Disclosure: I'm going to be doing paid work as a Fellow for ProgressiveCongress.org in addressing the necessity of cloture reform in the Senate. The Fund is being supported in part by CREDO Action and Blue America. You can help support this work by signing CREDO Action's petition and/or donating at Blue America's ActBlue page.
Ending the practice of "secret holds" is the hot topic of the moment (not counting the volatility of the Dow). A press conference held yesterday by Sens. Durbin (D-IL), McCaskill (D-MO), Whitehouse (D-RI), and Warner (D-VA) addressed exactly that.
Dave Weigel, now of the Washington Post, covered the event:
Senate Democrats are making a concerted push to confirm stalled nominees by raising the question of whether Republican senators are breaking the rules by subjecting them to indefinite "secret" holds -- and planning to introduce an amendment to the financial reform bill that would curtail the process.
"Clearly this is more than just individual judgments about candidates," said Sen. Sheldon Whitehouse (D-R.I.) in a pen-and-pad briefing with reporters. "Clearly there is a systemic attack underway against this administration's ability to govern and to have its people in these significant and responsible positions. And that would be consistent with all of the secrecy of the hold. If you're engaged in a systemic attack on the administration's ability to govern, then you don't have to have a reason, you don't need a reason and you don't have to disclose. Secrecy becomes a wonderful thing."
According to Sen. Richard Durbin (D-Ill.), the party's whip, Section 114 of the Honest Leadership and Open Government Act of 2007 was clear on how senators could put holds on nominees. After six session days, they need to publish their names and reasons for the hold in the Congressional Record. Sen. Tom Coburn (R-Okla.) has done this; other Republicans have not. That's led to 96 nominees waiting for their votes for a variety of reasons. Democratic frustration has simply boiled over.
Here's the thing: with nominations, there's no reason in the world to tolerate secret holds, and they can end right now, with no changes at all to the rules. Well, sort of. The complicating factor, as usual, is time.
Now, are Republicans breaking the rules? Well, yeah, pretty much. Just like Durbin said. But as I've said before, there's no point in expecting a different outcome from rules that have no enforcement mechanisms.
Lo and behold, that very issue came up at yesterday's presser:
In addition to a letter promising never to file secret hold, the Democrats' mechanism for change will be an amendment to the financial reform legislation being drafted by Sen. Claire McCaskill (D-Mo.), which would clarify the language and do something -- it wasn't quite defined -- to enforce it. I haven't heard back from Republicans on this, and McCaskill admitted that the method of enforcement hadn't been figured out.
"The enforcement part is murky, and we're working on that," said McCaskill. "There's this whole issue of 'Is this a law, is it a rule, is it a standing rule?' " The question, she said, was exasperating given the language that exists. "Sometimes I feel like I've fallen down a rabbit hole around here. Somebody came up to me and said, well, what's your method of enforcement? And I said, who would have thought we'd need to make it a misdemeanor?"
Who would have thought it? Well, in another year, in another Senate, perhaps no one. But in one driven by ritualistic nihilism? Yeah, maybe. I certainly thought so. I wonder if I was the person who "came up to her" on that? Wouldn't that be nice?
Anyway, like I was saying, if the issue is nominations, we shouldn't be having any problems, at least with critical ones. Nominations (because they are nominated by the Chief Executive) are considered "executive business," and are therefore dealt with in "executive session." The motion to go into executive session is non-debatable, which means it's also not subject to filibuster, since a filibuster results from the inability to close debate. If debate never opens, there can't be any filibuster. And if there can't be any filibuster, then the motion can be adopted with a simple majority vote.
More to the point, a motion to go into executive session for the purposes of debating a particular nomination is not only non-debatable, but it gives the opposition no opportunity to filibuster a motion made in executive session to take up the nomination in question, because the compound motion has already taken care of that business. What that means is that if you've got a critical nomination being held up -- secretly or otherwise -- you can make a motion to go to executive session for the purpose of considering that nomination, get 51 votes, and you're there.
Are there still obstacles? Of course. The opposition can always try to filibuster the nomination itself, and they just may do that out of spite. But at least the roll call vote on cloture is open and non-secret. And it'll take 41 votes (or really, the absence of 60) to sustain any procedural barriers to getting a vote on the nomination.
So why not pull that trick out and give it a few test runs? I know Harry Reid (D-NV) has moved to the consideration of most if not all nominations that way, whenever a floor vote has been necessary. So it's definitely not any kind of a secret.
The last remaining complication, as I mentioned earlier, is time. And that's where the three Senators' complaints from their press conference make the most sense. Although you can move nominations this way one at a time, it's still costly in terms of floor time, since getting to a cloture vote on each of the nominations you move still takes a full day plus an hour, at minimum. With dozens of nominees blocked by secret holds, getting through their confirmations (assuming you can actually invoke cloture on them all) would more than consume all remaining time in the session. That's the rea indicator that there's a "systemic attack" underway. But again, the procedural glitch at the root of it all is the filibuster, not the "hold," per se.
As part of his Senate rules reform proposal, Sen. Michael Bennet (D-CO) proposes making the motion to proceed non-debatable while the Senate is in legislative session. And when I last wrote about it, I didn't know that his proposal for ending secret holds was in fact based on doing that. It's a smart proposal that would do for bills in legislative session what I described as being the case for nominations in executive session. That is, it knocks down one procedural hurdle (the ability to filibuster the motion to proceed to consideration of a bill) and leaves just the one hurdle -- the ability to filibuster the bill itself.
That doesn't by itself end the problems that the filibuster creates. More reforms are needed to deal with that. But if there's ever going to be any chance of dealing head-on with the filibuster, then we'll all have to keep our eyes fixed on it when it's the true root of other problems we encounter along the way. The filibuster causes an awful lot of people an awful lot of problems on an awful lot of important issues. They need to come together and recognize that they have a common problem. A little focus on that certainly couldn't hurt.