This article first appeared in the St. Louis Beacon, Jan. 18, 2011 - WASHINGTON - With dozens of federal judges and other nominees for U.S. government jobs held in limbo for months as they await Senate confirmation, an effort is now underway to make it tougher for individual senators to "hold" such nominees -- or pending legislation -- without owning up to their role.
The target of the initiative, led by a bipartisan group of four senators including Sen. Claire McCaskill, D-Mo., is the "secret hold" -- the ability of an individual senator to block anonymously a nominee or a bill by simply placing what's called a "hold" on it, delaying a Senate debate or vote. Over the years, both Republicans and Democrats have used the procedure to stop or delay action on scores of nominees and bills.
When the 112th Congress opened its doors this month, McCaskill joined Sens. Ron Wyden, D-Ore., Chuck Grassley, R-Iowa, and Susan Collins, R-Maine, in introducing the Secret Holds Reform Resolution. That proposed rule change would require all holds to be submitted in writing and automatically disclosed after two days -- severely limiting the power of one senator to hijack the legislative process without being held accountable to the public.
It is the same bill that languished in the Senate last year, but McCaskill told the Beacon in an interview this month that she hopes for action when the Senate reconvenes later this month. "We've been working on a bipartisan approach to stop secret holds for over a year," she said, and "we're going to continue to push" for the change.
One complication, Senate observers say, is that the secret holds resolution may end up being considered at about the same time as a more controversial proposal, sponsored by Sen. Tom Udall, D-N.M., that would place restrictions on aspects of Senate filibuster -- the rules under which a minority of 41 senators can block approval of a bill.
That proposed rule change is strenuously opposed by Senate Minority Leader Mitch McConnell, R-Ky., who argues that nominees and legislation should have broad support to win Senate approval.
"The founders crafted the Senate to be different," McConnell said in a Senate speech this month that focused more on proposed changes in the rules governing filibusters. "They crafted it to be a deliberate, thoughtful place. And changing the rules ... would unalterably change the Senate itself."
McConnell and Senate Majority Leader Harry Reid, D-Nev., have been discussing a possible compromise on how the rules changes might be considered later this month. They have suggested that the chairman and the ranking Republican on the Senate Rules Committee -- Sens. Chuck Schumer, D-N.Y., and Lamar Alexander, R-Tenn., -- lead a working group to study ways to streamline the confirmation process. One way would be to make it tougher for individual senators to hold up legislation and nominees and to reduce the number of filibusters.
While Alexander strongly opposes any change in the filibuster rules, he told the Senate this month that he would support ending the secrecy on holds. One reason is that, when he was nominated to be education secretary, a Democratic senator had held up his nomination with such a tactic. The "secret hold ... is an area that has had a lot of work and has bipartisan support," Alexander said.
McCaskill told the Beacon that she is "shaking my head at the notion of some Republicans that doing away with secret holds is a 'power grab.' They can argue about all the filibuster stuff, but it seems to me that if they are ... sanctimoniously preaching transparency and accountability in government, then they ought to be rushing to assist us in changing the rules to eliminate secret holds."
But changing the rules is tough. For a decade, Wyden and Grassley tried in various ways to eliminate secret holds. Their amendment to an appropriations bill in 1997 was removed in conference with the U.S. House. A 2006 Wyden-Grassley amendment requiring that secret holds be disclosed after three days passed the Senate, but it was later changed to require disclosure after six days only after a nomination or piece of legislation is called up on the Senate floor.
Meanwhile, U.S. district and appellate courts have more than 90 judicial vacancies. In a report at the end of last year, Supreme Court Chief Justice John Roberts complained that "each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes."
In some cases, the holds are not secret. For example, Louisiana's two senators blocked nominations last fall to protest the freeze on offshore drilling after the Gulf oil spill. For the same reason, Sen. Mary Landrieu, D-La., blocked a vote on Obama's choice to be budget director, Jack Lew, for more than a month. At the end of the last session of Congress, 43 nominees, including judges, awaited a vote by the full Senate.
Last summer, McCaskill joined her colleagues in publicizing the abuses of secret holds and wrote a letter, signed by 68 senators, calling for them to be stopped. The Secret Holds Elimination resolution would require that all holds on legislation and nominees be submitted in writing and automatically printed in the Congressional Record after one legislative day -- whether the bill or nomination has been brought up for floor consideration or not. That would stop the common practice of using secret holds to prevent bills from reaching the Senate floor indefinitely.
"For too long, secret holds have given one senator the power to grind the legislative process to a halt without any accountability," Wyden said in his Senate speech this month. "The bipartisan group of senators standing up against this practice is growing. The tide of reform is moving with us and the Senate must be able to take an up-or-down vote on the merits of secret holds to show who the allies of transparency are -- and who are the allies of obstruction."
Grassley said such holds protect the rights of individual senators, but he contended that "there must be public accountability." If a senator has a legitimate reason to object to a bill or nominee, then he or she ought to have the guts to do so publicly, Grassley said in a Senate speech. "There is no legitimate reason for any senator to ever have to, if they place a hold to have that hold be secret."
Not every senator wants to limit holds although many of them say they typically make theirs public. "I've held things in the past," said U.S. Sen. Dick Durbin, D-Ill., and the Senate's second-ranking Democrat. "I don't do it frequently, but when I do it -- and I do it publicly -- there's a reason for it. I held up a Bush administration appointee and asked for a receipt of some information. They provided it and I lifted the hold."
However, Durbin told the Beacon in an interview last month that when [numerous holds] become a wholesale effort to stop everyone -- including non-controversial nominees -- "I think it's an abuse." Durbin is backing efforts to tighten Senate rules on filibusters.
In an interview last month, former Sen. Christopher "Kit" Bond, R-Mo., told the Beacon that holds can be useful and he opposed restrictions on their use. "When I hold up somebody, I'm proud to do it. I've done it to get attention in both Republican and Democratic administrations," Bond said.
As an example, Bond said, "I held up a nomination to focus the attention of the federal bureaucracy" about problems at a federal building complex in Kansas City, because "someone was not paying attention to our constituents."
But McCaskill said she wants senators to be clear and open on their reasoning when they stop a nominee or a bill. "You want to hold something, hold it, but let the people decide whether or not you're being reasonable," she said in a Senate speech. "What I was disgusted to learn is how many people were using secret holds ... to get something else. I'm going to hold this nominee in this department because I want money for a community center in my town."
McCaskill added: "It's like you secretly hold something so you can get them to get something else. That's the essence of the backroom dealing that people are disgusted with. Own it, be proud of it, defend it, debate it, but don't hide it. And that's what this is all about."