[Congressional Record (Bound Edition), Volume 156 (2010), Part 5]
[Senate]
[Pages 5915-5918]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              SECRET HOLDS

  Mr. GRASSLEY. Mr. President, I have not listened to every speech on 
the Senate floor in the last week or so where there has been a lot of 
talk about secret holds and everything. But since I have been in the 
Senate working with Senator Wyden in a bipartisan way over the course 
of maybe a decade, not to do away with holds but to have a transparency 
of holds, and seeing those things compromised, and then particularly to 
see exception taken to what has happened when this side of the aisle 
has put on holds, and then considering when Senator Wyden and I did try 
to do something, that was gutted by people on the other side of the 
aisle. So I would appreciate it if Democratic Members of the Senate 
would listen while I explore some of the history so that they know this 
bipartisan effort, that if it had been done the way Senator Wyden and I 
did it before it was gutted, we would not have a lot of problems today 
that we have.
  So I wanted to go into my remarks, but I preface it with what I just 
said. There has been a lot of talk recently on the Senate floor about 
secret holds. For a practice with so much bipartisan guilt to go 
around, it is interesting that the discussion has taken on a partisan 
tone. Republicans are being accused of being particularly egregious 
offenders when it comes to circumventing disclosure requirements.
  Let me say that if any of my colleagues have holds on either side of 
the aisle, they ought to have the guts to go public and to go public 
the minute they put the hold on, not like the mysterious way it is done 
now, which amounts to nothing. It has been my policy for years to place 
a brief statement in the Congressional Record each time I placed a 
hold, with a short explanation of why I placed the hold. I did that 
before there was ever any Wyden-Grassley proposal. The current 
disclosure requirements for secret holds have been discussed quite a 
bit lately, as has bipartisan work with Senator Wyden to address the 
issue. It is important I give a little background about how we got 
where we are today.
  After many attempts to work with various leaders over the years on 
policy to make all holds public, Senator Wyden and I decided the only 
way to settle this matter once and for all was for the full Senate to 
adopt a very clear policy. In the 109th Congress, Senator Wyden and I 
were successful in passing an amendment to the ethics reform bill by a 
very wide vote of 84 to 13 to require public disclosure of holds. That 
bill was never enacted, but the identical provision was included in the 
ethics bill passed by the full Senate at the very beginning of the 
110th Congress. Members may recall the Democrats had just secured a 
majority in both houses of Congress. Then, in a process that has become 
all too familiar under the past two Democratic Congresses, there was no 
conference committee. Instead, in a twist of irony, the so-called 
Honest Leadership and Open Government Act was rewritten behind closed 
doors by the Democratic leadership. Lo and behold, the public 
disclosure provision Senator Wyden and I had worked so hard on, which 
the Senate had overwhelmingly adopted on that 84 to 13 vote, had been 
altered, and altered significantly. Keep in mind, under Article I, 
section 5 of the Constitution:

       Each House may determine the Rules of its Proceedings . . .

  That means that the House of Representatives has no say whatsoever 
about the Senate rules. When the full Senate speaks on a matter of 
Senate procedure, that should be the final word, particularly if it is 
84 to 13. I want to be clear, the current weak disclosure requirements 
we now have are not the ones originally proposed by Senator Wyden and 
this Senator. In fact, at the time I came to the floor and criticized 
the specific changes, because I saw they would be ineffective. And 
ineffective they are.
  Let me reiterate some of those criticisms I initially aired to the 
Senate on two occasions: August 2, 2007, and September 19, 2007. In the 
version the Senate originally passed, we allowed 3 days for Senators to 
submit a simple public disclosure form for the record, just like adding 
oneself as a cosponsor to a bill. This was intended simply to give time 
to perform administrative functions of getting the disclosure form to 
the Senate floor, not to legitimize secrecy for the period of 3 days. 
The rewritten provision gives Senators 6 session days. That might not 
sound so bad but wait to see how that actually works out in practice. 
First, it doesn't take a week to send an intern down to the Senate 
floor with a simple form saying one is putting a hold on a bill. The 
change I find most troubling is that the 6 days until the disclosure 
requirement is triggered begins only after a unanimous consent request 
is made and objected to on the Senate floor. That is too late. I will 
explain how that is ineffective. By that point, a hold could have 
existed for quite some time, perhaps without the sponsor of the bill 
even realizing it. In fact, most holds never get to the point where an 
objection is made on the floor, because the threat of a hold prevents a 
unanimous consent request from being made in the first place. So maybe 
this 6 days is never even triggered.
  The original Wyden-Grassley provision required disclosure at the time 
the hold was placed. That is where it ought to be today. We have heard 
lately about how the minority party has used the weak disclosure 
requirements to avoid making holds public. However, this change made it 
far less likely that majority party holds would ever, in fact, become 
public. Since the majority leader controls the Senate schedule, he 
would hardly object to his own request to bring up a bill or nominee. 
He would simply not bring up a bill or nominee being held up by a 
member of his own party, and we might never know that there was a hold 
on it at all.
  Why were these provisions changed? Simply, I don't know. I don't know 
who does know, because I can't be sure who it was who rewrote these 
provisions in secrecy behind closed doors. The majority party should be 
careful now, as they complain about Republicans exploiting loopholes in 
the disclosure requirements for holds. Both parties are guilty of using 
secret holds. But we can't blame Republicans for the fact that the 
current disclosure requirements are weak and ineffective. Again, there 
is plenty of blame to go around when it comes to using secret holds, 
but I am hopeful this recent attention to the problem can result in a 
bipartisan consensus to end secret holds once and for all. That is 
something we hope, Senator Wyden and I, other people will talk to us 
about. We would like to move in this direction. I, for one, am

[[Page 5916]]

happy to work with anyone on either side of the aisle to that end.
  It should be stressed that this has been a bipartisan effort. 
Everybody in this body talks about bipartisanship. When this was 
watered down, it wasn't watered down in an environment that I know 
about where any Republicans were present.
  Mr. WYDEN. Will the Senator yield for a question?
  Mr. GRASSLEY. Yes.
  Mr. WYDEN. First, let me tell the Senator from Iowa how much I have 
enjoyed working with him on this. We have had, as incredible as it 
sounds, a 10-year campaign to try to end secrecy in the Senate, just so 
people know a little bit about it. I always think when people hear 
about a hold in the Senate, they probably think it is a hair spray or a 
wrestling move or something like that. Isn't it correct that a hold, 
the ability to block a nomination or a piece of legislation, is one of 
the most powerful tools a Member of the Senate has today to influence 
policy?
  Mr. GRASSLEY. Mr. President, Senator Wyden is absolutely right. It is 
a very powerful tool.
  Mr. WYDEN. And with respect to transparency, what he and I have 
focused on all these years, people asked: Are you trying to abolish a 
hold? I think he and I have said we believe Senators ought to have a 
right to weigh in on something important. But at a time when the public 
wants transparency and openness and accountability, a Senator who wants 
to use what the Senator has said is an extraordinary power, the real 
public interest is satisfied by that Senator having to disclose 
promptly that they are imposing a hold; is that correct?
  Mr. GRASSLEY. Mr. President, Senator Wyden is correct. I would add 
this point, that not only is it transparency that is essential--and it 
happens that way--but also a lot of times holds are put on because 
there is something wrong. We have to know what it is somebody believes 
is wrong, if we are going to work out some sort of a compromise.
  Mr. WYDEN. One additional point, is it the Senator's sense, because 
we have talked about this often as we have been watching the spectacle 
of all these secret holds, that the central problem is it is triggered 
too late and it takes too long to kick in? Is that a fair statement of 
what needs to be changed? We need to get the openness earlier? It needs 
to be triggered earlier, and it needs to get into the public domain 
earlier; is that correct?
  Mr. GRASSLEY. Mr. President, the Senator is correct. The present 
rules are practically not much better than what we have always operated 
under. So there isn't transparency, and it isn't done soon enough.
  Mr. WYDEN. I express my appreciation to the Senator from Iowa for 
giving me the opportunity to work with him. He and I have pursued a lot 
of issues in the past. Very often those issues are part of television 
news debates and the like. Obviously, the secret hold would not be 
something on Main Street in Des Moines or Portland that people know 
about. This is the time to get this right once and for all. We sought 
to do it literally for a decade. A number of majority leaders, 
Democratic and Republican, said they wanted to get this done. Yet as of 
this day, I personally believe it continues to be abused and flagrantly 
so. At a time when the American people are looking at these challenging 
economic circumstances, they deserve a government that is truly open, 
truly accountable, and truly transparent. That has been what has guided 
our bipartisan efforts over this last decade. I appreciate the Senator 
coming to the floor this evening. There are not that many opportunities 
to advance a truly bipartisan agenda. He has given us the opportunity 
to do that tonight.
  I look forward to working with my colleague to once and for all get 
secret holds abolished in the Senate.
  Mr. GRASSLEY. I yield the floor.
  The PRESIDING OFFICER (Mr. Begich). The Senator from Oregon.
  Mr. WYDEN. I ask unanimous consent to speak for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. Mr. President, to continue this topic, we need to kind of 
put into perspective a little bit about why this secret hold has become 
such a detrimental practice. When Willy Sutton was asked why he robbed 
the bank, he said: That's where the money is. Secret holds are where 
the power is. Senator Grassley and I have outlined the enormous effect 
a secret hold can have on a piece of legislation but, frankly, one of 
the other points that needs to be made is that a secret hold is a very 
powerful weapon that is available to a lobbyist.
  I expect that practically every Senator has gotten a request from a 
lobbyist asking if the Senator would put a secret hold on a bill or 
nomination in order to kill it without getting any public debate and 
without the lobbyist's fingerprints appearing anywhere. If you can get 
a U.S. Senator to put an anonymous hold on a bill, it is like hitting 
the lobbyist jackpot. Not only is the Senator protected by a cloak of 
anonymity but so is the lobbyist.
  A secret hold lets lobbyists play both sides of the street and can 
give lobbyists a victory for their clients without alienating potential 
or future clients. Given the number of instances where I have heard a 
lobbyist asking for secret holds, I am of the view that secret holds 
are a stealth extension of the lobbying world.
  In the U.S. Senate, there has been an effort to improve the rules and 
have stricter ethics requirements with respect to lobbyists. It seems 
to me it would be the height of irony if the Senate were to adopt a 
variety of changes to curtail lobbying, as we have done in the past, 
without doing away with what, in my view, is one of the most powerful 
tools that can be available to lobbyists.
  The overwhelming majority of our citizens, in every corner of the 
land, be it Alaska or Oregon or Rhode Island, say they want public 
business done in public. If you walk down the streets of this country, 
I do not think you could find 1 out of 100 people who would have any 
idea what a hold is or what a secret hold is all about. But the fact 
is, these secret holds in the U.S. Senate can dramatically affect and 
change the lives of our citizens, and our people will not even know 
about it.
  The hold--the ability to block a piece of legislation, block a 
nomination--cannot even, in a number of instances, end up being 
discussed on the floor of the Senate. Literally, the Senate will not 
even get a peek, will not even get the briefest look, at a particular 
issue that may involve millions of our citizens, billions of dollars, 
and affect the quality of life of citizens in every corner of the land.
  So what this is all about, what Senator Grassley and I have been 
working for lo, this past decade, what I have heard colleagues talk 
about--and Senator Whitehouse has spoken eloquently about this--is we 
believe now is the time, once and for all, to permanently wipe the 
secret hold off the rulebooks of the Senate.
  It is one thing if a Senator exercises the extraordinary power that a 
hold presents. It is quite another when they cannot be held accountable 
because they exercise this power in secret. So the average person in 
America may not know what a secret hold is, but I am very certain they 
want the Senate to do its business in public.
  I want to express my appreciation to Senator Grassley, who has left 
the floor, for working with me over this past decade to end what I 
think is a simply inexplicable denial of the public's right to know. 
That is what this is essentially about. This is a denial of the 
public's right to know. With colleagues on both sides of the aisle, I 
am determined to, this time, get this changed, shorten the period, to 
make it easier to trigger the requirements of public disclosure.
  Mr. President, I know my colleague from Rhode Island is interested in 
getting in this issue. I look forward to his comments and yield the 
floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to engage for 
5 or 10 minutes in a colloquy with the distinguished Senator from 
Oregon.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page 5917]]


  Mr. WHITEHOUSE. Mr. President, I, first of all, want to salute 
Senator Wyden of Oregon for his long work on this issue. He has been 
working on this issue since before I came to the Senate, before I had 
any experience of secret holds, and saw--as we are seeing right now--
their pernicious effect.
  At present, we are looking at probably a little less than 80 secret 
holds by Republicans of President Obama's nominees--some judges. In the 
past few days, Senator McCaskill and I have come to the floor to push 
some of these nominees forward, to ask unanimous consent they go 
forward.
  In one case, a nominee was a judge who was supported by both a 
Democrat and a Republican--the Senators from his home State--who had 
passed out of the Judiciary Committee by a unanimous rollcall vote of 
19 to 0. They have been held for months and months. The distinguished 
Senator from Arizona, Mr. Kyl, was put in the unfortunate position, 
since he had voted for this nominee in committee, to have to come to 
the floor and raise an objection to the unanimous consent request for a 
judge who he voted for in committee and one of his Republican 
colleagues supported--the home State Senator supported--to have to 
object to that nomination going forward because somebody had a secret 
hold.
  We went through a great deal of these. I want to salute Senator 
McCaskill. She carried the greater part of the burden. I only tried to 
move a few. I think she tried to move over 70 by the time the day was 
done. I really want to extend my appreciation to her for that.
  I say to Senator Wyden, as I understand it, the rule is that now that 
these unanimous consent requests have been made, there is a 6-day-of-
session period that has now begun to run, and at the end of that 6 
days, our Republican colleagues will be obliged to disclose publicly 
their holds, who is holding it, and what their reason is.
  I understand there is a potential loophole, which is they could pull 
sort of the old switcharoo, and in the 6-day period the Senator or 
Senators with the hold could all release their hold so that at the end 
of the 6-day period they have no hold to disclose, but they could 
connive with another colleague to put in a new hold, since the 
unanimous consent request, so they can start the process all over and 
hide their accountability.
  But it strikes me those are really the only two choices our 
Republican colleagues have: They either have to divulge or they have to 
engage in a game of switcharoo, connivance with another Republican 
colleague to try to duck out from under the rule which was passed I 
think by 92 votes. It has very strong bipartisan support.
  I say to Senator Wyden, I just wanted to clear that understanding 
with the Senator since he is an expert on this issue, that the clock is 
running, that they have 6 days to come clean about this; and that the 
only two ways out are either to divulge or connive with another Senator 
to engage in a little switcharoo.
  Mr. WYDEN. Or I think there might be a third option, of course, which 
is to lift the hold. But the Senator has done a very careful and 
thoughtful analysis of the situation and particularly this situation of 
what Senator Grassley and I came to call the ``rotating hold,'' simply 
shifting to another person--something that has been done often over the 
years by Democrats and Republicans. I think now is the time to get this 
changed. By the way, the Senator is absolutely correct on the 
bipartisan nature of the rule change. The vote was 84 to 13. There was 
overwhelming bipartisan support for it.
  The Library of Congress has actually put together a very thoughtful 
historical analysis featuring the discussion of things such as the 
``Mae West'' hold, which came to be known as the ``come look me over'' 
hold, which I gather was not a full-fledged hold but it might actually 
blossom into one.
  So the Senator is absolutely right about what the choices are. That 
is why it is time, once and for all, to get this changed. I so 
appreciate the Senator, and also Senator McCaskill from Missouri, 
coming and highlighting the fact that this has again gotten out of 
hand.
  The historical analysis of this has been that the hold was something 
that would be used rarely. The hold was for something of great 
consequence. Yet now it seems we have these secret holds that are 
simply thrown out for nominations and pieces of legislation because 
someone has some modest interest or is carrying out a different agenda, 
and I think that is why the secrecy is so unfortunate.
  I thank my colleague.
  Mr. WHITEHOUSE. So to have 80 secret holds by one party, all at once 
pending in the Senate, is not consistent with the history of the use of 
this procedural tactic in this body. Is my understanding correct?
  Mr. WYDEN. The Senator is absolutely right about the fact that 80 
secret holds is clearly not what Senator Grassley and I and reformers 
thought would happen. Given all these secret holds, you would think at 
the back of the Executive Calendar--which is page 19; it is entitled 
``Notice of Intent to Object to Proceeding''--given what the 
distinguished Senator from Rhode Island has pointed out, one would 
think that page 19, ``Notice of Intent to Object to Proceeding,'' would 
be filled with these names if the rule was being honored.
  I say to the Senator, both you and I are holding up this page 19 with 
nary a word on it.
  Mr. WHITEHOUSE. We are looking at an empty page.
  So just to summarize, the clock has run as a result of this series of 
unanimous consent requests Senator McCaskill and I have put forward. 
The 6 days have begun. By the end of that, one of three things--as the 
Senator has corrected me--will have happened. Either the hold will have 
been lifted, and then we can move to unanimous consent and clear these 
individuals who the President has nominated and get them to work for 
the American people or, two, the Senator who has the secret hold will 
have to acknowledge publicly and become transparent and clear and 
candid with the rest of the body about who they are holding and why, 
or, three, they can engage in this rather obscure, shall we say, game 
of rotating holds, what I called the switcharoo, ducking out before the 
time runs and getting somebody else to actually have your hold for you 
but get in a proxy.
  Given this was a rule that was adopted with a very strong vote, a 
very strong bipartisan vote, and that it is now a rule of the Senate, 
what comment would the Senator have on that third tactic in terms of 
its merit and appropriateness, if we find it is being used at the end 
of the 6 days? Would that spur the need for reform of this rule?
  Mr. WYDEN. It surely would. I am grateful to the Senator from Rhode 
Island for prosecuting the reform case. I have talked with Senator 
Grassley about it, and with Senator McCaskill and the Senator, and I 
think this is the time.
  There are two points with respect to the secret hold: one as it 
relates to the institution and one as it relates to an individual 
Senator. With respect to the institution, in this example, the Senator 
has given us scores of these secret holds. I think this serves to 
undermine the credibility of the institution at a crucial time in 
American history. It is no secret Americans are divided on a host of 
issues.
  Well, if the Senate insists on doing so much important business in 
secret--which is what happens if you honor these secret holds--I think 
that just undermines the institution. Because I think, first and 
foremost, you are absolutely right to zero in right now where we have 
all these secret holds.
  Secondly, with respect to an individual Senator, what seems 
particularly important--the Senator and I share an interest in health 
care and a variety of economic issues--suppose an individual Senator 
works for years and years to try to build a bipartisan coalition on an 
issue and then is done in by an unknown or secret opponent, an unknown, 
unseen opponent who has been able, in effect, to block all that 
bipartisan work in secret.
  So I want the Senator to know I am four-square behind his efforts to 
get this changed. Senator Grassley and I have been talking about it. I 
think

[[Page 5918]]

there is an opportunity to make this bipartisan.
  I will also say, in closing--and the Senator has been kind to give me 
all this time--I do not think the secret hold passes the smell test of 
openness in American government. It is time to change it. I look 
forward to working with my colleague to finally, after all of these 
years, get this done and send the secret hold off into the dust bin of 
history.
  Mr. WHITEHOUSE. The legacy of the Senator from Oregon on this, with 
10 years of work, is very impressive to this newer Senator. I 
appreciate so much what he and Senator Grassley have done over the 
years to begin to put an end to this practice.
  I think the straw that broke the camel's back--or maybe the 80 straws 
that broke the camel's back--was the absolute avalanche of secret holds 
that has confronted our new President from this Republican minority. It 
has come to the point where the President, I think fairly, believes his 
ability to staff his own administration is being compromised by people 
who will not stand and be counted and be accountable for the reason for 
their opposition. It is being done in the dark, secretly, and without 
any accountability. I agree that needs to be put to an end.
  So I urge people who are watching this: The sixth day has begun--6 
days of session. At the end, we will know who is doing this or we will 
be able to clear these nominees, and we will have broken this 
unfortunate practice, to a significant degree or we will have learned 
something I think very unfortunate about our friends on the other side; 
that is, that they have agreed to connive with one another to play a 
switcharoo and bring in a new Senator to dodge the clear import of the 
rule that the Senator from Oregon and Senator Grassley worked on, on a 
bipartisan basis, to put into effect in this body and which was 
approved by an enormous majority of this body. So the clock is running 
and we will see. We will learn a lot about this institution and our 
colleagues in 6 days. I thank the Senator for his leadership on this 
issue.
  I yield the floor, and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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