[Congressional Record: April 21, 2010 (Senate)]
[Page S2510-S2513]
SECRET HOLDS
Mr. GRASSLEY. Mr. President, I have not listened to every speech on
the Senate floor in the last week or so where there has been a lot of
talk about secret holds and everything. But since I have been in the
Senate working with Senator Wyden in a bipartisan way over the course
of maybe a decade, not to do away with holds but to have a transparency
of holds, and seeing those things compromised, and then particularly to
see exception taken to what has happened when this side of the aisle
has put on holds, and then considering when Senator Wyden and I did try
to do something, that was gutted by people on the other side of the
aisle. So I would appreciate it if Democratic Members of the Senate
would listen while I explore some of the history so that they know this
bipartisan effort, that if it had been done the way Senator Wyden and I
did it before it was gutted, we would not have a lot of problems today
that we have.
So I wanted to go into my remarks, but I preface it with what I just
said. There has been a lot of talk recently on the Senate floor about
secret holds. For a practice with so much bipartisan guilt to go
around, it is interesting that the discussion has taken on a partisan
tone. Republicans are being accused of being particularly egregious
offenders when it comes to circumventing disclosure requirements.
Let me say that if any of my colleagues have holds on either side of
the aisle, they ought to have the guts to go public and to go public
the minute they put the hold on, not like the mysterious way it is done
now, which amounts to nothing. It has been my policy for years to place
a brief statement in the Congressional Record each time I placed a
hold, with a short explanation of why I placed the hold. I did that
before there was ever any Wyden-Grassley proposal. The current
disclosure requirements for secret holds have been discussed quite a
bit lately, as has bipartisan work with Senator Wyden to address the
issue. It is important I give a little background about how we got
where we are today.
After many attempts to work with various leaders over the years on
policy to make all holds public, Senator Wyden and I decided the only
way to settle this matter once and for all was for the full Senate to
adopt a very clear policy. In the 109th Congress, Senator Wyden and I
were successful in passing an amendment to the ethics reform bill by a
very wide vote of 84 to 13 to require public disclosure of holds. That
bill was never enacted, but the identical provision was included in the
ethics bill passed by the full Senate at the very beginning of the
110th Congress. Members may recall the Democrats had just secured a
majority in both houses of Congress. Then, in a process that has become
all too familiar under the past two Democratic Congresses, there was no
conference committee. Instead, in a twist of irony, the so-called
Honest Leadership and Open Government Act was rewritten behind closed
doors by the Democratic leadership. Lo and behold, the public
disclosure provision Senator Wyden and I had worked so hard on, which
the Senate had overwhelmingly adopted on that 84 to 13 vote, had been
altered, and altered significantly. Keep in mind, under Article I,
section 5 of the Constitution:
Each House may determine the Rules of its Proceedings . . .
That means that the House of Representatives has no say whatsoever
about the Senate rules. When the full Senate speaks on a matter of
Senate procedure, that should be the final word, particularly if it is
84 to 13. I want to be clear, the current weak disclosure requirements
we now have are not the ones originally proposed by Senator Wyden and
this Senator. In fact, at the time I came to the floor and criticized
the specific changes, because I saw they would be ineffective. And
ineffective they are.
Let me reiterate some of those criticisms I initially aired to the
Senate on two occasions: August 2, 2007, and September 19, 2007. In the
version the Senate originally passed, we allowed 3 days for Senators to
submit a simple public disclosure form for the record, just like adding
oneself as a cosponsor to a bill. This was intended simply to give time
to perform administrative functions of getting the disclosure form to
the Senate floor, not to legitimize secrecy for the period of 3 days.
The rewritten provision gives Senators 6 session days. That might not
sound so bad but wait to see how that actually works out in practice.
First, it doesn't take a week to send an intern down to the Senate
floor with a simple form saying one is putting a hold on a bill. The
change I find most troubling is that the 6 days until the disclosure
requirement is triggered begins only after a unanimous consent request
is made and objected to on the Senate floor. That is too late. I will
explain how that is ineffective. By that point, a hold could have
existed for quite some time, perhaps without the sponsor of the bill
even realizing it. In fact, most holds never get to the point where an
objection is made on the floor, because the threat of a hold prevents a
unanimous consent request from being made in the first place. So maybe
this 6 days is never even triggered.
The original Wyden-Grassley provision required disclosure at the time
the hold was placed. That is where it ought to be today. We have heard
lately about how the minority party has used the weak disclosure
requirements to avoid making holds public. However, this change made it
far less likely that majority party holds would ever, in fact, become
public. Since the majority leader controls the Senate schedule, he
would hardly object to his own request to bring up a bill or nominee.
He would simply not bring up a bill or nominee being held up by a
member of his own party, and we might never know that there was a hold
on it at all.
Why were these provisions changed? Simply, I don't know. I don't know
who does know, because I can't be sure who it was who rewrote these
provisions in secrecy behind closed doors. The majority party should be
careful now, as they complain about Republicans exploiting loopholes in
the disclosure requirements for holds. Both parties are guilty of using
secret holds. But we can't blame Republicans for the fact that the
current disclosure requirements are weak and ineffective. Again, there
is plenty of blame to go around when it comes to using secret holds,
but I am hopeful this recent attention to the problem can result in a
bipartisan consensus to end secret holds once and for all. That is
something we
[[Page S2511]]
hope, Senator Wyden and I, other people will talk to us about. We would
like to move in this direction. I, for one, am happy to work with
anyone on either side of the aisle to that end.
It should be stressed that this has been a bipartisan effort.
Everybody in this body talks about bipartisanship. When this was
watered down, it wasn't watered down in an environment that I know
about where any Republicans were present.
Mr. WYDEN. Will the Senator yield for a question?
Mr. GRASSLEY. Yes.
Mr. WYDEN. First, let me tell the Senator from Iowa how much I have
enjoyed working with him on this. We have had, as incredible as it
sounds, a 10-year campaign to try to end secrecy in the Senate, just so
people know a little bit about it. I always think when people hear
about a hold in the Senate, they probably think it is a hair spray or a
wrestling move or something like that. Isn't it correct that a hold,
the ability to block a nomination or a piece of legislation, is one of
the most powerful tools a Member of the Senate has today to influence
policy?
Mr. GRASSLEY. Mr. President, Senator Wyden is absolutely right. It is
a very powerful tool.
Mr. WYDEN. And with respect to transparency, what he and I have
focused on all these years, people asked: Are you trying to abolish a
hold? I think he and I have said we believe Senators ought to have a
right to weigh in on something important. But at a time when the public
wants transparency and openness and accountability, a Senator who wants
to use what the Senator has said is an extraordinary power, the real
public interest is satisfied by that Senator having to disclose
promptly that they are imposing a hold; is that correct?
Mr. GRASSLEY. Mr. President, Senator Wyden is correct. I would add
this point, that not only is it transparency that is essential--and it
happens that way--but also a lot of times holds are put on because
there is something wrong. We have to know what it is somebody believes
is wrong, if we are going to work out some sort of a compromise.
Mr. WYDEN. One additional point, is it the Senator's sense, because
we have talked about this often as we have been watching the spectacle
of all these secret holds, that the central problem is it is triggered
too late and it takes too long to kick in? Is that a fair statement of
what needs to be changed? We need to get the openness earlier? It needs
to be triggered earlier, and it needs to get into the public domain
earlier; is that correct?
Mr. GRASSLEY. Mr. President, the Senator is correct. The present
rules are practically not much better than what we have always operated
under. So there isn't transparency, and it isn't done soon enough.
Mr. WYDEN. I express my appreciation to the Senator from Iowa for
giving me the opportunity to work with him. He and I have pursued a lot
of issues in the past. Very often those issues are part of television
news debates and the like. Obviously, the secret hold would not be
something on Main Street in Des Moines or Portland that people know
about. This is the time to get this right once and for all. We sought
to do it literally for a decade. A number of majority leaders,
Democratic and Republican, said they wanted to get this done. Yet as of
this day, I personally believe it continues to be abused and flagrantly
so. At a time when the American people are looking at these challenging
economic circumstances, they deserve a government that is truly open,
truly accountable, and truly transparent. That has been what has guided
our bipartisan efforts over this last decade. I appreciate the Senator
coming to the floor this evening. There are not that many opportunities
to advance a truly bipartisan agenda. He has given us the opportunity
to do that tonight.
I look forward to working with my colleague to once and for all get
secret holds abolished in the Senate.
Mr. GRASSLEY. I yield the floor.
The PRESIDING OFFICER (Mr. Begich). The Senator from Oregon.
Mr. WYDEN. I ask unanimous consent to speak for up to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WYDEN. Mr. President, to continue this topic, we need to kind of
put into perspective a little bit about why this secret hold has become
such a detrimental practice. When Willy Sutton was asked why he robbed
the bank, he said: That's where the money is. Secret holds are where
the power is. Senator Grassley and I have outlined the enormous effect
a secret hold can have on a piece of legislation but, frankly, one of
the other points that needs to be made is that a secret hold is a very
powerful weapon that is available to a lobbyist.
I expect that practically every Senator has gotten a request from a
lobbyist asking if the Senator would put a secret hold on a bill or
nomination in order to kill it without getting any public debate and
without the lobbyist's fingerprints appearing anywhere. If you can get
a U.S. Senator to put an anonymous hold on a bill, it is like hitting
the lobbyist jackpot. Not only is the Senator protected by a cloak of
anonymity but so is the lobbyist.
A secret hold lets lobbyists play both sides of the street and can
give lobbyists a victory for their clients without alienating potential
or future clients. Given the number of instances where I have heard a
lobbyist asking for secret holds, I am of the view that secret holds
are a stealth extension of the lobbying world.
In the U.S. Senate, there has been an effort to improve the rules and
have stricter ethics requirements with respect to lobbyists. It seems
to me it would be the height of irony if the Senate were to adopt a
variety of changes to curtail lobbying, as we have done in the past,
without doing away with what, in my view, is one of the most powerful
tools that can be available to lobbyists.
The overwhelming majority of our citizens, in every corner of the
land, be it Alaska or Oregon or Rhode Island, say they want public
business done in public. If you walk down the streets of this country,
I do not think you could find 1 out of 100 people who would have any
idea what a hold is or what a secret hold is all about. But the fact
is, these secret holds in the U.S. Senate can dramatically affect and
change the lives of our citizens, and our people will not even know
about it.
The hold--the ability to block a piece of legislation, block a
nomination--cannot even, in a number of instances, end up being
discussed on the floor of the Senate. Literally, the Senate will not
even get a peek, will not even get the briefest look, at a particular
issue that may involve millions of our citizens, billions of dollars,
and affect the quality of life of citizens in every corner of the land.
So what this is all about, what Senator Grassley and I have been
working for lo, this past decade, what I have heard colleagues talk
about--and Senator Whitehouse has spoken eloquently about this--is we
believe now is the time, once and for all, to permanently wipe the
secret hold off the rulebooks of the Senate.
It is one thing if a Senator exercises the extraordinary power that a
hold presents. It is quite another when they cannot be held accountable
because they exercise this power in secret. So the average person in
America may not know what a secret hold is, but I am very certain they
want the Senate to do its business in public.
I want to express my appreciation to Senator Grassley, who has left
the floor, for working with me over this past decade to end what I
think is a simply inexplicable denial of the public's right to know.
That is what this is essentially about. This is a denial of the
public's right to know. With colleagues on both sides of the aisle, I
am determined to, this time, get this changed, shorten the period, to
make it easier to trigger the requirements of public disclosure.
Mr. President, I know my colleague from Rhode Island is interested in
getting in this issue. I look forward to his comments and yield the
floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to engage for
5 or 10 minutes in a colloquy with the distinguished Senator from
Oregon.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WHITEHOUSE. Mr. President, I, first of all, want to salute
Senator Wyden of Oregon for his long work on this issue. He has been
working on this issue since before I came to the Senate, before I had
any experience of secret
[[Page S2512]]
holds, and saw--as we are seeing right now--their pernicious effect.
At present, we are looking at probably a little less than 80 secret
holds by Republicans of President Obama's nominees--some judges. In the
past few days, Senator McCaskill and I have come to the floor to push
some of these nominees forward, to ask unanimous consent they go
forward.
In one case, a nominee was a judge who was supported by both a
Democrat and a Republican--the Senators from his home State--who had
passed out of the Judiciary Committee by a unanimous rollcall vote of
19 to 0. They have been held for months and months. The distinguished
Senator from Arizona, Mr. Kyl, was put in the unfortunate position,
since he had voted for this nominee in committee, to have to come to
the floor and raise an objection to the unanimous consent request for a
judge who he voted for in committee and one of his Republican
colleagues supported--the home State Senator supported--to have to
object to that nomination going forward because somebody had a secret
hold.
We went through a great deal of these. I want to salute Senator
McCaskill. She carried the greater part of the burden. I only tried to
move a few. I think she tried to move over 70 by the time the day was
done. I really want to extend my appreciation to her for that.
I say to Senator Wyden, as I understand it, the rule is that now that
these unanimous consent requests have been made, there is a 6-day-of-
session period that has now begun to run, and at the end of that 6
days, our Republican colleagues will be obliged to disclose publicly
their holds, who is holding it, and what their reason is.
I understand there is a potential loophole, which is they could pull
sort of the old switcharoo, and in the 6-day period the Senator or
Senators with the hold could all release their hold so that at the end
of the 6-day period they have no hold to disclose, but they could
connive with another colleague to put in a new hold, since the
unanimous consent request, so they can start the process all over and
hide their accountability.
But it strikes me those are really the only two choices our
Republican colleagues have: They either have to divulge or they have to
engage in a game of switcharoo, connivance with another Republican
colleague to try to duck out from under the rule which was passed I
think by 92 votes. It has very strong bipartisan support.
I say to Senator Wyden, I just wanted to clear that understanding
with the Senator since he is an expert on this issue, that the clock is
running, that they have 6 days to come clean about this; and that the
only two ways out are either to divulge or connive with another Senator
to engage in a little switcharoo.
Mr. WYDEN. Or I think there might be a third option, of course, which
is to lift the hold. But the Senator has done a very careful and
thoughtful analysis of the situation and particularly this situation of
what Senator Grassley and I came to call the ``rotating hold,'' simply
shifting to another person--something that has been done often over the
years by Democrats and Republicans. I think now is the time to get this
changed. By the way, the Senator is absolutely correct on the
bipartisan nature of the rule change. The vote was 84 to 13. There was
overwhelming bipartisan support for it.
The Library of Congress has actually put together a very thoughtful
historical analysis featuring the discussion of things such as the
``Mae West'' hold, which came to be known as the ``come look me over''
hold, which I gather was not a full-fledged hold but it might actually
blossom into one.
So the Senator is absolutely right about what the choices are. That
is why it is time, once and for all, to get this changed. I so
appreciate the Senator, and also Senator McCaskill from Missouri,
coming and highlighting the fact that this has again gotten out of
hand.
The historical analysis of this has been that the hold was something
that would be used rarely. The hold was for something of great
consequence. Yet now it seems we have these secret holds that are
simply thrown out for nominations and pieces of legislation because
someone has some modest interest or is carrying out a different agenda,
and I think that is why the secrecy is so unfortunate.
I thank my colleague.
Mr. WHITEHOUSE. So to have 80 secret holds by one party, all at once
pending in the Senate, is not consistent with the history of the use of
this procedural tactic in this body. Is my understanding correct?
Mr. WYDEN. The Senator is absolutely right about the fact that 80
secret holds is clearly not what Senator Grassley and I and reformers
thought would happen. Given all these secret holds, you would think at
the back of the Executive Calendar--which is page 19; it is entitled
``Notice of Intent to Object to Proceeding''--given what the
distinguished Senator from Rhode Island has pointed out, one would
think that page 19, ``Notice of Intent to Object to Proceeding,'' would
be filled with these names if the rule was being honored.
I say to the Senator, both you and I are holding up this page 19 with
nary a word on it.
Mr. WHITEHOUSE. We are looking at an empty page.
So just to summarize, the clock has run as a result of this series of
unanimous consent requests Senator McCaskill and I have put forward.
The 6 days have begun. By the end of that, one of three things--as the
Senator has corrected me--will have happened. Either the hold will have
been lifted, and then we can move to unanimous consent and clear these
individuals who the President has nominated and get them to work for
the American people or, two, the Senator who has the secret hold will
have to acknowledge publicly and become transparent and clear and
candid with the rest of the body about who they are holding and why,
or, three, they can engage in this rather obscure, shall we say, game
of rotating holds, what I called the switcharoo, ducking out before the
time runs and getting somebody else to actually have your hold for you
but get in a proxy.
Given this was a rule that was adopted with a very strong vote, a
very strong bipartisan vote, and that it is now a rule of the Senate,
what comment would the Senator have on that third tactic in terms of
its merit and appropriateness, if we find it is being used at the end
of the 6 days? Would that spur the need for reform of this rule?
Mr. WYDEN. It surely would. I am grateful to the Senator from Rhode
Island for prosecuting the reform case. I have talked with Senator
Grassley about it, and with Senator McCaskill and the Senator, and I
think this is the time.
There are two points with respect to the secret hold: one as it
relates to the institution and one as it relates to an individual
Senator. With respect to the institution, in this example, the Senator
has given us scores of these secret holds. I think this serves to
undermine the credibility of the institution at a crucial time in
American history. It is no secret Americans are divided on a host of
issues.
Well, if the Senate insists on doing so much important business in
secret--which is what happens if you honor these secret holds--I think
that just undermines the institution. Because I think, first and
foremost, you are absolutely right to zero in right now where we have
all these secret holds.
Secondly, with respect to an individual Senator, what seems
particularly important--the Senator and I share an interest in health
care and a variety of economic issues--suppose an individual Senator
works for years and years to try to build a bipartisan coalition on an
issue and then is done in by an unknown or secret opponent, an unknown,
unseen opponent who has been able, in effect, to block all that
bipartisan work in secret.
So I want the Senator to know I am four-square behind his efforts to
get this changed. Senator Grassley and I have been talking about it. I
think there is an opportunity to make this bipartisan.
I will also say, in closing--and the Senator has been kind to give me
all this time--I do not think the secret hold passes the smell test of
openness in American government. It is time to change it. I look
forward to working with my colleague to finally, after all of these
years, get this done and send the secret hold off into the dust bin of
history.
Mr. WHITEHOUSE. The legacy of the Senator from Oregon on this, with
10
[[Page S2513]]
years of work, is very impressive to this newer Senator. I appreciate
so much what he and Senator Grassley have done over the years to begin
to put an end to this practice.
I think the straw that broke the camel's back--or maybe the 80 straws
that broke the camel's back--was the absolute avalanche of secret holds
that has confronted our new President from this Republican minority. It
has come to the point where the President, I think fairly, believes his
ability to staff his own administration is being compromised by people
who will not stand and be counted and be accountable for the reason for
their opposition. It is being done in the dark, secretly, and without
any accountability. I agree that needs to be put to an end.
So I urge people who are watching this: The sixth day has begun--6
days of session. At the end, we will know who is doing this or we will
be able to clear these nominees, and we will have broken this
unfortunate practice, to a significant degree or we will have learned
something I think very unfortunate about our friends on the other side;
that is, that they have agreed to connive with one another to play a
switcharoo and bring in a new Senator to dodge the clear import of the
rule that the Senator from Oregon and Senator Grassley worked on, on a
bipartisan basis, to put into effect in this body and which was
approved by an enormous majority of this body. So the clock is running
and we will see. We will learn a lot about this institution and our
colleagues in 6 days. I thank the Senator for his leadership on this
issue.
I yield the floor, and I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
