[Congressional Record Volume 144, Number 82 (Monday, June 22, 1998)]
[Senate]
[Pages S6757-S6759]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              SECRET HOLDS ON NOMINATIONS AND LEGISLATION

  Mr. WYDEN. Madam President, only 52 legislative days remain in this 
session. Dozens of nominations are pending, and more than 400 items are 
on the calendar. Being an election year, this

[[Page S6758]]

is a recipe for the explosion of a little-known procedure, but one that 
is extraordinarily important as the Senate moves to the end of the 
session. I speak today about the issue of secret holds on nominations 
and legislation before this body.
  Nowhere in the Constitution nor in our Federal statutes is there any 
mention of the right of a U.S. Senator to put a secret hold on a bill 
or a nomination. Nevertheless, this power is one of the two or three 
most significant powers that a Member of the U.S. Senate can have. In 
effect, this power allows any Member of the U.S. Senate, in secret, to 
block a nomination or a piece of legislation from even being considered 
on the floor of this body.
  I have talked to citizens at home about this. They are stunned that 
any Member of the U.S. Senate would have the power to be able to block 
something. But what really galls them is the right to do it in secret 
without there being any accountability whatsoever.
  I am of the view that it is appropriate that Members of the U.S. 
Senate, in efforts to represent our constituents, have the power to 
make decisions that are going to affect dramatically the lives of 
millions of Americans. But I think that extraordinary power ought to be 
accompanied by real responsibility. Certainly if one Member of the U.S. 
Senate is going to block this body from even considering a bill or a 
nomination, it should be accompanied by public disclosure.
  Our friend, Senator Grassley, has come on to the floor. The Presiding 
Officer and our colleagues know that for more than a year he and I have 
been trying to bring some sunshine to the U.S. Senate. We have been 
trying to change the rules so that if a Member does singlehandedly seek 
to block a nomination or a bill from coming to this floor, they would 
be required, as part of the Standing Order of the Senate, to stipulate 
in the Congressional Record that they were, in fact, that individual.
  We are moving to that part of the legislative session where the 
secret hold is most abused. Very shortly, in this body we will begin a 
game that I call legislative hide and seek. We will have holds on 
nominations and bills. Outside this Capitol Building there will be 
lobbyists trying to figure out who has put a secret hold on a 
particular bill or nomination. And this entire process contributes to 
the cynicism and skepticism that so many Americans have about our 
government today.
  Madam President and colleagues, it came to light in the fall of 
1997--which, as we all know, wasn't an election year--that there were 
42 holds in play at one time. As I mentioned, this game of legislative 
hide and seek was underway outside these Chambers.
  At that time, Senator Grassley and I were able to win on a voice vote 
an amendment to change the Senate's Standing Orders to require public 
disclosure of a hold. But then, in what was really the ultimate irony, 
our effort to end secret holds was secretly killed in a conference 
committee and vanished when the D.C. appropriations bill was brought 
back before the Senate.
  I hope now with just over 50 legislative days remaining, that the 
Senate would on a bipartisan basis change this particular longstanding 
tradition--a tradition noted nowhere in the Constitution, our Federal 
statutes or Senate rules--and bring some openness and some sunshine to 
this body.
  The hold started out as simply an effort to try to accommodate our 
colleagues. If a Member of the U.S. Senate had a spouse who was ill or 
a relative who faced a particular problem, they could, on a Monday, 
say, ``I can't be there on Tuesday, would it be possible to hold things 
over for a couple of days so I could address a matter that was 
important to my constituents?''
  That is not what Senator Grassley and I are talking about. We are not 
talking about the right of a Senator to be present to discuss an issue 
important to them and to their constituents. We are talking about 
making sure that when a Member of the U.S. Senate digs in and digs in 
to block a particular nomination or a bill from either coming to the 
floor or ever being considered at all, that at that point they would be 
required to disclose publicly that they are the individual who is 
blocking consideration by the Senate.
  Under our amendment no Member of the U.S. Senate would lose their 
power to place a hold on a bill. A Senator's power would be absolutely 
unchanged with respect to the right to place a hold on legislation. All 
that Senator Grassley and I are saying is when you put on that hold, be 
straight with the American people. Let the Senate and let the American 
people know that you are the person who feels strongly about a 
particular issue. Make sure that it is possible, then, for us to find 
out where in the discussion of a particular nomination or piece of 
legislation the Senate is considering there is a problem. This has not 
been the case, and this situation is getting increasingly serious.
  In the two years since I have been here I have seen more and more 
abuse of this process. We are seeing in a number of instances that even 
the Senators themselves don't know that a hold is being placed in their 
name. I have had Senators come to me and say, ``I learned that one of 
my staff''--or someone else's staff--``put a hold on a bill,'' and the 
Senator I was working with didn't even know that a hold had been placed 
on the legislation.
  This ought to be an easy reform for the U.S. Senate. It simply would 
require openness, public disclosure, and an opportunity for every 
Member of the Senate and for the American people to know who, in fact, 
feels sufficiently strongly about that bill, that they are the one 
keeping this body from considering it.
  A number of public interest organizations and opinion leaders have 
come out in favor of the effort being pursued by myself and Senator 
Grassley. I will close my opening remarks and then yield my time to 
Senator Grassley, with just a quick statement from a Washington Post 
editorial that came out in favor of this effort.
  The Washington Post said:

       It's time members of the Senate stand up and answer to each 
     other and the public for such actions. What are they scared 
     of?

  That, Madam President, is what this issue is all about. It doesn't 
pass the smell test to keep this information from the American people. 
There is not a town meeting in our country where it is possible for a 
Member of the U.S. Senate to say, ``I'm involved in making decisions 
that affect millions of people and billions of dollars, but you know, 
I'm not going to tell you anything about it. I'm not going to let you 
in on this particular procedure.''
  Again, this is a procedure that has evolved over the years, that is 
written down nowhere, not in the rules, not in the statutes, and not 
even in the Constitution.
  Madam President, it is time to ensure that when Senators exercise the 
extraordinary powers that we are accorded in the Constitution and the 
laws of our land, that those powers be met with responsibility, powers 
that make it clear that when there is legislation affecting billions of 
dollars and countless Americans that we are going to let the public in 
on the way the Senate does its business.
  Senator Grassley and I filed our amendment to the Department of 
Defense authorization bill. It is our intention to bring this 
bipartisan amendment before the Senate at the earliest opportunity. We 
want to make it very clear that between now and the fall, when we are 
likely to have 60, 70, 80 secret holds and this game of hide and seek 
is being played all over the Capitol, Senator Grassley and I want to 
have the Senate rules changed so that the public will know at the end 
of a session how and when these important decisions are being made.
  Before I conclude, let me just say to my colleague from Iowa, who has 
joined us on the floor to speak after me this afternoon, I have enjoyed 
working with him on many issues. I serve on the Senate Aging Committee, 
which he so ably Chairs, but I am particularly appreciative of the 
chance to work with him on this issue. We have had a bipartisan team 
pursuing this matter for many, many months. We want it understood that 
there is absolutely nothing partisan, nothing Democrat, nothing 
Republican, about our desire to bring real openness and accountability 
to the U.S. Senate. This isn't about partisan politics. This is about 
good government. This is about making sure that in the last days of a 
Senate session we are no longer playing legislative hide and seek, but 
are making decisions in a way that we are accountable to the public, 
and that the American people can follow. We want to contribute to 
confidence in the way the

[[Page S6759]]

Senate does its business, rather than to what we face today, which is 
additional skepticism and cynicism by virtue of the fact that the 
Senate does so much business at the end of a session in secret.
  I thank my colleague from Iowa, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Parliamentary inquiry. Is there any time limits? I know 
we vote at 5:00.
  The PRESIDING OFFICER. The Senate is in morning business until 5:10, 
at which time a vote will occur.
  Mr. GRASSLEY. Madam President, before I start to debate this issue, I 
should say thank you to my colleague from Oregon for his leadership in 
this area. He has worked very hard on it. I have been very happy to be 
supportive of him--and I am fully supportive of him. I have told him 
how secret holds have affected me and now both he and I practice what 
we preach--that is, we declare our intentions to put a hold on a piece 
of legislation if we decide to take that action. Obviously, being open 
about placing a hold has worked for us and it is a sound practice.
  I want to state the proposition that eventually what is right is 
going to win out in the Senate. I know that constituents are skeptical 
about right winning out in this body, and I suppose sometimes it takes 
a long time for right to win out; but I believe if you feel you are in 
the right, and that you are pursuing the right course of action and, 
particularly, as in this case, when your opponents don't have a lot to 
say about what you are trying to do, I think you can be confident that 
you are pretty much on the right course. There wasn't much opposition 
to this expressed on the floor of the Senate last year. My guess is 
that there won't be a lot expressed this year either, and eventually we 
will win. I think we will win this year. But if we don't, we are going 
to win sometime on this proposition because it is so right and because 
we are not going to give up.
  I know persistence pays because it took me about 6 years, ending in 
1995, to get Congress covered by a lot of legislation that it exempted 
itself from. A lot of laws were applicable to the rest of the country 
and were not applicable to those of us on Capitol Hill. That was wrong. 
It was recognized as being wrong. So I presented the motions to 
accomplish the goal of getting Congress to obey the laws everyone else 
had to follow. They were hardly ever argued against on the floor of 
this assembly. But in the ``dark dungeons'' where conference committees 
are held, somehow those provisions were taken out--until after about 6 
years of discussing the issue of congressional exemptions, and the 
public becoming more aware of this shameful situation, finally there 
was enough embarrassment brought to Congress that we could not keep 
that exemption from those laws any longer. So we passed the 
Congressional Accountability Act early in 1995. It was the first bill 
signed that year by the President of the United States. We have ended 
those exemptions that were so wrong.
  I still remember that, early on in that period of time, how my 
colleagues would just say privately to me, ``What a terrible 
catastrophe it is going to be for the Congress to have to live under 
these laws that apply to the rest of the Nation''--laws like civil 
rights laws, worker safety laws, et cetera. We have had to live under 
those laws for 3 years now, and it hasn't harmed us at all. It has been 
good for the country to have those of us that make laws have to 
actually understand the bureaucratic morass and red tape you have to go 
through to meet those laws, and some of the conditions on employment, 
some of the working conditions in the office, some of the wage and hour 
issues that private employers have to go through. We understand those 
now. We have to be sympathetic to their arguments more because we have 
to live under those laws.
  Well, that is one example of right ultimately winning. That brings me 
to what is right about this. There are plenty of reasons for holds, and 
there is nothing really wrong with holds. There is nothing that our 
legislation says is wrong with holds. But the reasons can be purely 
political. Sometimes holds are put on for one colleague to use as 
leverage with another colleague, to move something that maybe another 
individual is blocking. There can be truly flawed legislation, and 
maybe there such holds legitimately allow more time to work things out. 
However, other holds can be purely a stalling tactic. A hold could be 
all could be for all of those reasons and more. It doesn't matter what 
the reason is. We don't find fault with those reasons. We only say that 
the people that are exercising the hold, for whatever reason, ought to 
say so, and why.
  It is going to cause the Senate, I think, with our amendment, to be 
run more openly and efficiently. It is going to lift one of the veils 
of secrecy. It is not going to lift all of the veils of secrecy in a 
parliamentary body. I don't know that I would call that all of them be 
lifted. I am not sure I could even enumerate all of the layers of 
secrecy that might go on. But this is one form of secrecy that is not 
legitimate.
  As I said, we do not ban holds or the use of them, for whatever 
reason they might be made. We just stipulate that they must be made 
public so that we know who is putting the hold on. We would like to 
know why the hold is being put on, but that is not even a requirement 
in our legislation. Just tell who you are. You don't even have to say 
why. It is pretty simple. It is pretty reasonable.
  A lot of my colleagues, I think, fear retribution. If they are 
putting a hold on for a legitimate reason, why should they have to fear 
that? Maybe the greater good of the body, the greater good of the 
country would be their motivation. They might think they would 
experience some sort of retribution and that is why they may not want 
their hold to be known. I say that, after 2 or 3 years of practicing 
open holds myself, there is no fear of a hold being known. I can tell 
you this: I probably was somewhat nervous the first time I announced 
that I was going to make public in the Congressional Record why I was 
putting a hold on. I thought that maybe I was opening myself up to a 
lot of retribution, a lot of trouble that I don't need. I probably 
don't use holds very often. You could probably count the number of 
times on one hand that I would use a hold in the course of a Congress. 
Regardless, the times that I have done it, I can tell you that there is 
no pain. No harm came to me. There is no retribution that came to me as 
a result of it from any of my colleagues. And 98 others beside Senator 
Wyden and myself could do that, and they don't.
  I can tell you about the problems I have had finding out who has a 
hold, why they have a hold; and then we have had these rotating holds 
where somebody has found out and some friend will put a hold on in his 
place. You run those things down. It is not a very productive way to be 
a Senator. If I can go to the Congressional Record and find out who 
doesn't like my proposition, who doesn't like this nominee, et cetera, 
I can go to that individual and just talk up front about the reason, 
and I think it will even speed up the work of the Senate. If each 
Senator can be a little more efficient, then the Senate is going to be 
a little more efficient body as a whole.
  So this is one of those things that, from every angle--every reason 
for making a hold open is a good reason. Look at all of the prospective 
opposition to it and the reasons for the opposition. First of all, 
people don't very freely express opposition to it. But when they do 
express an argument against making holds open, it is not a very good 
reason to be against it. When you have these public policy arguments 
for making holds open that are good, good, good, why should we waste 
any time? They just ought to be adopted; they ought to be a part of the 
practice and make the public's business more public. That is what the 
Wyden-Grassley amendment is all about. I hope my colleagues will 
support us in this effort.
  I yield the floor.
  Mr. INOUYE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.

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