[Congressional Record Volume 153, Number 139 (Wednesday, September 19, 2007)]
[Senate]
[Pages S11742-S11744]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              SECRET HOLDS

  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

[[Page S11743]]

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

[[Page S11744]]

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.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  August 24, 2007.
     Hon. Dianne Feinstein,
     Chairwoman, Senate Committee on Rules and Administration, 
         Washington, DC.
       Dear Chairwoman Feinstein: I am seeking clarification of 
     the intent of several changes made to the original Senate-
     passed provisions on disclosure of Senate holds in S. 1, the 
     Legislative Transparency and Accountability Act. As you know, 
     Senator Wyden and I , along with Senators Lott and Byrd, 
     drafted the original provisions that have previously passed 
     the Senate overwhelmingly. I have contacted the office of the 
     Senate Parliamentarian seeking clarification about how the 
     altered provisions would be interpreted and the initial 
     reaction was that, the legislative intent was not 
     sufficiently clear without more information on the 
     legislative history to determine how the provisions would be 
     applied in many circumstances. This is not surprising given 
     the process by which these provisions were altered behind 
     closed doors and rushed through the Senate without debate or 
     amendments. Ironically, the lack of transparency in the 
     process of considering a bill that is supposed to be about 
     legislative transparency has left no legislative history to 
     assist in interpreting this new language. Therefore, I ask 
     that you provide me with written answers to several questions 
     about the intent of the provisions as rewritten in the final 
     version of the Legislative Transparency and Accountability 
     Act.
       New language was added to the original Senate-passed 
     provision stipulating that senators would only be required to 
     disclose their holds, ``following the objection to a 
     unanimous consent (request?) to proceeding to, and, or 
     passage of, a measure or matter on their behalf . . . '' As 
     such, would the disclosure requirements be triggered for a 
     senator who had placed a hold with their leader only if their 
     leader or the leader's designee objects and specifically 
     states that the objection is on behalf of another senator? 
     For instance, if a member of the minority party has 
     previously contacted the minority leader to place a hold, 
     then the majority leader asks unanimous consent to proceed to 
     a matter and the minority leader objects without giving a 
     reason or specifying that the objection was on behalf of 
     someone else, would the minority senator who had placed the 
     hold be required to disclose or remove the hold within six 
     session days? Would the disclosure provisions be triggered if 
     a member of the majority party has previously placed a hold 
     with the majority leader, the minority leader asks unanimous 
     consent to proceed to a matter, and the majority leader 
     objects 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?
       Other changes were also made to the original Senate-passed 
     provisions that are more evident in their effect, but where 
     the rationale remains unclear and I would appreciate any 
     insights into the rationale for these changes. For instance, 
     many holds exist for some time without a unanimous consent 
     request and subsequent objection, and they have the effect of 
     dissuading the majority leader from attempting to move to a 
     matter, particularly in the case of hold by members of his 
     own party in which case a unanimous consent request to move 
     to a matter is unlikely ever to be made. Therefore, it isn't 
     clear why a provision was inserted making the disclosure 
     requirements effective only after a unanimous consent request 
     and objection, this allowing holds to remain secret until 
     that time.
       The original Senate-passed provision also required that any 
     hold be submitted in writing to the appropriate leader to 
     allow the leaders to distinguish between a formal hold and an 
     offhand comment, as well as to prevent staff holds. However, 
     as currently drafted, a senator is required to submit a hold 
     in writing to his respective party leader only after that 
     leader has already honored the hold by objecting to a 
     unanimous consent request on that senator's behalf, making 
     the requirement irrelevant and even absurd.
       Also, while the original Senate-passed provisions included 
     a short time window to give senators a chance to fill out and 
     submit their disclosure forms for the Congressional Record, 
     the intention was never to sanction secrecy for even a short 
     period of time. However, the new language allows six session 
     days before disclosure is required and includes a new 
     provision clarifying that senators never have to disclose 
     holds so long as they are withdrawn within the six day 
     period. I fail to see the justification for sanctioning 
     secret holds for up to six days, which at the end of a 
     session is more than enough time to effectively kill a bill 
     or nominee in complete secrecy.
       As I have said repeatedly, the public's business ought to 
     be done in public. Although I believe the altered disclosure 
     requirements for holds are flawed and do not fully eliminate 
     secret holds as I had intended, I hope they will result in 
     some increased transparency. Still, it is not completely 
     clear what is now expected of senators and how these 
     provisions will be interpreted. Therefore, I would appreciate 
     any insights you can provide into the intent of the new, 
     altered language related to disclosure of holds that was 
     inserted into the Legislative Transparency and Accountability 
     Act.
           Sincerely,
                                              Charles E. Grassley,
     U.S. Senator.
                                  ____

         U.S. Senate, Committee on Rules and Administration,
                               Washington, DC, September 12, 2007.
     Hon. Chuck Grassley,
     U.S. Senate,
     Washington, DC.
       Dear Chuck: I appreciate your concern about the provision 
     on Senate holds in S.1, the Honest Leadership and Open 
     Government Act, and I remain deeply committed to ensuring 
     adequate disclosure of Senators who seek to place holds on 
     bills, nominations and other Senate proceedings.
       In terms of building a legislative history, I refer you to 
     the Section by Section Analysis and Legislative History, 
     which I submitted to the Congressional Record along with 
     Chairman Lieberman and Majority Leader Reid, Volume 153, Nos. 
     125-126, August 2, 2007.
       ``Section 512 relates to the concept of so-called `secret 
     holds.' Section 512 provides that the Majority Leader or 
     Minority Leader or their designees shall recognize another 
     Senator's notice of intent to object to proceeding to a 
     measure or matter subsequent to the six-day period described 
     below only if that other Senator complies with the provisions 
     of this section. Under the procedure described in section 
     512, after an objection has been made to a unanimous consent 
     request to proceeding to or passage of a measure on behalf of 
     a Senator, that Senator must submit the notice of intent to 
     object in writing to his or her respective leader, and within 
     6 session days after that submit a notice of intent to 
     object, to be published in the Congressional Record and on a 
     special calendar entitled `Notice of Intent to Object to 
     Proceeding.' The Senator may specify the reasons for the 
     objection if the Senator wishes.
       ``If the Senator notifies the Majority Leader or Minority 
     Leader (as the case may be) that he or she has withdrawn the 
     notice of intent to object prior to the passage of 6 session 
     days, then no notification need be submitted. A notice once 
     filed may be removed after the objecting Senator submits to 
     the Congressional Record a statement that he or she no longer 
     objects to proceeding.''
       It is important to note that the revisions in the final 
     bill were based largely on concerns raised by the Senate 
     Parliamentarian and the offices of the Majority and Minority 
     Leader that the original language was not workable, 
     especially since procedures on Senate holds are not written 
     in the Standing Rules of the Senate and are not enforceable 
     by the Parliamentarian.
       The final language was developed in consultation with 
     Senator Wyden,the lead sponsor of the provision, and we were 
     not aware of any further objections.
       If you have an alternative recommendation, which the 
     Parliamentarian believes is workable and enforceable, I would 
     be interested in reviewing it.
           With warm personal regards,
                                                 Dianne Feinstein,
                                                         Chairman.

  Mr. GRASSLEY. Mr. President, I yield the floor.

                          ____________________