[Congressional Record: April 29, 2010 (Senate)]
[Page S2787-S2788]
SECRET HOLDS ON NOMINATIONS
Mrs. McCASKILL. Madam President, I came to the floor of the Senate
last Tuesday to make 74 unanimous consent motions to trigger a law this
body voted for by a vote of 96 to 2 back in January of 2007, and this
law says that once a unanimous consent motion is made for a nomination,
that people who are secretly holding the nomination must come out into
the sunlight.
The law requires that 6 days after that motion is made, whoever is
holding the nominee must identify themselves and, in fact, that must be
published in the Congressional Record. Tomorrow would be the day for
publication for all the dozens of different nominees being held up by
who knows who for who knows what reason.
I wished to make sure the leaders of both parties were aware that
this time had run and, today, I will ask unanimous consent that a
letter I sent to the minority leader and the majority leader
acknowledging that the rule has been triggered, with the list of the
various nominees, asking that they make sure the Members of their party
have, in fact, come forward and identified themselves for the Record
tomorrow.
I ask unanimous consent that the letter I sent to Leader McConnell
and Leader Reid be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, April 29, 2010.
Hon. Mitch McConnell,
Minority Leader, U.S. Senate,
The Capitol, Washington, DC.
Minority Leader McConnell: Last week I went to the Senate
floor to raise the issue of ``secret holds'' and to call
attention to the need for openness and transparency within
the United States Senate. As you know, a secret hold refers
to the practice where one member of the Senate puts an
anonymous hold on a nominee or legislation without publicly
raising their objections. In spite of efforts in 2007 to end
this practice, we now know that secret holds remain the
status quo in the Senate. While efforts are being made to
strengthen this rule and eliminate secret holds, I am
concerned that Senators continue to ignore the current
requirements for disclosure of holds.
Under the existing rule, after a unanimous consent request
is made to confirm a nomination or pass legislation, the
Senator with objections to the particular measure or nominee
must notify their party leader and then submit a notice of
intent specifying the reasons for their hold. Within six-
session days of the unanimous consent request, the notice
must be printed publicly in the Congressional Record. The
rule is clear that it is incumbent upon the leaders of each
party to enforce the rules should members fail to comply.
Today marks the sixth session-day since I made seventy-four
unanimous consent requests to confirm the non-controversial
nominations on the Senate Executive Calendar (a complete list
is attached). These nominees were reported out of committee
by voice vote or by a unanimous vote of the committee and
have no known opposition. To date, there have not been any
notices filed in the Congressional Record despite the fact
that all seventy-four motions were objected to by Senator Kyl
on behalf of his Republican colleagues. While, several of
these nominations have since been confirmed by the Senate,
the bulk of the nominations remain stalled without any public
notification.
[[Page S2788]]
Therefore, I write today to ask if you have been notified
by any member that he/she has objections to any of the
confirmation requests I made last week. If so, I urge you to
enforce the member's obligation to place a public notice in
the Congressional Record stating their objection. Should
there be no known opposition to these nominees I ask that
they be immediately confirmed by unanimous consent of the
Senate.
Thank you for the consideration of this request. Should you
or your staff have any additional concerns or questions,
please feel free to contact Nichole Distefano of my staff at
nichole_distefano@mccaskill.senate.gov.
Sincerely,
Claire McCaskill,
United States Senator.
____
U.S. Senate,
Washington, DC, April 29, 2010.
Hon. Harry Reid,
Majority Leader, U.S. Senate,
The Capitol, Washington, DC.
Majority Leader Reid: Last week I went to the Senate floor
to raise the issue of ``secret holds'' and to call attention
to the need for openness and transparency within the United
States Senate. As you know, a secret hold refers to the
practice where one member of the Senate puts an anonymous
hold on a nominee or legislation without publicly raising
their objections. In spite of efforts in 2007 to end this
practice, we now know that secret holds remain the status quo
in the Senate. While efforts are being made to strengthen
this rule and eliminate secret holds, I am concerned that
Senators continue to ignore the current requirements for
disclosure of holds.
Under the existing rule, after a unanimous consent request
is made to confirm a nomination or pass legislation, the
Senator with objections to the particular measure or nominee
must notify their party leader and then submit a notice of
intent specifying the reasons for their hold. Within six-
session days of the unanimous consent request, the notice
must be printed publicly in the Congressional Record. The
rule is clear that it is incumbent upon the leaders of each
party to enforce the rules should members fail to comply.
Today marks the sixth session-day since I made seventy-four
unanimous consent requests to confirm the non-controversial
nominations on the Senate Executive Calendar (a complete list
is attached). These nominees were reported out of committee
by voice vote or by a unanimous vote of the committee and
have no known opposition. To date, there have not been any
notices filed in the Congressional Record despite the fact
that all seventy-four motions were objected to by Senator Kyl
on behalf of his Republican colleagues. While, several of
these nominations have since been confirmed by the Senate,
the bulk of the nominations remain stalled without any public
notification.
Therefore, I write today to ask if you have been notified
by any member that he/she has objections to any of the
confirmation requests I made last week. If so, I urge you to
enforce the member's obligation to place a public notice in
the Congressional Record stating their objection. Should
there be no known opposition to these nominees I ask that
they be immediately confirmed by unanimous consent of the
Senate.
Thank you for the consideration of this request. Should you
or your staff have any additional concerns or questions,
please feel free to contact Nichole Distefano of my staff at
nichole_distefano@mccaskill.senate.gov.
Sincerely,
Claire McCaskill,
United States Senator.
Mrs. McCASKILL. Madam President, we have gone back and looked at the
Executive Calendar from a historic perspective. At the beginning of
this week, we had 84 pending nominations. At the exact same time in
President Bush's Presidency, we had eight. That is what we call a
lopsided score--84 to 8. Of the 49 nominations we have voted on as a
body since President Obama took office, 38 of them were confirmed by
more than 70 votes. That is a pretty lopsided margin. Twenty of them
were confirmed by more than 90 votes.
I am confident that if we took the time--which I think may be the
desire of my friends on the other side--to file cloture and go through
individual votes on all these nominees, the vast majority of them would
receive those kinds of lopsided confirmations. This is a game we need
to quit playing. The secret hold needs to end.
I have written some colleagues of mine, including Senator Mark Warner
and Senator Whitehouse, and we have composed a letter--and we asked our
colleagues to sign it--saying we will no longer participate in the
secret hold. No more secret holds for us. We don't need the law to tell
us we only have 6 days to secretly hold. We have asked in the letter
that the secret hold be abolished. There is not a good reason for it.
There isn't. Why does anything such as that need to be a secret? It is
something that needs to be done publicly. The people whom everyone
works for need to know why they are holding up a nomination or blocking
a bill. The secrecy needs to stop.
You can hold somebody; it is your prerogative as a Senator to hold a
nominee. Work against that nomination. Try to defeat them in committee.
Keep in mind that all these nominees came out of committee without an
objection--no objection in committee. If you want to object, that is
your prerogative. Come out and tell the world why this is the wrong
person for the job but don't hide. Don't hide.
I will be watching with interest tomorrow the Congressional Record. I
am very worried we are going to have the old switcharoo, which means if
you withdraw your hold in 6 days, then you can hand it off to somebody
else. You can say: I no longer have a secret hold, and then you whisper
to your buddy: Why don't you do it now and then we will have 6 more
days and then another 6 days.
I wish to serve notice that I will be making these unanimous consent
requests every time there is a secret hold, so anybody who does it is
only going to have 6 days. Seriously, if we start the switcharoo and
continue to go week after week without knowing who is holding these
people or why, that is when people should get angry. That means they
voted for a law that they had every intention of evading. People are
mad enough at us. That is liable to get them over to the ``flat
furious'' category if we go into that territory.
I am hopeful this Congress will be the Congress where we end the
secret hold. I wish to again acknowledge the work Senator Grassley and
Senator Wyden have done for years. They have definitely tilled this
ground, and they, in fact, put this in the law that we voted on in
2007. I compliment them for their work on this issue. We are continuing
to work together on this issue. Senator Wyden and Senator Grassley are
continuing to try to find a way to reform and make this place more open
and transparent.
I invite all my colleagues to sign the letter--Republican,
Democratic, Independent. Sign the letter. We have 43 signatures. That
means we are almost halfway there. If we can get to 60--we can move
mountains here when we get that magic 60 number. I hope we can get to
60 by the end of next week. That means we will have more than a
majority to say: I don't need a rule or a law; I am willing to make any
hold I have open to public inspection.
I wish to also make another unanimous consent request today. We have
a very important function in government; that is, investigating
accidents. We are getting ready to enter into the travel season. The
National Transportation Safety Board is a very important body. In fact,
they are going to be considering, in the next week, the ``miracle on
the Hudson'' accident and the problem with aviation as it relates to
the danger of birds and possible engine failure. In June, they will be
investigating the tragic Metro accident here in Washington, when 9
people died. This is one of those boards where a Democrat and a
Republican are both appointed. The Democrat has been waiting since last
December, ostensibly, for the Republican. Dr. Earl Weener has been on
the Executive Calendar for a number of weeks.
Dr. Rosekind and Dr. Weener are needed on the NTSB. If any Member has
a reason to recuse themselves, they would not have enough Members to go
forward with these investigations. This is the kind of work that needs
to be done. This is what people want the government to do. There is a
lot of stuff the government does they don't want us doing. They want us
to figure out what is going on with accidents in our transportation
system and come up with answers so we can avoid these deadly accidents
in the future. I think it is important, in light of that, that I go
ahead and make another unanimous consent request to try to confirm
these two people so they can begin working on the National
Transportation Safety Board as we enter into the most heavily traveled
period in America--the summer vacation months, when so many more
Americans are traveling with their families.
____________________
[Congressional Record: April 29, 2010 (Senate)]
[Page S2788-S2790]
UNANIMOUS CONSENT REQUEST--EXECUTIVE CALENDAR
Mrs. McCASKILL. Madam President, I ask unanimous consent that the
Senate proceed to executive session for the
[[Page S2789]]
purpose of the consideration of Calendar No. 592, Mark R. Rosekind, to
be a member of the National Transportation Safety Board, and No. 787,
Earl F. Weener, to be a member of the National Transportation Safety
Board; that the nominations be confirmed en bloc, the motions to
reconsider be considered made and laid upon the table en bloc; that no
further motions be in order; that the President be immediately notified
of the Senate's action, and that any statements relating to the
nominations be printed in the Record, as if read.
The PRESIDING OFFICER. Is there objection?
Mr. KYL. Madam President, reserving the right to object, I have no
problem with either nomination. I understand they are in the process of
being cleared by other Members. I believe that, while I have no
specific problem, we want to allow all Senators to sign off before
consent is granted.
Last week, I objected to some of the nominations to allow the two
leaders to work their clearance process on the Executive Calendar. I
understand that the two leaders worked to confirm four U.S. attorneys
later today.
Under the circumstances, as to the specific request of my colleague,
I object.
The PRESIDING OFFICER. Objection is heard.
Mrs. McCASKILL. Madam President, if I could inquire of the Senator
from Arizona for the purpose of making a clear record.
Mr. KYL. Madam President, I objected.
Mrs. McCASKILL. Madam President, I wish to make sure that the
objection--the reason I am asking to inquire is it has to be clear that
the objection is being made on behalf of someone else and not on behalf
of the Senator from Arizona.
Mr. KYL. Madam President, reserving the right to object, let me
explain this process. When a nomination is sought to be cleared by both
sides, there is what is called a hotline. All offices receive a quick
notice that a particular bill or nominee is being hotlined. If you have
a question or a concern, you register that. It is registered as an
objection until it can be cleared up. In many cases, it is cleared up
very quickly--sometimes overnight. Sometimes the two leaders need to
work out a process for it to be cleared. It is, in one sense, a hold.
As I said, I have no objection to these two people, so I am not
holding them. I am objecting on behalf of the Republican leadership in
order to enable the two leaders to clear both of these nominees; that
is, to make sure there is no objection on either side, so they can both
go forward. That is the basis for my objection.
Mrs. McCASKILL. Madam President, let me make a couple comments
concerning that.
First, Mr. Weener has been on the Executive Calendar since March 24.
So this isn't something that happened in the last couple days.
Second, it was very clear that the Senator from Arizona said he
wasn't objecting, so he is objecting for someone else. This notion that
this has something to do with the leaders working together, none of
these nominees are being held by anybody. This is not about the leader
asking for time to clear names. It is not whether somebody can hold.
Certainly, somebody can hold. The question is, After they have done it
for 6 days, they can't be secret anymore. What I am trying to do--and I
know the Senator from Arizona understands this. I am not quarreling
with somebody's ability to hold. I just need to know who is holding. It
cannot just be that we are working on it and it came over on the
hotline and give us a few days. The 6 days are up. The people who are
holding these nominees now have to say who they are.
I wished to make it clear that your objection was not your objection
to these nominees. In other words, you are not claiming the objection,
you are claiming it on behalf of someone else who will not identify
themselves. That is the point. Tomorrow is the day that all these
people need to be identified as to who is holding them. If it is
Senator McConnell holding every one, then he needs to claim them and
say: I am holding all the nominees. If it is other Members of the
caucus, then they need to claim it. It is the same for any Democrats
who are holding. I believe we had two or three nominees being held by
Democrats. They need to be published in the Congressional Record
tomorrow. But this notion that it is being held up because the two
leaders are working together, Senator Reid doesn't have anybody
being held. So I wish to make sure we got that clear.
Mr. WHITEHOUSE. Will the Senator yield for a question?
Mrs. McCASKILL. I yield to the Senator from Rhode Island for a
question.
Mr. KYL. If my colleague will yield first for a minute, I wish to
make it clear that it is precisely on the basis that I stated that I am
objecting this evening. I believe the two leaders will be able to clear
the two specific nominees my colleague asked unanimous consent for
tonight. It is truly a matter of the clearance process through the
hotline. As a result, what I said is true. It is nothing more than
that, to my knowledge.
I take all the other points my colleague made. As to my objection
this evening, I prefer to have my colleague acknowledge that what I
said is what I believe; namely, that this is a clearance process for
the two leaders through the hotline and that it is my expectation that
these nominees will be cleared through that process. It is simply not
completed.
Mrs. McCASKILL. I apologize. I didn't mean to intimate that the
Senator was saying something he didn't believe. I apologize if that is
the way it was taken.
The point is pretty obvious. We have 84 nominees backed up at the
train station, compared to 8 under the Bush administration. If anybody
can't see what is going on, they need to tune in and pay attention.
This is stall and block, stall and block, stall and block. Fine, but
own it. If you are going to stall and block, let's see who you are.
Claim it. That is all this is about. Claim it.
If you are proud of slowing the process down, we just want to know
who you are. To say this is about the two leaders clearing the hotline,
that is not what this is about. This is about the law that says you
cannot have secret holds once a unanimous consent request is made. I
will be here as many times as it takes to reform this process and end
the secret hold.
I yield to my colleague from Rhode Island.
Mr. WHITEHOUSE. First of all, I thank the Senator for her continuing
efforts on this point. I had the privilege of joining her on the first
day in moving some of these unanimous consents. She brought up 73, I
think, in 1 day, to tee up all these names under the Senate rules that
require that once a unanimous consent has been proposed, the identity
of the Senator with the hold has to be divulged in 6 legislative
days. As I understand it, the 6 legislative days run today.
Mrs. McCASKILL. Correct.
Mr. WHITEHOUSE. Therefore, tomorrow is the day when one of three
things has to take place. We can come to the floor and clear these
folks by unanimous consent because there will no longer be a secret
hold is option 1. Option 2 is a Senator would have stood up, filed the
papers that the rules of the Senate require and admit to the secret
hold, making this process transparent and open. The third is they will
have done what Senator McCaskill and I have both called the switcheroo,
and they will have gone quietly to some other Senator and said: I only
have 4 days left; I don't want to hold it till 6. If you pick up my
hold now for me, then you are after the unanimous consent request, and
we think we can dodge the rules this way.
Is it the understanding of the Senator from Missouri that those are
the three options we will discover tomorrow as to all of these 80
nominees, which category they are in?
Mrs. McCASKILL. I believe under the law, those are the only three
options available: to either withdraw the hold and let the nomination
go forward or claim the hold and publicly identify yourself or evade
the law.
Mr. WHITEHOUSE. With respect to the observation that the
distinguished Senator from Arizona made that they had just, after this
process, allowed four U.S. attorneys to be cleared, in the light of the
fact that at this time in the Bush administration there were eight Bush
administration officials who were the subject of Democratic holds, but
it is more than 80 Obama officials who are now still the subject of
[[Page S2790]]
almost exclusively Republican holds, notwithstanding what is clear
under the pressure of this initiative, we are actually down from over
100, but we are still holding at over 80 officials who are tangled up
in secret holds.
Is it a fair statement of mine to put, ``Gosh, we released four''
into the context of, ``Yeah, but we are holding 84''? That is the way
the ratio works right now; does it not?
Mrs. McCASKILL. To be fair, I know we had 84 pending at the first of
the week. I think our raising a ruckus is beginning to have a little
bit of an impact because the iceberg moved slightly this week. We may
have confirmed 14 this week of the 74, I believe, that I moved by
unanimous consent last week.
Keep in mind, all 74 I moved last week had been unanimously reported
out of committee, with no opposition from the Republican Party in
committee. None.
Mr. WHITEHOUSE. Indeed, votes in favor by the Republicans on the
committee.
Mrs. McCASKILL. Exactly. In fact, many of them were voice-voted. We
even checked to make sure no one said nay at the committee level. These
were unanimously agreed to out of committee. There were 74 last week. I
made the requests last Tuesday on the 74. The Senator from Rhode Island
made a few requests on some that were not in that group that had been
unanimously agreed to. I believe this week some of the group--maybe
some of the Senator's, maybe some of the ones on which I made unanimous
consent requests. I know we had 14 that moved. I think we are around 70
total right now. But of those, 60 of them are in this unanimous-consent
category and ones we have no idea who is holding them.
Mr. WHITEHOUSE. Of those, if I may ask another question, who have
been cleared, some have been allowed to come forward for votes on the
Senate floor. The last was Judge Chin who had been held for a
considerable period of time. We actually, if I recall correctly, had to
file cloture and take more time. There is a process built around
cloture so it burns up Senate floor time. We were forced to do that.
When the nomination was finally voted on in the Senate, is my
recollection correct that he cleared the Senate 98 to 0?
Mrs. McCASKILL. He was held for a long time. And, yes, the Senator is
correct, we had to go through all the procedural hoops that take time.
Time is money when you are working for the taxpayers. Every hour we
spend on something is an hour we cannot spend on something else.
Everyone--all the good people who are working in this room, in the
cloakrooms, and in all the offices--is paid by the taxpayers. We took
time to go through cloture. Then there was not one ``no'' vote. If that
is not a great example of obstructionism for the sake of obstructing, I
cannot think of a better one--forcing the Senate to take days to
confirm unanimously a nominee after they have held for a long period of
time.
Mr. WHITEHOUSE. Just by a process of elimination, unless one of the
two absent Senators was the one who had the hold, whoever was holding
Judge Chin actually ended up voting for him after months and months of
having delayed the nomination.
Mrs. McCASKILL. I don't know about the Senator from Rhode Island, but
I would love to know how many people secretly hold a nominee and end up
voting yes. Nine times out of ten--I should not say that. I don't know.
It is secret. I have to believe that most times people secretly hold a
nominee because they want something from an agency. In fact, I had a
Member actually acknowledge to me: I don't care what happens to that
nominee, but I need something from this agency. It is a leverage: I am
going to hold your nominee hostage until this agency gives me what I
want.
I think we remember, there was an instance that came out in public
that some people were being held for projects in their State.
Mr. WHITEHOUSE. That is the right of the Senator to do, so long as
they do it publicly.
Mrs. McCASKILL. Right.
Mr. WHITEHOUSE. They can still do that even after the secret holds.
Mrs. McCASKILL. Absolutely. If someone is trying to leverage--I do
not agree with it, but that is their right as a Senator--if they want
to leverage a project in their State by saying to the administration: I
won't let you have any nominees to go to work in that agency until that
agency gives me what I want--that is their right. People should know
about it. I don't think it would be very popular. People might have a
problem with that. That is the beauty of the secret hold. They never
have to tell that they are leveraging a nominee to get something they
want out of an agency. That is why we need to end the secret hold.
Simple.
Mr. WHITEHOUSE. Madam President, if I may conclude, I thank the
Senator for indulging me in these questions and allowing me to ask them
and for her energetic and principled leadership on this issue.
Mrs. McCASKILL. Madam President, I thank my colleague from Rhode
Island. There are so many things about the Senate I respect--the
traditions, the service. Make no mistake about it, there are so many of
my Republican colleagues who serve whom I admire and respect. They care
deeply about their country. Sometimes we disagree on issues, but that
does not diminish my respect for them as public servants and as people.
We all get along better than people probably realize we do. But there
are certain traditions around here, frankly, that are more like a bad
habit.
The tradition of comity is wonderful. The tradition of debate is
wonderful. The tradition of collegiality is wonderful, the tradition of
seniority and respecting people who have been here for a great deal of
time. So much of it has been built up over the history of this Nation,
and I am so proud to be a Member of this body in so many ways.
But there are some bad habits that are traditions of which we should
not be proud, and this is one of them. This is a tradition that needs
to end. The secret hold is a bad habit. It is a luxury in which we
should not indulge as members of a public body to serve the public on
behalf of the people for whom we work.
Our work should be open. The word ``secret'' does not have a place of
honor in this democracy. Secret, good government, that is a little bit
like oil and water. Let's do away with this bad habit. Let's demolish
this tradition for all the right reasons and go forward and have a new
tradition that from now on, if a Senator feels strongly enough about a
nominee to block their nomination, that they come forward, explain
their reasoning, and allow the people they work for to judge for
themselves whether that is a valid reason to stop a nomination.
In many instances, the people they work for may believe it is a valid
reason and may applaud them for it. But if it needs to be secret, I
don't know, I bet maybe they might not. Let's end the tradition.
I thank the Senator from Rhode Island. I also, obviously, thank, once
again, Senator Grassley. He has so many times been the conscience of
this place for so many different reasons, so many different issues. I
have greatly admired his work in the inspector general community. He
has done so much with inspectors general to strengthen them, make sure
they have independence.
He has been a great champion for accountability and transparency in
the Senate. I am proud he has worked as long as he has on trying to
stop the tradition of secret holds. He and Senator Wyden get the lion's
share of the credit that has been done on this issue over the years.
We now have 43 Senators who are willing to say: Enough already. Now
if we can just get a few more, we can nail the coffin shut on secret
holds once and for all.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
____________________
