Momentum is building to end secret holds

By Robert Brodsky

June 23, 2010

The Senate might finally be prepared to end the much-derided practice of holding up presidential nominees or pending legislation without any debate or accountability.

Capping a two-month effort, Sen. Claire McCaskill, D-Mo., told the Senate Rules and Administration Committee on Wednesday that she had collected the signatures of 68 colleagues pledging to no longer place secret holds and asking Senate leadership to formally end the practice. Amending the Standing Rules of the Senate requires 67 votes.

Fifty-six Democrats, two Independents and 10 Republicans have signed the petition, McCaskill said. West Virginia Sen. Robert Byrd was the only Democrat who declined to join the effort. Byrd has long resisted changing the Senate rules.

McCaskill argued anonymous holds have diminished the stature of the Senate and damaged American democracy. "Secret holds are being used as a political tool, not to learn more about a nominee," she testified. "And, both parties are guilty of it."

As of June 17, 137 Obama nominees were pending in the Senate. At the same point in his first term, President George W. Bush had only 45, according to Committee Chairman Sen. Chuck Schumer, D-N.Y. The Senate chipped away at that figure on Tuesday, confirming 64 executive nominees by unanimous consent after breaking a stalemate over National Labor Relations Board appointees.

In total, Obama nominees are waiting about three weeks longer for confirmation than Bush picks, Schumer said. There is no data on the number of nominees who have been subject to a hold, secret or otherwise.

The delays have had serious consequences for the management and operations of the federal government and the ability to recruit qualified nominees, according to Thomas Mann, senior fellow of governance studies at the Brookings Institution.

"Able individuals willing to serve their country are subject to uncertainty and major disruptions in their personal and professional lives," Mann testified. "Huge amounts of precious time in the White House and Senate are diverted from much more pressing needs."

Senators, particularly in the minority party, have long used holds to express policy disagreements and to exercise leverage over the majority. But lawmakers on both sides of the aisle suggest the practice has devolved in recent years to a way to score political points against the opposition.

"If a senator has a legitimate reason to object to proceeding to a bill or nominee, then he or she ought to have the guts to do so publicly," said Sen. Chuck Grassley, R-Iowa.

Grassley has worked on reforming the holds process for 12 years with Sen. Ron Wyden, D-Ore., but even the language that made it into law has been poorly enforced. "The stalling on secret holds has gone on long enough," Wyden said.

In 2007, for example, the Senate passed an ethics reform bill that required senators to disclose their secret holds within six working days. But, the provision has proved difficult to enforce as members have simply requested -- in secret -- that a colleague take over their hold.

"These are human lives. Good people have agreed, often at significant personal sacrifice, to serve their country," said G. Calvin Mackenzie, professor of government at Colby College in Waterville, Maine. "And far too often we treat them like pawns in a cruel game. They're forced to put their lives on hold, to step aside from their careers and jobs, to forgo income, and then to twist in the wind while the fates of their appointments are decided by a Senate with little or no sense of urgency."

Mackenzie echoed the opinion of several witnesses that there are far too many political appointees and unnecessary confirmation hearings for low-level nominees.

"Where matters get off the rails is the mid-level management of the executive branch on which the Senate insists on providing advice and consent," said W. Lee Rawls, a faculty member at Washington's National War College.. "There are a variety of ways to address this issue, but overall the Senate insists on confirming too many nominees. The problem is not the filibuster. It is the Senate's inability to set priorities."


By Robert Brodsky

June 23, 2010

http://www.govexec.com/oversight/2010/06/momentum-is-building-to-end-secret-holds/31788/