[Congressional Record Volume 149, Number 169 (Thursday, November 20, 2003)]
[Senate]
[Pages S15252-S15255]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          ENDING SECRET HOLDS

  Mr. WYDEN. Madam President, my good friend from Montana and I have 
worked together on so many issues. He has objected to this bipartisan 
resolution which would give the Senate a chance to end one of the most 
pernicious practices in Washington, DC, and that is the practice of 
secret holds.
  Walk down Main Street anywhere in the United States, and I bet you 
would not find one out of a million Americans who know what a secret 
hold is. The hold does not appear anywhere in the dictionary. It is not 
even in the Senate rules. Yet it is one of the most powerful weapons 
that any U.S. Senator has. It is, of course, a senatorial courtesy 
whereby one Senator can block action on a bill or nomination by telling 
the respective Democrat or Republican leader that he or she would 
object. The objection does not have to be written down, and it does not 
have to be made public.
  It is a little bit like the seventh inning stretch in baseball. There 
is no official rule or regulation that talks about it, but it has been 
observed for so long that it has become a tradition.
  Now, the capacity to use this hold, which is in secret--there is no 
transparency, no accountability--the prospect of using these secret 
holds is notorious and has given birth to several intriguing offspring: 
The hostage hold, the rolling hold, and the May West hold. Suffice it 
to say, at this time of the year secret holds are more common than 
acorns around an oak tree.
  Senator Grassley and I have been working on this for almost 7 years. 
I am extremely proud that the chairman of the Rules Committee, Senator 
Lott, has joined us on this matter. Senator Byrd is a cosponsor. There 
is no one in this body who has a better understanding of the rules than 
Senator Byrd, and Senator Byrd has made it clear this practice is out 
of hand. It is out of hand because the rules are designed to expedite 
the business of the Senate and not hold it up.
  What we heard earlier in the objection to the effort to end secret 
holds is emblematic of what has happened. The objection was based on 
the idea that now was not a good time for the Senate to address this. 
It is never a good time to address it if you are in favor of doing 
business behind closed doors. If you are in favor of doing the public's 
business without accountability, it is never a good time. If you are in 
favor of doing business in secret, of course, we are never going to 
bring it up in the Senate.
  The minority leader, Senator Daschle, has been supportive of this 
effort from the very beginning. From the very first day I went to him 
to discuss this, he said: You are right. The hold is an important power 
for a member of the Senate, but it ought to be exercised with some 
accountability.

  So there was no objection from this side of the aisle. Unfortunately, 
we had an objection from the other side. I

[[Page S15253]]

think it is unfortunate because I have sought throughout--throughout--
to make this a bipartisan effort.
  Chairman Grassley and Chairman Lott deserve an extraordinary amount 
of credit for the effort to work with me and with others on this issue. 
The fact is, during this time of the session, one Member of the Senate 
can spend days asking all 99 other Senators whether they have a secret 
hold, only to find that Senator does not even know about the secret 
hold because it was generated by staff.
  The Senator who can successfully track down and lift the last secret 
hold almost feels around here as if they have won the national title.
  Every Senator has a favorite example of torturous search for the 
sponsor of a secret hold. My favorite was during the Rules Committee 
hearing on holds, Senator Dodd--by the way, who, is very supportive, 
like Chairman Lott, of this proposal--we heard about the chairman 
trying to call Senators in airports around the country, trying to find 
out who had a hold on a bill. Senator Dodd was concerned about this 
when he was faced with his election reform bill.
  I went through the very same exercise on the spam bill where I had to 
literally go from desk to desk in the Senate to find out who was 
holding up a measure that everybody was for. Everybody said they were 
against spam but there were holds, and we had to try to figure out 
where they were.
  The same thing happened on the Internet tax bill. At one time there 
were seven holds on the Internet tax bill. When I tried to find out 
which Senators had the holds, I was told that this information would 
not be shared with me.
  Think about the consequences of not dealing with that issue. I say to 
my colleagues, we may have a virtual ``Grinch'' visiting the consumers 
of this country because the Senate has not dealt with the Internet tax 
issue. Come the holiday season, if some States and localities choose to 
do it, they can go out and tax e-mail, they can go out and tax Internet 
services that are delivered through wireless devices or DSL because the 
Senate has not updated the law. I believe it has not updated the law 
because there was not the opportunity to have a real debate, and we 
were held up because there were secret holds.
  I am very pleased that the distinguished chairman of the Rules 
Committee has come to the Chamber to join me in this effort. Perhaps 
more than any other Member of this body, he understands the 
implications of this because of his service as chairman of the Rules 
Committee as well as having served as the distinguished majority leader 
of this body. He has held hearings on this issue. He reached out to 
Senator Byrd and Senator Grassley.
  We have been working on this issue for years and years. At this time 
of the session, the secret hold is all powerful. It is one of the most 
powerful weapons that a Member of Congress has. We do not seek to have 
it stripped from the Senate. We do not come together on a bipartisan 
basis to say, let us outlaw the holds. We come together--Chairman Lott, 
Senator Grassley, Senator Byrd, and myself--to say: There ought to be 
some sunshine.
  Our proposal is for sunshine holds, for saying that the powers 
exercised by a Member of the Senate should be accompanied by some 
accountability. You ought to be straight with your constituents.
  My good friend, the chairman of the committee, is here. I would like, 
without losing the remainder of our time, to yield to the distinguished 
chairman of the Rules Committee, who has been so supportive of the 
effort to end secret holds, so he could make his remarks, knowing he 
has a very busy schedule.
  The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so 
ordered. The Senator from Mississippi.
  Mr. LOTT. Mr. President, could I inquire about what time remains for 
Senator Wyden?
  The PRESIDING OFFICER. Twelve minutes twenty seconds are remaining.
  Mr. LOTT. Thank you very much, Mr. President.
  I believe this is an issue whose time has come in the Senate. It is 
an issue I am very familiar with because I have dealt with holds, both 
as a Senator as a leader. I have placed holds, and probably over the 
years some of them have been anonymous, not so much out of intent, just 
that is the way it was.
  I remember talking to Senator Wyden years ago, and Senator Grassley, 
about what we could do to have a better understanding of what a hold is 
and how it works and what could we do to stop the anonymous holds. 
Senator Daschle and I even got together on a letter and tried to 
clarify how holds should be handled, and what they mean, and how 
Members should deal with them, by telling the committee chairman or the 
sponsor of legislation that they had a hold. But there was no 
enforcement mechanism, so it did not happen.
  At this time of year, holds are particularly a problem for the 
leadership. Republican or Democrat, this is not a partisan issue 
because when they pop up right at the end of the session, it could be 
unrelated to the nominee, unrelated to the bill. They can be a part of 
a rolling hold. But with all the warts of the hold, it is something 
Senators prize, maybe even treasure. But I do not see how anybody can 
defend them being anonymous.
  If there is a secret hold on a bill or a nominee, and it is just at 
this time of year, it is almost impossible for the leadership to deal 
with it. The leader, he tries to track down who has the hold, and 
sometimes the staff will not even tell you who has the hold because 
they have a problem.
  I can remember tracking down Senators in their hideouts, finding 
Senators in airports, saying: Please, this is the Deputy Secretary of 
State or this is a Commissioner who needs to be confirmed.
  It is not good for the institution. I think someday we should even 
look at the whole practice of holds. You have an institution where one 
Senator--one Senator alone--particularly at the end of a session, can 
defeat a nominee or a bill anonymously. There is something wrong with 
that. You are putting your constituency or the constituencies of others 
and 99 Senators at the mercy of one.
  There is this feeling here in the institution that we cannot touch 
the traditions or the precedents or the rules of the Senate. They are 
sacrosanct. They are holy. How do you think they got there? Changes 
were made. Improvements were made. Or problems were created.
  So that is why I do commend Senator Wyden and Senator Grassley for 
being doggedly persistent on this issue. I do not wish to be a part of 
a process or an effort that causes difficulty for the leaders. They 
have enough problems now. They are concerned with the Energy bill, the 
omnibus bill, the Medicare prescription drug bill, the FAA bill--you 
name it. So I do not want to contribute to their problems.
  But I do think something needs to be done here. I think we need to 
address the overall issue of holds, but at the very minimum we should 
have some way to deal with secret holds.
  When we sent the letter, as I suggested earlier, we required Members 
to notify the sponsor of the legislation, the committee of 
jurisdiction, and the leaders of their hold. It had a little effect for 
a little while. Senators sort of said: Oh, yeah. OK.
  By the way, what is a hold? A hold is a notice by the Senator--to the 
staff, usually--that before a nominee or bill is brought up, they want 
to be notified so they can debate it or so they can reserve all rights 
to amendments. That is all it really is.
  Now, if it is anonymous, that makes it even more damaging. But it is 
a problem for the leader because you try to get the work completed, and 
the threat of a filibuster or endless amendments basically kills it. So 
since there was no enforcement mechanism, it just did not accomplish 
what we wanted it to accomplish.
  This resolution would place a greater responsibility on Senators to 
make their holds public. It creates a standing order that would stay in 
effect until the end of this Congress. This is something that Senator 
Byrd had suggested, that maybe was the solution that would do the job. 
We can see how it works. Let's make it a standing order, not change the 
rules. Let's make it apply to the rest of this Congress, which would be 
next year. If it works, great, we might want to build on it. If it does 
not, it is dead.

[[Page S15254]]

  The order requires that the majority and the minority leaders can 
only recognize a hold that is provided in writing. I put a hold on a 
nominee today. I said: Please put a hold on this nominee. Letter will 
follow. So I put it in writing and it is not a secret thing.
  Moreover, for the hold to be honored, the Senator objecting would 
have to publish his objection in the Congressional Record three days 
after the notice is provided to the leader. That is critical: notice. 
That is all really we are looking for here: Understand what a hold is; 
put it in writing; and make it well known.
  A hold should be left to the wrestling ring, not to the Senate, and 
it certainly should not be in secret.
  I hope the leadership, Senator Frist and Senator Daschle, will work 
with Senator Wyden and Senator Grassley to find a solution that will 
allow us to do this. The light of day always has a purifying effect. 
This is getting to be very moldy. We need to deal with it. Again, I 
emphasize, I am for this because I think it would be good for the 
institution. I am for it because I think it is the right thing to do. I 
am not for it because I am trying to cause problems with the leaders. 
Heaven forbid, I don't want to do that. Actually, we are trying to help 
them deal with a problem. They are hesitant to do it because I know 
Senators are going to slip up next to them and say: Wait a minute, you 
may not want to change anything here. This is the way it has been done.
  I challenge the Senators to stand up here and say they should not at 
least make it public. We can't have cowardice on something that is 
affecting people's lives and on legislation that affects our country.
  I guess I am getting a little carried away. I agree with the Senator. 
I am going to continue to work to try to find a way to be helpful in 
getting this issue addressed because I think it is time we do it.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, how much time remains under my control?
  The PRESIDING OFFICER. Twelve minutes 20 seconds remain.
  Mr. WYDEN. I thank the Chair.
  Mr. KYL. Will the Senator yield for a question?
  Mr. WYDEN. I am happy to yield without losing my time.
  Mr. KYL. Mr. President, I ask unanimous consent that following the 
Senator from Oregon, at the conclusion of his remarks, the order of 
speaking be Senator Sununu for 15 minutes, Senator Lautenberg for 15 
minutes, Senator Murkowski for 15 minutes, Senator Cantwell for 30 
minutes, and Senator Kyl for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Oregon.
  Mr. WYDEN. Mr. President, before he leaves the floor, I thank the 
distinguished chairman of the Rules Committee for his eloquent 
statement. He has been so supportive of this effort. Essentially what 
he and I and Senator Grassley have been talking about is the quaint 
notion that the public's business ought to be done in public. This is 
not a complicated idea.
  As I have mentioned earlier, I am sure the vast majority of Americans 
have no idea what a secret hold is. It is not written down anywhere. 
This is something you wouldn't find 1 of 1,000 people having any idea 
about. But this is, in fact, one of the most powerful weapons, one of 
the most significant tools a Member of this body could possibly have. 
It is utilized without any accountability whatsoever.
  The distinguished chairman of the Rules Committee pointed out in 
hearings, and we heard it echoed by Senator Dodd, the bizarre kind of 
process of trying to track down Senators who are thousands of miles 
away from Capitol Hill and still claiming to have an objection when, in 
a lot of instances, they may not even know about it; their staff will 
have objected to it.
  So what we have sought to do in this effort is to not limit the 
powers of any Member of the Senate but simply to say that power ought 
to be accompanied by responsibility. Yes, there should be rights. There 
ought to be rights of every Member of the Senate to stand up and be 
heard on matters important to their constituents and to this country. 
But there also ought to be responsibilities.
  Chairman Lott has addressed this issue very eloquently by saying one 
of our most important responsibilities is to let the public see what we 
are up to. Yes, sunlight is the best disinfectant, but it is especially 
important, as Chairman Lott has noted, at the end of a session.
  If someone exercises a hold in the beginning of a session, there is 
an opportunity, as the distinguished chairman of the committee has 
noted, for the leaders to come together with the chairs and work out an 
effort to resolve a matter in a process that is fair to all sides.
  When you are down to the last few days of a session and you are 
talking about a measure that may involve billions of dollars, the well-
being of millions of our citizens, someone can exercise the power to 
hold up the public's business without any accountability whatsoever. 
What happens is then the leaders and the chairs traipse all over here, 
practically going almost the equivalent of door to door, desk to desk 
on the Senate floor. It got to a point, when I was trying to deal with 
one particularly exasperating hold, where a Senator came up to me and 
apologized because he was told there was a hold about which I was 
concerned. He said: I knew nothing about it. It was put on by a staff 
person. I asked for its removal.
  There are a variety of technical issues on which Chairman Lott and 
Chairman Grassley and Senator Byrd and I have worked. There is a 
difference between a consult and a hold. A consult, in effect, is just 
a request to be informed when a measure is going to be brought up. A 
hold is something different. A hold is when you want to shut down the 
effort to go forward and examine an important issue altogether. It is 
all powerful in the last few days of a session, as the distinguished 
chairman of the Rules Committee, Senator Lott, has noted.
  There is something very wrong with the process when, in effect, you 
have to traipse all over the Senate trying to figure out whether or not 
your measure is going to see the light of day.

  We have had an objection to our bipartisan effort today, but I think 
I speak for all of the sponsors when I say we are going to be back at 
it. Chairman Lott has initiated a very important process in the Rules 
Committee to examine some of the antiquated practices of the Senate. 
The holds is one that we see working great injury in the last days of a 
session. But under the leadership of Chairman Lott, we are going to be 
looking at other practices in the Rules Committee. I think that is long 
overdue. I have great confidence that the chairs, Chairman Lott, 
Chairman Grassley, Senator Byrd, who knows more about the rules of the 
Senate than I could ever dream of knowing, are going to be able to work 
with us on a bipartisan basis to address this responsibly.
  We have done that. We have asked only that this be done for the rest 
of this session. I personally do not believe Western civilization is 
going to come to an end because a Member of the Senate has to be clear 
about whether or not they are holding up the public's business. But to 
make it absolutely clear what would transpire, we have in effect a test 
period, as Chairman Lott has described it, to examine the effect of our 
sunshine holds, a process that would end some of the stealth and 
secrecy that surround this issue.
  I ask unanimous consent to add Senator Dayton as a cosponsor of S. 
Res. 216.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. I see Senator Lott and other colleagues have other 
business to attend to. I will wrap up only by quoting the foremost 
authority on Senate rules who served as majority leader of the 95th, 
96th and 100th Congresses; that is, our friend and colleague, Senator 
Robert C. Byrd. In chapter 28, ``Reflections of a Party Leader,'' 
volume 2 of his publication in the Senate, Senator Byrd wrote:

       To me, the Senate's rules were to be used when necessary to 
     advance and to expedite the Senate's business.

  Giving the sunshine hold a place in the Senate's rules, creating 
sunshine holds so as to ensure that there is new openness and new 
accountability in the way the Senate does its business, seems to me to 
be an ideal way for the Senate to honor those eloquent words of Senator 
Byrd.

[[Page S15255]]

  We have not been successful today, despite the best effort of 
Chairman Lott, Senator Grassley, and others. But we will be back. This 
practice is continuing to increase. Even when I came to the Senate, I 
found it used frequently but not to the extent it is being used today. 
It is time to do the public's business in public. We will stay at this 
effort to accomplish just that.
  I yield the floor.
  Mr. GRASSLEY. Mr. President, I rise in support of the resolution to 
end secret holds in the Senate. Senator Wyden and I have worked long 
and hard on this issue and it is time for the Senate to act decisively 
to reject the practice of placing anonymous holds.
  A hold, which allows a single Senator to prevent a bill or nomination 
from coming to the floor, is a very powerful tool. Holds are a function 
of the rules and traditions of the Senate and they can be used for 
legitimate purposes. However, I believe in the principle of open 
government. Lack of transparency in the public policy process leads to 
cynicism and distrust of public officials. I would maintain that the 
use of secret holds damages public confidence in the institution of the 
Senate.
  Our resolution would establish a standing order for the remainder of 
this Congress that holds must be disclosed publicly. For my colleagues 
who might be apprehensive of this change in doing business, I would 
point out that this measure would only be in effect for the current 
Congress and would not formally amend the Senate rules. Nevertheless, a 
standing order has essentially the same force and effect in practice as 
a Senate rule. I have no doubt that, once instituted, this reform will 
be found to be sound and no reason will be found why it shouldn't be 
renewed in subsequent Congresses.
  For several years now, I have made it my practice to publicly 
disclose any hold I place in the Congressional Record, along with a 
short explanation. It's quick, easy and painless, I assure my 
colleagues. Our proposed standing order would provide for a simple form 
to fill out, like adding a cosponsor to a bill. The hold will then be 
published in the Congressional Record and the Senate calendar. It is as 
simple as that.
  I am very pleased to have the support of Chairman Lott and Senator 
Byrd on this initiative to require public disclosure of holds. Earlier 
this year, Chairman Lott held a hearing in the Rules Committee on the 
Grassley-Wyden resolution to require disclosure of holds. Since that 
time, my staff has worked together with staff members for Senators 
Wyden, Lott, and Byrd to come up with what I think is a very well 
thought out proposal to require public disclosure of holds on 
legislation or nominations in the Senate. I think it says a lot that 
this proposal was written with the help and support of Senator Lott and 
Senator Byrd. As the chairman of the Rules Committee and a former 
majority leader, Senator Lott brings valuable perspective and 
experience. It is also a great honor to be able to work on this issue 
with Senator Byrd, who is also a former majority leader and an expert 
on Senate rules and procedure.
  I am disappointed that we cannot move forward with this resolution 
now, but I would urge my colleagues to join the growing coalition of 
Senators who are working to shed some sunlight on some of the most 
shadowy parts of this body so that we can ensure open and honest debate 
on the issues before the American people. I believe that the more we 
talk about secret holds, the more the consensus grows that this is an 
issue that must ultimately be addressed by the full Senate. You can be 
assured that we will keep pushing forward until that happens.
  The PRESIDING OFFICER. The Senator from New Hampshire is recognized 
for 15 minutes.

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