Congressional Record: August 1, 2003 (Senate)
Page S10923-S10926
SUBMITTED RESOLUTIONS
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SENATE RESOLUTION 216--ESTABLISHING AS A STANDING ORDER OF THE SENATE A
REQUIREMENT THAT A SENATOR PUBLICLY DISCLOSES A NOTICE OF INTENT TO
OBJECT TO PROCEEDING TO ANY MEASURE OR MATTER
Mr. LOTT (for himself, Mr. Byrd, Mr. Grassley, and Mr. Wyden)
submitted the following resolution; which was referred to the Committee
on Rules and Administration:
S. Res. 216
Resolved, That (a) the majority and minority leaders of the
Senate or their designees shall 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 the notice of intent in writing to the
appropriate leader or their designee, and
(2) submits, within 3 session days after the submission
under paragraph (1), the following notice for inclusion in
the Congressional Record and in the applicable calendar
section described in subsection (b):
"I, Senator ____, intend to object to proceeding to ____,
dated ____."
(b) The Secretary of the Senate shall establish for both
the Senate Calendar of Business and the Senate Executive
Calendar a separate section entitled "Notices of Intent to
Object to Proceeding". Each such section shall include the
name of each Senator filing a notice under subsection (a)(2),
the measure or matter covered by the calendar which the
Senator objects to, and the date the objection was filed.
(c) A Senator may have an item with respect to the Senator
removed from a calendar to which it was added under
subsection (b) by submitting the following notice for
inclusion in the Congressional Record:
"I, Senator ____, do not object to proceeding to ____,
dated ____."
(d) This resolution shall apply during the portion of the
108th Congress after the date of the adoption of this
resolution.
Mr. LOTT. Mr. President, today I am submitting a resolution that
addresses the issue of anonymous "holds" that Senators use to prevent
consideration of legislation and nominations. I am pleased to be joined
in this effort by the distinguished former Majority Leader, Senator
Byrd, along with the Chairman of the Finance Committee, Senator
Grassley, and the distinguished Senator from Oregon, Senator Wyden.
The resolution we are submitting today builds on the work of Senators
Grassley and Wyden who have pursued this issue for years. On June 17, I
chaired a hearing at the Rules Committee to consider a resolution, S.
Res. 151, that Senators Grassley and Wyden introduced that would have
amended the Senate's Rules to require the publication of the names of
Senators who have placed holds on legislation or nominations.
Many Senators and witnesses who testified before the Committee
expressed concern about the propriety of incorporating an informal
custom designed to obstruct--the hold--in the Senate's rules. Others
were concerned that there could be unintended consequences to making
this permanent change in the rules of the Senate.
As a result of that hearing, I worked with the sponsors of the
resolution and with Senator Byrd to develop what we believe is an
appropriate way to resolve the problem of anonymous holds. The
resolution we are introducing today reflects that work.
During my tenure as Majority Leader, I, along with Senator Daschle
attempted to address the issue of secret holds. We sent a letter to all
Senators and indicated that members placing holds on legislation or
nominations would have to notify the sponsor of the legislation, the
committee of jurisdiction, and the leaders. Unfortunately, we had no
mechanism to enforce those requirements and secret holds continue to
plague the Senate.
The resolution we are submitting today would place a greater
responsibility on Senators to make their holds public. Our resolution
creates a Standing Order that would stay in effect until the end of the
108th Congress. The Order requires that the majority and minority
leaders can only recognize a hold that is provided in writing. 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 a leader.
New sections would be created in the Legislative and Executive
Calendars that would identify the names of Senators with holds on
particular measures and nominations. The order also provides a brief
written format that a Senator must use to indicate his opposition to
proceeding. In addition, a format is provided to remove a hold.
I believe that holds, whether anonymous, or publicly announced, are
an affront to the Senate, the leadership, the Committees and to the
individual members of this institution. As leader, I could not
establish a rational and timely agenda for the institution to perform
its business without having to first consult with, effectively, every
other member of the Senate.
One day, a Senator would have a hold on a bill and after I convinced
him to lift the hold, the next day I was told another Senator had
placed a hold on the same bill. And don't get me wrong, these weren't
just holds from Democrats, they were holds from some of my best friends
on this side of the aisle.
This Order does not eliminate the right of a Senator to place a hold.
Some day, the Senate may decide that holds, in and of themselves, are
an undemocratic practice that should no longer be recognized. I, for
one, would consider eliminating the hold, by for example, limiting
debate on the motion to proceed. However, I believe before we consider
such a drastic step, we should, at the very least, eliminate the secret
hold and I believe this Order will achieve that goal.
Secret holds have no place in a publicly accountable institution. A
measure that is important to a majority of the American public and a
majority of Senators can be stopped dead in it's tracks by a single
Senator. And when that Senator can hide behind the anonymous hold,
democracy itself is damaged.
How do you tell your constituents that legislation they have an
interest in, legislation that has been approved by the majority of a
committee, is stalled and you don't know who is holding it up? What
does that say about this institution? I think the secret hold has no
place in this revered institution.
I believe that if we adopt this Resolution, the public will have
greater trust in the Senate. Secrecy and anonymity in an institution of
the people does not engender trust among our constituents. Holds belong
in the wrestling ring, not in this hallowed chamber.
This resolution is an experiment in making the Senate and Senators
more accountable. At the end of the 108th Congress, the Senate will be
able to determine whether it wants to make this a permanent Standing
Order or whether it wants to modify the Order. I hope my colleagues
will give the Senate the opportunity to see if this approach will
eliminate the secrecy surrounding holds and facilitate dialogue that
breaks the logjam on legislating in this body.
I ask unanimous consent that the text a copy of the February, 1999,
letter I sent with Senator Daschle be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
U.S. Senate,
Washington, DC, February 25, 1999.
Dear Colleague: As the 106th Congress begins, we wish to
clarify to all colleagues, procedures governing the use of
holds during the new legislative session. All Senators should
remember the Grassley and Wyden initiative, calling for a
Senator to "provide
[[Page S10924]]
notice to leadership of his or her intention to object to
proceeding to a motion or matter [and] disclose the hold in
the Congressional Record."
While we believe that all members will agree this practice
of "secret holds" has been a Senatorial courtesy extended
by party Leaders for many Congresses, it is our intention to
address some concerns raised regarding this practice.
Therefore, at the beginning of the first session of the
106th Congress, all members wishing to place a hold on any
legislation or executive calendar business shall notify the
sponsor of the legislation and the committee of jurisdiction
of their concerns. Further, written notification should be
provided to the respective Leader stating their intentions
regarding the bill or nomination. Holds placed on items by a
member of a personal or committee staff will not be honored
unless accompanied by a written notification from the
objecting Senator by the end of the following business day.
We look forward to working with you to produce a successful
new Congress.
Best regards,
Trent Lott
Majority Leader, U.S. Senate
Tom Daschle
Democratic Leader, U.S. Senate.
Mr. GRASSLEY. Mr. President, I rise to say just a few words about the
Senate Resolution being submitted today by Senator Lott along with the
distinguished Senator from West Virginia, Senator Byrd, myself and
Senator Wyden. This resolution aims to end the practice of secret holds
in the Senate; an issue on which Senator Wyden and I have worked long
and hard.
On May 21 of this year, I resubmitted with Senator Wyden our simple
resolution to amend the Senate Rules to require Senators placing a hold
to make that hold public in the Congressional Record. I was very
pleased by the support and encouragement we received from Chairman
Lott, who subsequently held a hearing on our resolution in the Senate
Rules Committee. This was a very positive step in bringing this issue
to the forefront. In fact, I was gratified by the many positive
comments and expressions of interest from members of the Rules
Committee in response to the testimony from myself and Senator Wyden.
Following the hearing, my staff and Senator Wyden's staff were able
to engage in very productive discussions with Chairman Lott's staff and
staff for Ranking Member Dodd and Senator Byrd. The product of those
discussions is this resolution and I'm very pleased with the result.
This resolution is a little longer and not as simple as our original
resolution, but it does precisely what Senator Wyden and I have been
seeking. In some ways it is even better than what we started with.
Unlike our previous resolution, this measure establishes a standing
order instead of amending the Senate Rules. Some Senators are
understandably nervous about making a permanent change to the Senate
Rules. In fact, this order is only written for the remainder of the
108th Congress to allow Senators to see what effect this change has in
practice before deciding whether to renew to requirement or make
changes. Nevertheless, it's important to point out that a standing
order has essentially the same force and effort in practice as a Senate
Rule. Also, I'm confident based on my own experience in practicing
public disclosure of holds in the Congressional Record, that Senators
will find public holds don't hurt a bit. Therefore, it's my expectation
that this standing order will be renewed in future congresses.
This new standing order would also spell out the exact format and
content required when Senators publish notices of holds so there is no
ambiguity or room for misunderstanding. Having a standard format will
also make it easier in practice for Senators to submit notices of holds
for the Record. It will be as simple as adding a cosponsor to a bill.
Our resolution would also provide for publication in the Senate
Calendars of notices of holds on legislation or nominees as well as a
standard procedure for removing a Senator's name from the calendar when
a hold is released.
One other change we made from our previous resolution was to allow
for three session days instead of two after a hold has been placed for
the public notice to be included in the Record. I want to be clear that
I support immediate public disclosure of holds because I believe in the
principle of open government and I can find no legitimate reason why a
Senator placing a hold should remain anonymous. However, it's necessary
to allow for a short window of time to permit Senators and their staff
to prepare a notice and submit it for the Record. I've found that two
session days has been more than adequate for myself and my staff, but
not all Senators' offices are the same. Senator Byrd suggested that
three session days might be more appropriate and since the practice of
disclosing holds will be uncharted territory at first for most
Senators, a deadline of three session days to publish holds seems
reasonable.
I should add at this time that I'm very honored to have the support
of Senator Byrd on this initiative. No one knows Senate procedure
better or has more institutional knowledge of the Senate than Senator
Byrd. Both he and Senator Lott have a unique understanding of the
problem of secret holds, having both served as Senate Majority Leader.
Having Senator Byrd's name on this resolution should send a strong
message to the Senate that secret holds are a serious problem that
should be dealt with for the good of the Senate as an institution.
I believe that this change will lead to more open dialogue and more
constructive debate in the Senate. Moreover, it will make the Senate
process more transparent and reduce public cynicism. I look forward to
continuing to work with Senator Lott, Senator Byrd, and the rest of the
Rules Committee to move this needed reform through the legislative
process.
Mr. WYDEN. Mr. President, the submission of this resolution marks a
very important milestone in the seven-year effort I have pursued with
Senator Grassley to bring the Senate practice of holds out of the
shadows and into the sunshine. Throughout this time we have labored as
a bipartisan team to champion the cause of the "sunshine" hold. I
especially want to thank Rules Chairman Lott and the Senate's foremost
authority on the Rules, Senator Byrd, for their commitment to working
with us on this resolution. They know all too well the havoc "secret"
holds can wreak on the Senate agenda.
Whether public or secret, the hold in the Senate is a lot 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. Its capacity to tie the Senate and
Senators in knots is notorious, and it has even given birth to several
intriguing offspring: the hostage hold, the rolling hold and the Mae
West hold.
The secret hold is a practice of Senatorial courtesy extended by the
respective Leaders. Even though it is one of the Senate's most popular
procedures, it cannot be found anywhere in the United States
Constitution or in the Senate Rules. It is one of the most powerful
weapons any Senator can wield in this body, and in its stealth version,
known as the secret hold, it is even more potent.
The target of this resolution is specifically "holds," which we
define as a Senator's intent to object to proceeding to a motion or
matter. The resolution does not deal with so-called "consults," which
are confidential communications between a Senator and the respective
Leader informing the Leader of a Senator's interest in a bill or
nomination. This resolution would say to those who want to kill or stop
a bill or nomination that they must come forward and notify their
respective party leaders. It would not affect the process known as the
"consult" insofar as it is used to alert a Senator when a bill or
nomination is moving toward the floor so that the Senator may prepare
for floor consideration.
The resolution would establish a Senate Temporary Standing Order for
the duration of the 108th Congress allowing "sunshine" holds. The
resolution would require a Senator who wishes to object to a motion or
matter to publish notice of the intent in the Congressional Record
within 3 session days of notifying the respective Leader. The
resolution would in no way limit the privilege of any Senator to place
a "hold" on a measure or matter, it would simply say that the notice
of intent to object to a measure or matter be published.
Throughout the Senate's history some of the most potent weapons--
procedural and otherwise--often have not
[[Page S10925]]
been rules but rather the absence of them.
Beginning in 1997 and again in 1998, the United States Senate voted
unanimously in favor of amendments Senator Grassley and I sponsored to
require that a notice of intent to object be published in the
Congressional Record within 48 hours. The amendments, however, never
survived conference.
So, Senator Grassley and I took our case to the leadership, and to
their credit, Tom Daschle and Trent Lott agreed it was time to make a
change. They recognized the need for more openness in the way the
Senate conducts its business. The leaders sent a joint letter in
February 1999, to all Senators setting forth a policy requiring "all
Senators wishing to place a hold on any legislation or executive
calendar business [to] notify the sponsor or the legislation and the
committee of jurisdiction of their concerns." Their letter said:
"written notification should be provided to the respective Leader
stating their intentions regarding the bill or nomination," and that
"holds placed on items by a member of a personal or committee staff
will not be honored unless accompanied by a written notification from
the objecting Senator by the end of the following business day."
At first, this action seemed to make a real difference: many Senators
were more open about their holds, and staff could no longer slap a hold
on a bill with a quick phone call. But after some time, the clouds
moved in on the sunshine hold, obscuring the progress that had been
achieved. Legislative gridlock resumed, and the Senate seemed to have
forgotten the Lott/Daschle letter.
The problem the Senate faces today is not that a significant number
of our colleagues make their holds public, but that a small number of
Senators do not. It is their abuse of secret holds that contributes to
legislative gridlock. By calling for publication of the intent to
object in the Congressional Record, I believe the resolution puts the
burden where it ought to be: not on the leadership, where it is today,
but squarely on the shoulders of the objector. An objector who seeks to
kill a bill by hiding behind a curtain of secrecy is hurting the
leaders' ability to run the body and is obstructing rather than
facilitating the Senate's business.
Public notice of holds may be an inconvenience for a few, but not a
hardship. In any given week, Senators insert more than two dozen
statements in the Record on subjects such as sports teams winning
championships and charitable fundraisers. These important events should
be recognized, and I would hope that the intent of a Senator to block
action on a bill or nomination would be considered of equal importance.
The sponsors of the resolution have discussed at great length, most
recently at the Rules Committee hearing on the subject, the matter of
enforcement. My sense is that no Senator will ever go to jail for
failing to give public notice of a hold, just as no Senator has gone to
jail for violating the Standing Order adopted in the 98th Congress
requiring Senators to vote from their assigned desks during the
"yeas" and "nays." There are any number of provisions even in the
Senate.
Rules that are not enforced at all or rarely today. Senate Rule XXVI
requires the inclusion of various items of information in written
committee reports, but Senate Rules do not require committees to file
written reports on bills. Senate Rule VII, para. 5, provides committees
shall make every reasonable effort to have printed hearings available
for Senators before a measure comes to the floor for debate, although
the Senate has debated any number of measures without the benefit of a
printed report.
This resolution signals to all members the Senate's preferred manner
of doing business. I think most Senators believe the Senate's business
should be conducted in public, and I think the American people would
agree.
Sunshine holds would strengthen the Leaders' hands as well as their
options. A Leader may opt to continue to honor a secret hold, but a
Leader wishing to move a measure or matter would be under no obligation
to honor a hold unless the objecting Senator had complied with the Rule
and published notice in the Record.
The resolution is constructed so as to become a part of the Temporary
Standing Orders, or the series of unanimous consent agreements that are
renewed at the outset of each new Congress. Because there may be
unintended consequences and because I have no desire to inflict
irreparable harm on the Senate Rules, I deferred to the experience and
wisdom of Senator Byrd whose wise counsel urged that the terms of the
resolution be limited to the 108th Congress. My intent is to revisit
the matter with Senators Grassley, Lott, and Byrd at the end of the
108th Congress to determine the benefits of making the resolution part
of the Senate Rules at that time.
As United States Senators we occupy a position of public trust, and I
believe the exercise of the power that has been vested in us should
always be accompanied by public accountability. I would argue that it
is not the hold, but the anonymity of the hold that is so odious to the
basic premise of our democratic system. The Lott-Byrd-Grassley-Wyden
resolution would bring the anonymous hold out of the shadows of the
Senate. It would assure that the awesome power possessed by an
individual Senator to stop legislation or a nomination would be
accompanied by the sunshine of public accountability.
At its hearing in June, the Rules Committee weighed the merits of the
Grassley-Wyden Resolution, and considered several fundamental
questions: Whether the practice of secret holds is consistent with a
democratic system; whether the elimination of the secrecy would disrupt
the Constitutional balance of power between the various branches of
government; and whether the removal of the secrecy would tip the
balance between the rights of the majority and the minority in the
Senate.
My response is that removing secrecy from the hold will not alter the
practice, merely its form. Removing secrecy from the hold will not tip
the balance in Senate Rules and procedures between majority and
minority rights. And removing the secrecy will not alter the balance of
powers created under the Constitution. On the contrary, surrendering
secrecy will strengthen public accountability and lessen the gridlock
that has increasingly come to plague the world's greatest deliberative
body.
I would like to close by quoting the foremost authority on Senate
Rules, who served as Majority Leader in the 95th, 96th and 100th
Congresses. In Chapter 28, "Reflections of a Party Leader," of Volume
II of The Senate, the Honorable Robert C. Byrd wrote: "To me, the
Senate rules were to be used, when necessary, to advance and expedite
the Senate's business." Giving the sunshine hold a place in the
Senate's Rules would surely serve this worthy goal.
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