[Congressional Record: September 19, 2007 (Senate)]
[Page S11742-S11744]
SECRET HOLDS
Mr. GRASSLEY. Mr. President, the ethics bill has now been signed into
law and, as my colleagues are aware, it contains new requirements about
what we in the Senate call holds, meaning an individual Senator can
hold up a bill all by himself from coming up.
Senators may be wondering what exactly is required under these new
requirements about holds and how it is going to work. As a coauthor of
the original measure, I have to tell my colleagues that I don't know
how it is going to work. The provisions have been rewritten from what
we had originally adopted on the floor of the Senate by a very wide
margin. I am not even sure by whom this has been rewritten because it
was a closed process and Republicans were not invited to participate in
that process.
Now I am trying to understand how these provisions will work. Let me
give a little background.
I have been working for some time, along with Senator Wyden of
Oregon, to end the practice of secret holds through a rules change or
through what we call in the Senate a standing order. I do not believe
there is any legitimate reason a single Senator should be able to
anonymously--I emphasize anonymously--block a bill or nomination. I do
not argue with an individual Senator blocking a bill. I do that myself.
But I do not think it should be secret. We ought to know who is doing
it because the public's business--and the Senate is all about the
public's business; we are on television--the public's business ought to
be public, and we ought to know who that person is. If a Senator has
the guts to place a hold, they ought to have the guts to say who they
are and why they think that bill ought to be held up. If there is a
legitimate reason for a hold, then Senators should have no fear about
it being public.
I am not talking hypothetically; I am speaking from my experience. I
have voluntarily practiced public holds for a decade or more, and I
have had absolutely no cause to regret telling all my colleagues and
the whole country why I am holding up a bill and who Chuck Grassley is
so they can come and talk with me if they want to talk with me about
it, know what the rationale is, and maybe we will want to work
something out.
Through the years, there have been several times when the leaders of
the two parties have agreed to work with Senator Wyden and me to
address this issue, albeit in a way different than what maybe we would
have proposed. I have approached these opportunities with optimism,
only later on to be disappointed.
For instance, in 1999, at the start of the 106th Congress, Majority
Leader Lott and Minority Leader Daschle sent a ``Dear Colleague''
letter to all Senators outlining a new policy that any Senators placing
a hold must notify the sponsor of the legislation and the committee of
jurisdiction. It went on to state that written notification of the
holds should be provided to respective leaders, and staff holds--in
other
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words, staff for the Senator placing holds--would not be honored unless
accompanied by a written notification. All that sounds good if it
worked out that way. But I want to tell my colleagues, this policy
announced in 1999 was quickly forgotten or ignored by Senators, and the
people who could enforce it actually did not enforce it.
Then, recognizing that the previous ``Dear Colleague'' letter was not
effective, Leaders Frist and Daschle sent another ``Dear Colleague''
letter in 2003 that purported to have some sort of enforcement
mechanism. The new policy required notification of the legislation's
sponsor if and only if a member was of their party, as well as
notification of the senior party member on the committee of
jurisdiction. In other words, this new policy required less disclosure
than the previous policy since it only affected holds by members of the
same party. Nonetheless, the leaders promised that if the disclosure
was not made, they would disclose the hold. It also reiterated that
staff holds would not be honored unless accompanied by written
notification.
That policy had more holes in it than Swiss cheese. I am not sure
anyone understood the policy, and it had no effect that I can tell on
improving transparency in a public body, the Senate, where we are on
television and the public's business--all of the public's business--
ought to be public.
No longer willing to settle for half measures such as we had been
dealt in 1999 and 2003 that do not end secret holds once and for all,
in the last Congress, Senator Wyden and I then took our own initiative,
not waiting for leaders to act. We offered our standing order to
require full public disclosure of all holds as an amendment to the
lobbying reform bill. It was a well-thought-out measure that was
drafted with the help of people who know about how this place
operates--Senator Lott and Senator Byrd. Remember, Senator Byrd has
been around here for a half century. We used their insights and their
knowledge of Senate procedures as former majority leaders to write our
legislation.
Our standing order passed the Senate by a vote of 84 to 13. Now think
of that, this Senate making a decision that holds should not be secret
anymore by a vote of 84 to 13. But listen to what happened after that
84-to-13 vote. While that bill did not become law, it became a starting
point for the ethics bill passed by the Senate last year.
I thought the leaders had finally accepted that we would have full
disclosure of holds. In fact, our secret holds provisions remained
intact in the version of the ethics bill that originally passed the
Senate earlier this year. Then, even though the secret holds provisions
related only to the Senate--nothing to do with the other body, the
House of Representatives--and had already been passed by the Senate, on
a voice vote this time but reflecting the reality of the 84-to-13 vote
before, they were rewritten behind closed doors by Members of the
majority party.
Once again, I feel like half measures have been substituted for real
reform. In other words, the provisions that had passed one time by 84
to 13, only affecting us, went to conference--where they didn't have to
go to conference because it only affected us, it didn't affect the
other body--and we end up with no real reform.
Under the rewritten provisions, a Senator will only have to disclose
a hold ``following the objections to a unanimous consent to proceeding
to, and, or passage of, a measure or matter on their behalf.''
Now, that is going to puzzle you like it puzzles me. Obviously, in
this case, the hold would already have existed well before any
objection. In fact, most holds never even get to this stage because the
mere threat of a hold prevents unanimous consent requests from being
made in the first place. This is particularly true if the Senator
placing the hold is a member of the majority party. In that case, the
majority leader would simply not ask unanimous consent, knowing that a
member of his party has a hold.
For instance, it is not clear to me what would happen if the minority
leader asked unanimous consent to proceed to a bill and the majority
leader objected on his own behalf to protect his prerogative to set the
agenda but also having the effect of honoring the hold of another
member of the majority leader's caucus. Or what if the majority leader
asked unanimous consent to proceed to a bill and the minority leader
objects but does not specify on whose behalf, even though a member of
the minority party has a hold. Would the minority Senator with the hold
then be required to disclose the hold? I don't know. It is not very
clear.
I asked the Office of the Parliamentarian for an opinion about how
the new provision would work in such instances, but with no legislative
history--because this was written behind closed doors there is no
report to come out--with no legislative history for the changes that
were made to the Wyden-Grassley measure, the intent of the rewritten
provisions was not evident is what the Parliamentarian said. Therefore,
what did I do? I wrote to the Senate Rules Committee to provide insight
into the content of the rewritten provisions.
The response referred me to a section-by-section analysis of the bill
in the Congressional Record that essentially restates the provisions
but once again sheds no light on the specific questions about how this
works. Perhaps that is because the answer might be a little
embarrassing.
Depending upon how the new provisions are interpreted in the first
instance I mentioned, it is possible that holds by members of the
majority party will never be made public. In the second instance, a
literal interpretation of the provision might indicate that either
leader could choose to keep a hold by a member of their party secret so
long as they do not specify publicly that their objection is on behalf
of another Senator.
The Rules Committee letter claims the changes were intended to make
the provision ``workable.'' It seems to me it is quite obvious that,
unless somebody can answer these questions--I have asked the
Parliamentarian and the Rules Committee and no answers yet--I don't see
how the new provisions are any more workable than the original. On the
contrary, they are not only unworkable, they undermine transparency.
They make it more difficult for this body that is on television every
day, where everything we do is the public's business. We want the
public to know about it or we wouldn't be on television. Don't you
think if a Senator has a hold on a bill, we ought to know who that
Senator is and why he has a hold?
Under the changes, not only is the disclosure of holds only required
after formal objection has been made to a unanimous consent request,
but Senators then have a full 6 session days to make their disclosure
public. What is more, a new provision was added specifying that holds
lasting up to 6 days may remain secret--remain secret--forever.
What is the justification for that? Six days is more than enough time
to kill a bill at the end of the session. And we are saying it is okay
for Senators to do that in secret?
There are other changes that are puzzling to me. For instance, our
original measure required holds to be submitted in writing in order to
be honored, to prevent staff from placing holds without the knowledge
of the Senator. However, in the rewrite of what Senator Wyden and I
originally put in, Senators now must be given written notice to the
respective leaders of their ``intent to object'' only after the leader
has already objected on the Senator's behalf. This is not only
unworkable, but I think you would agree it sounds very absurd.
I have stated repeatedly and emphatically that as a matter relating
to Senate procedure, it would be completely illegitimate to alter in
any way the original Senate-passed measure requiring full disclosure of
holds. The U.S. Constitution makes clear, ``Each House may determine
the rules of its proceedings.''
The hold is a unique feature of the Senate arising out of its own
rules and practices, with no equivalent in the House of
Representatives. As such, there is no legitimate reason why this
provision, having already passed the Senate, should have been altered
in the first place and in any way. Nevertheless, it was altered in a
very substantial way. In fact, it was altered in a way that I fear will
allow secrecy to continue in this institution.
Clearly, the so-called Honest Leadership and Open Government Act was
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handled by the majority party in a way that is anything but what the
title of the bill implies.
So as you can tell, I have been frustrated so far in my attempts to
find answers about how the rewritten provisions will be applied, but we
will find out soon enough. Because I can assure you I will not give up
until I am satisfied the public's business in this Senate is being done
in a public way.
Mr. President, I ask unanimous consent to have printed in the Record
the letter I wrote to the Rules Committee and the response I got back.
There being no objection, the material was ordered to be printed in
the Record, as follows:
August 24, 2007.
Hon. Dianne Feinstein,
Chairwoman, Senate Committee on Rules and Administration,
Washington, DC.
Dear Chairwoman Feinstein: I am seeking clarification of
the intent of several changes made to the original Senate-
passed provisions on disclosure of Senate holds in S. 1, the
Legislative Transparency and Accountability Act. As you know,
Senator Wyden and I , along with Senators Lott and Byrd,
drafted the original provisions that have previously passed
the Senate overwhelmingly. I have contacted the office of the
Senate Parliamentarian seeking clarification about how the
altered provisions would be interpreted and the initial
reaction was that, the legislative intent was not
sufficiently clear without more information on the
legislative history to determine how the provisions would be
applied in many circumstances. This is not surprising given
the process by which these provisions were altered behind
closed doors and rushed through the Senate without debate or
amendments. Ironically, the lack of transparency in the
process of considering a bill that is supposed to be about
legislative transparency has left no legislative history to
assist in interpreting this new language. Therefore, I ask
that you provide me with written answers to several questions
about the intent of the provisions as rewritten in the final
version of the Legislative Transparency and Accountability
Act.
New language was added to the original Senate-passed
provision stipulating that senators would only be required to
disclose their holds, ``following the objection to a
unanimous consent (request?) to proceeding to, and, or
passage of, a measure or matter on their behalf . . . '' As
such, would the disclosure requirements be triggered for a
senator who had placed a hold with their leader only if their
leader or the leader's designee objects and specifically
states that the objection is on behalf of another senator?
For instance, if a member of the minority party has
previously contacted the minority leader to place a hold,
then the majority leader asks unanimous consent to proceed to
a matter and the minority leader objects without giving a
reason or specifying that the objection was on behalf of
someone else, would the minority senator who had placed the
hold be required to disclose or remove the hold within six
session days? Would the disclosure provisions be triggered if
a member of the majority party has previously placed a hold
with the majority leader, the minority leader asks unanimous
consent to proceed to a matter, and the majority leader
objects on his own behalf to protect his prerogative to set
the agenda, but also having the effect of honoring the hold
of another member of the majority leader's caucus?
Other changes were also made to the original Senate-passed
provisions that are more evident in their effect, but where
the rationale remains unclear and I would appreciate any
insights into the rationale for these changes. For instance,
many holds exist for some time without a unanimous consent
request and subsequent objection, and they have the effect of
dissuading the majority leader from attempting to move to a
matter, particularly in the case of hold by members of his
own party in which case a unanimous consent request to move
to a matter is unlikely ever to be made. Therefore, it isn't
clear why a provision was inserted making the disclosure
requirements effective only after a unanimous consent request
and objection, this allowing holds to remain secret until
that time.
The original Senate-passed provision also required that any
hold be submitted in writing to the appropriate leader to
allow the leaders to distinguish between a formal hold and an
offhand comment, as well as to prevent staff holds. However,
as currently drafted, a senator is required to submit a hold
in writing to his respective party leader only after that
leader has already honored the hold by objecting to a
unanimous consent request on that senator's behalf, making
the requirement irrelevant and even absurd.
Also, while the original Senate-passed provisions included
a short time window to give senators a chance to fill out and
submit their disclosure forms for the Congressional Record,
the intention was never to sanction secrecy for even a short
period of time. However, the new language allows six session
days before disclosure is required and includes a new
provision clarifying that senators never have to disclose
holds so long as they are withdrawn within the six day
period. I fail to see the justification for sanctioning
secret holds for up to six days, which at the end of a
session is more than enough time to effectively kill a bill
or nominee in complete secrecy.
As I have said repeatedly, the public's business ought to
be done in public. Although I believe the altered disclosure
requirements for holds are flawed and do not fully eliminate
secret holds as I had intended, I hope they will result in
some increased transparency. Still, it is not completely
clear what is now expected of senators and how these
provisions will be interpreted. Therefore, I would appreciate
any insights you can provide into the intent of the new,
altered language related to disclosure of holds that was
inserted into the Legislative Transparency and Accountability
Act.
Sincerely,
Charles E. Grassley,
U.S. Senator.
____
U.S. Senate, Committee on Rules and Administration,
Washington, DC, September 12, 2007.
Hon. Chuck Grassley,
U.S. Senate,
Washington, DC.
Dear Chuck: I appreciate your concern about the provision
on Senate holds in S.1, the Honest Leadership and Open
Government Act, and I remain deeply committed to ensuring
adequate disclosure of Senators who seek to place holds on
bills, nominations and other Senate proceedings.
In terms of building a legislative history, I refer you to
the Section by Section Analysis and Legislative History,
which I submitted to the Congressional Record along with
Chairman Lieberman and Majority Leader Reid, Volume 153, Nos.
125-126, August 2, 2007.
``Section 512 relates to the concept of so-called `secret
holds.' Section 512 provides that the Majority Leader or
Minority Leader or their designees shall recognize another
Senator's notice of intent to object to proceeding to a
measure or matter subsequent to the six-day period described
below only if that other Senator complies with the provisions
of this section. Under the procedure described in section
512, after an objection has been made to a unanimous consent
request to proceeding to or passage of a measure on behalf of
a Senator, that Senator must submit the notice of intent to
object in writing to his or her respective leader, and within
6 session days after that submit a notice of intent to
object, to be published in the Congressional Record and on a
special calendar entitled `Notice of Intent to Object to
Proceeding.' The Senator may specify the reasons for the
objection if the Senator wishes.
``If the Senator notifies the Majority Leader or Minority
Leader (as the case may be) that he or she has withdrawn the
notice of intent to object prior to the passage of 6 session
days, then no notification need be submitted. A notice once
filed may be removed after the objecting Senator submits to
the Congressional Record a statement that he or she no longer
objects to proceeding.''
It is important to note that the revisions in the final
bill were based largely on concerns raised by the Senate
Parliamentarian and the offices of the Majority and Minority
Leader that the original language was not workable,
especially since procedures on Senate holds are not written
in the Standing Rules of the Senate and are not enforceable
by the Parliamentarian.
The final language was developed in consultation with
Senator Wyden,the lead sponsor of the provision, and we were
not aware of any further objections.
If you have an alternative recommendation, which the
Parliamentarian believes is workable and enforceable, I would
be interested in reviewing it.
With warm personal regards,
Dianne Feinstein,
Chairman.
Mr. GRASSLEY. Mr. President, I yield the floor.
____________________
