Secret Holds

Floor Speech

SECRET HOLDS -- (Senate - September 19, 2007)

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 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 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.

BREAK IN TRANSCRIPT

Source