the Senate a chance to end one of the most
pernicious practices in Washington, DC, and that is the practice of
secret holds.
Walk down Main Street anywhere in the United States, and I bet you
would not find one out of a million Americans who know what a secret
hold is. The hold does not appear anywhere in the dictionary. It is not
even in the Senate rules. Yet it is one of the most powerful weapons
that any U.S. Senator has. It is, of course, a senatorial courtesy
whereby one Senator can block action on a bill or nomination by telling
the respective Democrat or Republican leader that he or she would
object. The objection does not have to be written down, and it does not
have to be made public.
It is a little bit like the seventh inning stretch in baseball. There
is no official rule or regulation that talks about it, but it has been
observed for so long that it has become a tradition.
Now, the capacity to use this hold, which is in secret--there is no
transparency, no accountability--the prospect of using these secret
holds is notorious and has given birth to several intriguing offspring:
The hostage hold, the rolling hold, and the May West hold. Suffice it
to say, at this time of the year secret holds are more common than
acorns around an oak tree.
Senator Grassley and I have been working on this for almost 7 years.
I am extremely proud that the chairman of the Rules Committee, Senator
Lott, has joined us on this matter. Senator Byrd is a cosponsor. There
is no one in this body who has a better understanding of the rules than
Senator Byrd, and Senator Byrd has made it clear this practice is out
of hand. It is out of hand because the rules are designed to expedite
the business of the Senate and not hold it up.
What we heard earlier in the objection to the effort to end secret
holds is emblematic of what has happened. The objection was based on
the idea that now was not a good time for the Senate to address this.
It is never a good time to address it if you are in favor of doing
business behind closed doors. If you are in favor of doing the public's
business without accountability, it is never a good time. If you are in
favor of doing business in secret, of course, we are never going to
bring it up in the Senate.
The minority leader, Senator Daschle, has been supportive of this
effort from the very beginning. From the very first day I went to him
to discuss this, he said: You are right. The hold is an important power
for a member of the Senate, but it ought to be exercised with some
accountability.
So there was no objection from this side of the aisle. Unfortunately,
we had an objection from the other side. I
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think it is unfortunate because I have sought throughout--throughout--
to make this a bipartisan effort.
Chairman Grassley and Chairman Lott deserve an extraordinary amount
of credit for the effort to work with me and with others on this issue.
The fact is, during this time of the session, one Member of the Senate
can spend days asking all 99 other Senators whether they have a secret
hold, only to find that Senator does not even know about the secret
hold because it was generated by staff.
The Senator who can successfully track down and lift the last secret
hold almost feels around here as if they have won the national title.
Every Senator has a favorite example of torturous search for the
sponsor of a secret hold. My favorite was during the Rules Committee
hearing on holds, Senator Dodd--by the way, who, is very supportive,
like Chairman Lott, of this proposal--we heard about the chairman
trying to call Senators in airports around the country, trying to find
out who had a hold on a bill. Senator Dodd was concerned about this
when he was faced with his election reform bill.
I went through the very same exercise on the spam bill where I had to
literally go from desk to desk in the Senate to find out who was
holding up a measure that everybody was for. Everybody said they were
against spam but there were holds, and we had to try to figure out
where they were.
The same thing happened on the Internet tax bill. At one time there
were seven holds on the Internet tax bill. When I tried to find out
which Senators had the holds, I was told that this information would
not be shared with me.
Think about the consequences of not dealing with that issue. I say to
my colleagues, we may have a virtual ``Grinch'' visiting the consumers
of this country because the Senate has not dealt with the Internet tax
issue. Come the holiday season, if some States and localities choose to
do it, they can go out and tax e-mail, they can go out and tax Internet
services that are delivered through wireless devices or DSL because the
Senate has not updated the law. I believe it has not updated the law
because there was not the opportunity to have a real debate, and we
were held up because there were secret holds.
I am very pleased that the distinguished chairman of the Rules
Committee has come to the Chamber to join me in this effort. Perhaps
more than any other Member of this body, he understands the
implications of this because of his service as chairman of the Rules
Committee as well as having served as the distinguished majority leader
of this body. He has held hearings on this issue. He reached out to
Senator Byrd and Senator Grassley.
We have been working on this issue for years and years. At this time
of the session, the secret hold is all powerful. It is one of the most
powerful weapons that a Member of Congress has. We do not seek to have
it stripped from the Senate. We do not come together on a bipartisan
basis to say, let us outlaw the holds. We come together--Chairman Lott,
Senator Grassley, Senator Byrd, and myself--to say: There ought to be
some sunshine.
Our proposal is for sunshine holds, for saying that the powers
exercised by a Member of the Senate should be accompanied by some
accountability. You ought to be straight with your constituents.
My good friend, the chairman of the committee, is here. I would like,
without losing the remainder of our time, to yield to the distinguished
chairman of the Rules Committee, who has been so supportive of the
effort to end secret holds, so he could make his remarks, knowing he
has a very busy schedule.
The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so
ordered. The Senator from Mississippi.
Mr. LOTT. Mr. President, could I inquire about what time remains for
Senator Wyden?
The PRESIDING OFFICER. Twelve minutes twenty seconds are remaining.
Mr. LOTT. Thank you very much, Mr. President.
I believe this is an issue whose time has come in the Senate. It is
an issue I am very familiar with because I have dealt with holds, both
as a Senator as a leader. I have placed holds, and probably over the
years some of them have been anonymous, not so much out of intent, just
that is the way it was.
I remember talking to Senator Wyden years ago, and Senator Grassley,
about what we could do to have a better understanding of what a hold is
and how it works and what could we do to stop the anonymous holds.
Senator Daschle and I even got together on a letter and tried to
clarify how holds should be handled, and what they mean, and how
Members should deal with them, by telling the committee chairman or the
sponsor of legislation that they had a hold. But there was no
enforcement mechanism, so it did not happen.
At this time of year, holds are particularly a problem for the
leadership. Republican or Democrat, this is not a partisan issue
because when they pop up right at the end of the session, it could be
unrelated to the nominee, unrelated to the bill. They can be a part of
a rolling hold. But with all the warts of the hold, it is something
Senators prize, maybe even treasure. But I do not see how anybody can
defend them being anonymous.
If there is a secret hold on a bill or a nominee, and it is just at
this time of year, it is almost impossible for the leadership to deal
with it. The leader, he tries to track down who has the hold, and
sometimes the staff will not even tell you who has the hold because
they have a problem.
I can remember tracking down Senators in their hideouts, finding
Senators in airports, saying: Please, this is the Deputy Secretary of
State or this is a Commissioner who needs to be confirmed.
It is not good for the institution. I think someday we should even
look at the whole practice of holds. You have an institution where one
Senator--one Senator alone--particularly at the end of a session, can
defeat a nominee or a bill anonymously. There is something wrong with
that. You are putting your constituency or the constituencies of others
and 99 Senators at the mercy of one.
There is this feeling here in the institution that we cannot touch
the traditions or the precedents or the rules of the Senate. They are
sacrosanct. They are holy. How do you think they got there? Changes
were made. Improvements were made. Or problems were created.
So that is why I do commend Senator Wyden and Senator Grassley for
being doggedly persistent on this issue. I do not wish to be a part of
a process or an effort that causes difficulty for the leaders. They
have enough problems now. They are concerned with the Energy bill, the
omnibus bill, the Medicare prescription drug bill, the FAA bill--you
name it. So I do not want to contribute to their problems.
But I do think something needs to be done here. I think we need to
address the overall issue of holds, but at the very minimum we should
have some way to deal with secret holds.
When we sent the letter, as I suggested earlier, we required Members
to notify the sponsor of the legislation, the committee of
jurisdiction, and the leaders of their hold. It had a little effect for
a little while. Senators sort of said: Oh, yeah. OK.
By the way, what is a hold? A hold is a notice by the Senator--to the
staff, usually--that before a nominee or bill is brought up, they want
to be notified so they can debate it or so they can reserve all rights
to amendments. That is all it really is.
Now, if it is anonymous, that makes it even more damaging. But it is
a problem for the leader because you try to get the work completed, and
the threat of a filibuster or endless amendments basically kills it. So
since there was no enforcement mechanism, it just did not accomplish
what we wanted it to accomplish.
This resolution would place a greater responsibility on Senators to
make their holds public. It creates a standing order that would stay in
effect until the end of this Congress. This is something that Senator
Byrd had suggested, that maybe was the solution that would do the job.
We can see how it works. Let's make it a standing order, not change the
rules. Let's make it apply to the rest of this Congress, which would be
next year. If it works, great, we might want to build on it. If it does
not, it is dead.
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The order requires that the majority and the minority leaders can
only recognize a hold that is provided in writing. I put a hold on a
nominee today. I said: Please put a hold on this nominee. Letter will
follow. So I put it in writing and it is not a secret thing.
Moreover, for the hold to be honored, the Senator objecting would
have to publish his objection in the Congressional Record three days
after the notice is provided to the leader. That is critical: notice.
That is all really we are looking for here: Understand what a hold is;
put it in writing; and make it well known.
A hold should be left to the wrestling ring, not to the Senate, and
it certainly should not be in secret.
I hope the leadership, Senator Frist and Senator Daschle, will work
with Senator Wyden and Senator Grassley to find a solution that will
allow us to do this. The light of day always has a purifying effect.
This is getting to be very moldy. We need to deal with it. Again, I
emphasize, I am for this because I think it would be good for the
institution. I am for it because I think it is the right thing to do. I
am not for it because I am trying to cause problems with the leaders.
Heaven forbid, I don't want to do that. Actually, we are trying to help
them deal with a problem. They are hesitant to do it because I know
Senators are going to slip up next to them and say: Wait a minute, you
may not want to change anything here. This is the way it has been done.
I challenge the Senators to stand up here and say they should not at
least make it public. We can't have cowardice on something that is
affecting people's lives and on legislation that affects our country.
I guess I am getting a little carried away. I agree with the Senator.
I am going to continue to work to try to find a way to be helpful in
getting this issue addressed because I think it is time we do it.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, how much time remains under my control?
The PRESIDING OFFICER. Twelve minutes 20 seconds remain.
Mr. WYDEN. I thank the Chair.
Mr. KYL. Will the Senator yield for a question?
Mr. WYDEN. I am happy to yield without losing my time.
Mr. KYL. Mr. President, I ask unanimous consent that following the
Senator from Oregon, at the conclusion of his remarks, the order of
speaking be Senator Sununu for 15 minutes, Senator Lautenberg for 15
minutes, Senator Murkowski for 15 minutes, Senator Cantwell for 30
minutes, and Senator Kyl for 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Oregon.
Mr. WYDEN. Mr. President, before he leaves the floor, I thank the
distinguished chairman of the Rules Committee for his eloquent
statement. He has been so supportive of this effort. Essentially what
he and I and Senator Grassley have been talking about is the quaint
notion that the public's business ought to be done in public. This is
not a complicated idea.
As I have mentioned earlier, I am sure the vast majority of Americans
have no idea what a secret hold is. It is not written down anywhere.
This is something you wouldn't find 1 of 1,000 people having any idea
about. But this is, in fact, one of the most powerful weapons, one of
the most significant tools a Member of this body could possibly have.
It is utilized without any accountability whatsoever.
The distinguished chairman of the Rules Committee pointed out in
hearings, and we heard it echoed by Senator Dodd, the bizarre kind of
process of trying to track down Senators who are thousands of miles
away from Capitol Hill and still claiming to have an objection when, in
a lot of instances, they may not even know about it; their staff will
have objected to it.
So what we have sought to do in this effort is to not limit the
powers of any Member of the Senate but simply to say that power ought
to be accompanied by responsibility. Yes, there should be rights. There
ought to be rights of every Member of the Senate to stand up and be
heard on matters important to their constituents and to this country.
But there also ought to be responsibilities.
Chairman Lott has addressed this issue very eloquently by saying one
of our most important responsibilities is to let the public see what we
are up to. Yes, sunlight is the best disinfectant, but it is especially
important, as Chairman Lott has noted, at the end of a session.
If someone exercises a hold in the beginning of a session, there is
an opportunity, as the distinguished chairman of the committee has
noted, for the leaders to come together with the chairs and work out an
effort to resolve a matter in a process that is fair to all sides.
When you are down to the last few days of a session and you are
talking about a measure that may involve billions of dollars, the well-
being of millions of our citizens, someone can exercise the power to
hold up the public's business without any accountability whatsoever.
What happens is then the leaders and the chairs traipse all over here,
practically going almost the equivalent of door to door, desk to desk
on the Senate floor. It got to a point, when I was trying to deal with
one particularly exasperating hold, where a Senator came up to me and
apologized because he was told there was a hold about which I was
concerned. He said: I knew nothing about it. It was put on by a staff
person. I asked for its removal.
There are a variety of technical issues on which Chairman Lott and
Chairman Grassley and Senator Byrd and I have worked. There is a
difference between a consult and a hold. A consult, in effect, is just
a request to be informed when a measure is going to be brought up. A
hold is something different. A hold is when you want to shut down the
effort to go forward and examine an important issue altogether. It is
all powerful in the last few days of a session, as the distinguished
chairman of the Rules Committee, Senator Lott, has noted.
There is something very wrong with the process when, in effect, you
have to traipse all over the Senate trying to figure out whether or not
your measure is going to see the light of day.
We have had an objection to our bipartisan effort today, but I think
I speak for all of the sponsors when I say we are going to be back at
it. Chairman Lott has initiated a very important process in the Rules
Committee to examine some of the antiquated practices of the Senate.
The holds is one that we see working great injury in the last days of a
session. But under the leadership of Chairman Lott, we are going to be
looking at other practices in the Rules Committee. I think that is long
overdue. I have great confidence that the chairs, Chairman Lott,
Chairman Grassley, Senator Byrd, who knows more about the rules of the
Senate than I could ever dream of knowing, are going to be able to work
with us on a bipartisan basis to address this responsibly.
We have done that. We have asked only that this be done for the rest
of this session. I personally do not believe Western civilization is
going to come to an end because a Member of the Senate has to be clear
about whether or not they are holding up the public's business. But to
make it absolutely clear what would transpire, we have in effect a test
period, as Chairman Lott has described it, to examine the effect of our
sunshine holds, a process that would end some of the stealth and
secrecy that surround this issue.
I ask unanimous consent to add Senator Dayton as a cosponsor of S.
Res. 216.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WYDEN. I see Senator Lott and other colleagues have other
business to attend to. I will wrap up only by quoting the foremost
authority on Senate rules who served as majority leader of the 95th,
96th and 100th Congresses; that is, our friend and colleague, Senator
Robert C. Byrd. In chapter 28, ``Reflections of a Party Leader,''
volume 2 of his publication in the Senate, Senator Byrd wrote:
To me, the Senate's rules were to be used when necessary to
advance and to expedite the Senate's business.
Giving the sunshine hold a place in the Senate's rules, creating
sunshine holds so as to ensure that there is new openness and new
accountability in the way the Senate does its business, seems to me to
be an ideal way for the Senate to honor those eloquent words of Senator
Byrd.
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We have not been successful today, despite the best effort of
Chairman Lott, Senator Grassley, and others. But we will be back. This
practice is continuing to increase. Even when I came to the Senate, I
found it used frequently but not to the extent it is being used today.
It is time to do the public's business in public. We will stay at this
effort to accomplish just that.
I yield the floor.
Mr. GRASSLEY. Mr. President, I rise in support of the resolution to
end secret holds in the Senate. Senator Wyden and I have worked long
and hard on this issue and it is time for the Senate to act decisively
to reject the practice of placing anonymous holds.
A hold, which allows a single Senator to prevent a bill or nomination
from coming to the floor, is a very powerful tool. Holds are a function
of the rules and traditions of the Senate and they can be used for
legitimate purposes. However, I believe in the principle of open
government. Lack of transparency in the public policy process leads to
cynicism and distrust of public officials. I would maintain that the
use of secret holds damages public confidence in the institution of the
Senate.
Our resolution would establish a standing order for the remainder of
this Congress that holds must be disclosed publicly. For my colleagues
who might be apprehensive of this change in doing business, I would
point out that this measure would only be in effect for the current
Congress and would not formally amend the Senate rules. Nevertheless, a
standing order has essentially the same force and effect in practice as
a Senate rule. I have no doubt that, once instituted, this reform will
be found to be sound and no reason will be found why it shouldn't be
renewed in subsequent Congresses.
For several years now, I have made it my practice to publicly
disclose any hold I place in the Congressional Record, along with a
short explanation. It's quick, easy and painless, I assure my
colleagues. Our proposed standing order would provide for a simple form
to fill out, like adding a cosponsor to a bill. The hold will then be
published in the Congressional Record and the Senate calendar. It is as
simple as that.
I am very pleased to have the support of Chairman Lott and Senator
Byrd on this initiative to require public disclosure of holds. Earlier
this year, Chairman Lott held a hearing in the Rules Committee on the
Grassley-Wyden resolution to require disclosure of holds. Since that
time, my staff has worked together with staff members for Senators
Wyden, Lott, and Byrd to come up with what I think is a very well
thought out proposal to require public disclosure of holds on
legislation or nominations in the Senate. I think it says a lot that
this proposal was written with the help and support of Senator Lott and
Senator Byrd. As the chairman of the Rules Committee and a former
majority leader, Senator Lott brings valuable perspective and
experience. It is also a great honor to be able to work on this issue
with Senator Byrd, who is also a former majority leader and an expert
on Senate rules and procedure.
I am disappointed that we cannot move forward with this resolution
now, but I would urge my colleagues to join the growing coalition of
Senators who are working to shed some sunlight on some of the most
shadowy parts of this body so that we can ensure open and honest debate
on the issues before the American people. I believe that the more we
talk about secret holds, the more the consensus grows that this is an
issue that must ultimately be addressed by the full Senate. You can be
assured that we will keep pushing forward until that happens.
The PRESIDING OFFICER. The Senator from New Hampshire is recognized
for 15 minutes.
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