Some senator has put a “secret hold” on the Coburn/Obama bill that would create a user-friendly, public database of all government spending. By 1:20 p.m. today, 75 senators have responded to scores of emails and phone calls from bloggers and blog readers, stating they were not the ones who placed the hold.
The situation raises some questions. Who knows the identity of the secret holder? How is the holder’s identity kept secret? And why is this practice even honored?
First things first: the holder’s identity is known to the holder and to either Senate Majority Leader Bill Frist (R-TN) or Minority Leader Harry Reid (D-NV), and possibly a leader’s secretary. It could be known by others, but according to practice a hold is placed merely by telling your party’s Senate leader or secretary. That’s the word from Don Ritchie, associate Senate historian. (Vice President Cheney, who is also the President of the Senate, cannot place a hold on a bill, Ritchie confirmed.)
Oddly, proponents of “secret holds” believe they’re not a minor quirk of Senate procedure, but actually an important part of what keeps the Senate functioning, Ritchie told me. Despite this, the practice of honoring secret holds has no basis in law. It has no basis in Senate rules. And it has no basis in Senate precedents — a byzantine collection of many hundreds of rules developed over time by lawmakers, collected and codified by the Senate parliamentarian.
In fact, the practice was briefly banished in 1997.
Then-Majority Leader Trent Lott (R-MS) and then-Minority Leader Tom Daschle (D-SD) agreed that for the 106th Congress, anyone wishing to hold a bill had to tell the bill’s sponsor and the chair of the appropriate committee. But the ban on anonymity didn’t last.
“They needed it,” Ritchie said. “What they found, I think, was that if you force people to identify themselves, they become less cooperative.” In other words: if the world’s going to know I’m stopping this bill, I’m not going to be subtle about it and tell you beforehand. I’ll wait until it’s on the floor, and waste your time.
Why is that so? One has to understand the practice of the Senate, Ritchie explained.
In the House, bills are considered only after strict limits are set on the legislation, including the length of debating time and the number of amendments which can be added. “The Senate doesn’t have anything like that,” Ritchie said.
Votes can be put off indefinitely; debates could go on forever. That’s a good flexibility for a deliberative body to have — but it makes it hard to get stuff done.
When Lyndon Johnson, a former Representative, became Senate majority leader in the 1950s, he wanted to change the slow pace of progress in the upper chamber, Ritchie said. So, with the majority leader’s authority to set the legislative agenda, he started using something called “unanimous consent” to set parameters on bills up for consideration: if everyone could agree on the length of time for debate on a particular bill, then he would put it on the agenda. If not, he’d put it on a back burner and allow other bills to progress.
“Johnson raised this to a fine art in terms of controlling what was going on,” Ritchie told me. “And the Senate went along with it because it made things more efficient and more predicatable.”
The reliance on unanimous consent also put more power in the hands of individual senators. “Even the greenest senator from the minority party could hold up a bill.” With anonymity, senators were more comfortable signaling their dissent in advance. The legislation gets held, the Senate progresses on other business, and the majority leader doesn’t get surprised by a single dissenter while shepherding bills on the floor. Everybody wins.
Except, as we know, they don’t. In some cases, an anonymous hold appears to serve no other purpose than to allow a senator to hold up a piece of popular legislation without being named.
Sen. Charles Grassley (R-IA), who discloses his holds as a matter of practice and example (“I’m a laboratory for my colleagues,” he told Roll Call several years ago), has introduced an amendment to force all senators to identify themselves when placing a hold on a bill. It’s attached to the lobbying reform bill, which is currently stalled in a House-Senate conference committee. That panel can choose to keep the provision or strip it from the final legislation before sending it to President Bush’s desk to sign.
