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Back in May, when a couple Senators decided it was time to take on the so-called "secret hold" again, I told you it was really the problem of abuse of the filibuster they were dancing around. More than that, I told Senator McCaskill that absent a willingness to deal with the real problem, the proposal at least had to have an enforcement mechanism, and this one did not.

I think she heard someone about it, anyway, even if it wasn't me:

"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?"

Why did I think they needed an enforcement mechanism? Because secret holds were already supposedly banned in 2007, under the Honest Leadership and Open Government Act of 2007, which became law in September of that year. Here's the relevant part:

SEC. 512. NOTICE OF OBJECTING TO PROCEEDING.

     (a) In General- The Majority and Minority Leaders of the Senate or their designees shall recognize a notice of intent of a Senator who is a member of their caucus to object to proceeding to a measure or matter only if the Senator--

           (1) following the objection to a unanimous consent to proceeding to, and, or passage of, a measure or matter on their behalf, submits the notice of intent in writing to the appropriate leader or their designee; and

           (2) not later than 6 session days after the submission under paragraph (1), submits for inclusion in the Congressional Record and in the applicable calendar section described in subsection (b) the following notice:

     `I, Senator XXXX, intend to object to proceedings to XXXX, dated XXXX for the following reasonsXXXX.'.

     (b) Calendar-

           (1) IN GENERAL- The Secretary of the Senate shall establish for both the Senate Calendar of Business and the Senate Executive Calendar a separate section entitled `Notice of Intent to Object to Proceeding'.

           (2) CONTENT- The section required by paragraph (1) shall include--

                 (A) the name of each Senator filing a notice under subsection (a)(2);

                 (B) the measure or matter covered by the calendar that the Senator objects to; and

                 (C) the date the objection was filed.

           (3) NOTICE- A Senator who has notified their respective leader and who has withdrawn their objection within the 6 session day period is not required to submit a notification under subsection (a)(2).

     (c) Removal- A Senator may have an item with respect to the Senator removed from a calendar to which it was added under subsection (b) by submitting for inclusion in the Congressional Record the following notice:

     `I, Senator XXXX, do not object to proceed to XXXX, dated XXXX.'.

All well and good. But it never worked, and the Senators knew it. There was nothing in there about what to do if the objecting Senator simply didn't comply within six days. Which is why nobody ever bothered to comply. There was no penalty for not doing so.

So what's the answer? Well, the proposal back in the spring was S. Res. 502:

SECTION 1. ELIMINATING SECRET SENATE HOLDS.

     Rule VII of the Standing Rules of the Senate is amended by adding at the end the following:

     `7. (a) The majority and minority leaders of the Senate or their designees shall recognize a notice of intent of a Senator who is a member of their caucus to object to proceeding to a measure or matter only if the Senator--

           `(1) submits the notice of intent in writing to the appropriate leader or their designee and grants in the notice permission for the leader or designee to object in the Senator's name; and

           `(2) not later than 2 session days after the submission under clause (1), submits for inclusion in the Congressional Record and in the applicable calendar section described in subparagraph (b) the following notice:

     `I, Senator XXX, intend to object to proceeding to XXX, dated XXX.'.

     `(b) The Secretary of the Senate shall maintain for both the Senate Calendar of Business and the Senate Executive Calendar a separate section entitled `Notices of Intent to Object to Proceeding'. Each section shall include the name of each Senator filing a notice under subparagraph (a)(2), the measure or matter covered by the calendar that the Senator objects to, and the date the objection was filed.

     `(c) A Senator may have an item relating to that Senator removed from a calendar to which it was added under subparagraph (b) by submitting for inclusion in the Congressional Record the following notice:

     `I, Senator XXX, do not object to proceeding to XXXX, dated XXXX.'.'.

See what changed? They cut six days down to two. Hmm. Not sure why anyone thought that would work.

So I used the magic Twitter box to talk to McCaskill. And the magic blogging box to talk to everyone else:

Once again, I contend that there's simply no way to force a Senator to put his or her name to a hold. So long as the Senate attempts to bring a bill or nomination to the floor by unanimous consent, all anyone needs to do is object and claim that they object on someone else's behalf to prevent the bill from moving. And absolutely nothing about that process, nor any change that can be made to it, can force the objecting Senator to give up that name.

But there is a way to put a name there, nonetheless. And it exists right now, and requires exactly zero changes to the rules. And it's simple as all hell: the Senator who objects owns that hold.

The convenient fiction of the "secret hold" is that one's fellow Senators agree not to hold an objecting Senator's obstruction against him personally, so long as he contends that he's objecting on someone else's behalf. But why would anyone allow this fiction to continue? An objection is an objection, and it extinguishes an unanimous consent request just as surely as if the Senator allegedly objecting in secret had done it himself. So why permit obstructionists to hide behind a colleague's cloak?

What I suggest instead is, when a Senator objects to an unanimous consent request, you say so. When someone asks -- whether it be another Senator or a member of the press -- who's holding that bill, tell the damn truth. Tell them who actually objected.

And by late July, the secret hold bill (a bill and not a resolution, because it sought to establish a standing order of the Senate rather than change the rules) carried this addition:

(d) Objecting on Behalf of a Member- If a Senator who has notified his or her leader of an intent to object to a covered request fails to submit a notice of intent to object under subsection (a)(2)(B) within 1 session day following an objection to a covered request by the leader or his or her designee on that Senator's behalf, the Legislative Clerk shall list the Senator who made the objection to the covered request in the applicable `Notice of Intent to Object to Proceeding' calendar section.

Oh, plus they cut it down to one day. Something about lowering the number of days really interests them.

So, OK. That takes care of the "secret" part of the "secret hold." Just not the "hold" part, which is still a bit of a problem.

Why?

Because holds are essentially just placeholders for a threat to filibuster. Instead of actually filibustering a motion to proceed to start debate on some measure and wasting everybody's time, you politely inform your colleagues that if they were to try to bring that measure up by unanimous consent, you'd object, and if they were to try to get a vote on it, you'd filibuster. Then, everybody decides whether it's important enough to them to waste a few days going through the cloture process. If yes, that's exactly what they do. In no, then the measure is "held," or politely put aside for some later date.

That's all the hold is. So as long as Senators have the power to threaten to waste everyone's time for several days at a stretch -- that is, the power to filibuster -- then the hold remains a viable tool, whether it's secret or not.

So we'll sort of be back to square one, in that the Wyden/Grassley/McCaskill proposal will make it impossible to have a hold without a name attached, but there won't be any real guarantee that the name is the one who actually asked for the hold, as opposed to the name of a Senator who agreed to take the heat for it. And, of course, at the end of the day, you'll still have a hold on the measure, blocking the Senate from acting.

And the answer to that? Making the motion to proceed non-debatable. Because if it's not debatable at all, it's surely not subject to extended debate, which is the actual definition of a filibuster (even though today's filibusters feature virtually no debate at all). Make the motion non-debatable, and no one can hold the right to begin debate hostage.

And really, what sense does it make to have a process whereby The World's Greatest Deliberative Body can't even begin to deliberate?

None.

So there's your answer to "secret holds." It was a nice editorial and all, but you could tell that was where they were itching to go, couldn't you?

The proposal will not end obstruction as an art form in the Senate: no one is seriously challenging the hoary tradition of abusive filibusters. It would finally add a measure of transparency and accountability.

I mean, come on. So, fine. We'll leave it to the blogs to finish this one up with clarity and explication.

Originally posted to Daily Kos on Mon Aug 23, 2010 at 06:16 AM PDT.

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Comment Preferences

  •  I've got a good idea for punishment. (4+ / 0-)

    If the hold is not made public after the 2 days or whatever, it's dropped, and not considered a hold any more.

    Note to self: Quit insulting people. Note to others: If I insult you, please remind me that I'm trying to stop doing that.

    by Ezekial 23 20 on Mon Aug 23, 2010 at 06:19:21 AM PDT

    •  Oh, and, anyone CLAIMING (5+ / 0-)

      they've got a secret hold on for someone else should be barred from all votes until such time as the hold is revealed...

      Note to self: Quit insulting people. Note to others: If I insult you, please remind me that I'm trying to stop doing that.

      by Ezekial 23 20 on Mon Aug 23, 2010 at 06:20:21 AM PDT

      [ Parent ]

    •  Here's the problem. (3+ / 0-)
      Recommended by:
      Major Tom, ParkRanger, gloriasb

      You can "drop" whatever you like, but since there's really no such thing as a hold at all, dropping it doesn't do much.

      A hold is a notice that you're going to object to a unanimous consent request. You can pretend you're dropping someone else's hold, but that doesn't get you anywhere. There's still no unanimous consent, and if you ask for it again and it gets objected to, you're right back where you started, whether you "drop" the hold or not.

      There's no way to redefine unanimous consent. It's either unanimous or it's not.

      •  Well, that's actually exactly what I was saying. (0+ / 0-)

        You assume you have a unanimous consent after whatever period if they don't obey the rules.  If they object, it's no longer considered a 'secret', but is considered to be 'owned' by whoever is objecting.  No more objecting for someone else at that point.

        Note to self: Quit insulting people. Note to others: If I insult you, please remind me that I'm trying to stop doing that.

        by Ezekial 23 20 on Mon Aug 23, 2010 at 06:41:47 AM PDT

        [ Parent ]

        •  You can't assume unanimous consent. (1+ / 0-)
          Recommended by:
          ParkRanger

          It's either granted or it's not.

          But yes, it's absolutely true that they could stop playing games about who "owns" a hold any time they want to, simply by saying whomever objects owns it.

          That's a little trick we might call, "observing reality."

  •  The solution... (5+ / 0-)
    Recommended by:
    polecat, Major Tom, BMarshall, ardyess, We Won

    as you suggest, is to abolish the filibuster.  It's that simple.  Adopt the constitutional option.  The Constitution requires only a simple majority for final passage.

    Why should a bill require 60 votes in the Senate to get to the point where it only needs a simple majority to pass?  All that does is raise the requirement from the constitutional simple majority to a supermajority not specified anywhere in the Constitution.  There are only two instances where a supermajority is required: ratification of treaties and removal from office.

    If the filibuster was gone, then these senators would actually have to explain why they're opposed to a nominee, and do so in public, on the floor of the Senate.

    I belong to no organized party, I'm a Democrat - Will Rogers

    by Mets102 on Mon Aug 23, 2010 at 06:23:57 AM PDT

    •  Drivel will still come out of their mouths, (2+ / 0-)
      Recommended by:
      Major Tom, Mets102

      but at least it would be possible to get legislation through.

      Happy little moron, Lucky little man.
      I wish I was a moron, MY GOD, Perhaps I am!
      -Spike Milligan

      by polecat on Mon Aug 23, 2010 at 06:30:49 AM PDT

      [ Parent ]

    •  40 votes v. 60 votes (0+ / 0-)

      A simple change- require 40 votes for a filibuster rather than 60 votes to break a filibuster. A filibuster would have to be an active rather than passive process. All of their members would have to be present- it would take considerably more effort.

      This is less than ideal- majority is the way it should be. But some Democrats are not willing to make it a majority vote.

      Even better than 40 votes- require 45 votes to filibuster.  

      At a minimum it needs to be difficult to filibuster rather than being difficult to break a filibuster.  

  •  Then you just need two senators who are willing (0+ / 0-)

    to do "Ping-pong" holds and don't care whether their names are public or not.

    Say somebody in a state that is not contested at all...

    Unless you can prevent this kind of mechanism ab initio, any amount of refinement is still going to come up short.

    If you REALLY want to have a limit, provide a limit of N holds TOTAL for the entire senate per month.  And then the leadership and put through N*N*N bills and water down the "HOLDS."

    Happy little moron, Lucky little man.
    I wish I was a moron, MY GOD, Perhaps I am!
    -Spike Milligan

    by polecat on Mon Aug 23, 2010 at 06:29:25 AM PDT

    •  Right. (3+ / 0-)
      Recommended by:
      polecat, Major Tom, ParkRanger

      And that's what you'll get, until you get around to admitting that it's ridiculous to allow unlimited debate on whether or not to begin debate.

      But you can't even really put a limit on the number of "holds" a Senator can invoke, because holds don't have any independent existence. And you can't really write a workable rule that says that after some certain point, a sitting Senator doesn't count when you're asking for unanimous consent.

      The kind of "consent" you'd get when certain Senators are just ignored when they object couldn't very well be "unanimous."

      •  Personally, I like N=0. No holds. (0+ / 0-)

        But I saw a proposal upstream that if someone is doing a hold, then they don't get to vote.

        It suggests there would be a "designated hitter rule."  Pile up all of the holds on one person.

        Happy little moron, Lucky little man.
        I wish I was a moron, MY GOD, Perhaps I am!
        -Spike Milligan

        by polecat on Mon Aug 23, 2010 at 06:51:23 AM PDT

        [ Parent ]

  •  and this is now what our political system (2+ / 0-)
    Recommended by:
    Major Tom, Palafox

    has degenerated into....

    And really, what sense does it make to have a process whereby The World's Greatest Deliberative Body can't even begin to deliberate?

  •  It's all Insane (4+ / 0-)

    The holds and the filibusters are terribly bad, undemocratic legislative devices effectively utilized by as little 11% of the total population in America to control America's majority and its destiny. Make no mistake about that.

  •  I'm sick and tired of "lawmakers" who can 't (1+ / 0-)
    Recommended by:
    Major Tom

    play by their own rules. The penalties should be:

    First offense: Public censure.
    Second offense: Expulsion.

    No more winkwinknodnod.

    As a citizen, I'm fed up!

  •  Oh, for a constitutional amendment (1+ / 0-)
    Recommended by:
    bear83

    The "conservatives" (i.e, radical regressives) are so gung-ho about screwing with the 10th, 14th, and 17th amendments.  How about a new amendment, to wit:

    Except where specified elsewhere herein, all votes in Congress shall require a simple majority for passage. All actions on a bill, whether of the House or Senate as a whole, or any portion thereof, will be decided with a simple majority.

    That should take care of filibusters, cloture, unanimous consent, and that recent situation in the House where a vote required a supermajority.

    I am become Man, the destroyer of worlds

    by tle on Mon Aug 23, 2010 at 06:42:04 AM PDT

    •  A Constitutional Amendment? (1+ / 0-)
      Recommended by:
      bear83

      Gosh, that process takes years and years. Come January 2, 2011, the Senate could just vote out Rule 22 and state that a simple majority now rules on all issues except for those matters that are specifically set forth otherwise in the U.S. Constitution. Furthermore, this could be done with a simple majority vote.

      •  More like decades (0+ / 0-)

        And, while I wasn't aware of the specific rules, I would take it further and say that they could change those rules today (or, at least, any day they're in session).  There's nothing in the Constitution that restricts rule-setting to a particular point in time.

        And yet the anti-democratic rules continue.  I have no expectation that there will be any amendment, but I can enjoy imagining the effect that would have on the senators.  Sometimes the best guidance is a two-by-four up side the head.

        I am become Man, the destroyer of worlds

        by tle on Mon Aug 23, 2010 at 09:42:30 AM PDT

        [ Parent ]

  •  What kind of progress (3+ / 0-)
    are you making with getting Senate rules changed at the start of the next session, David?
    I know you were working with Blue America and another group to help the process along, but I haven't seen your "dislcosure" statement in awhile and was worried you gave up in frustration (not that I'd blame you).

    How come the dove gets to be the peace symbol? How about the pillow? It has more feathers than the dove and doesn't have that dangerous beak. Jack Handey

    by skohayes on Mon Aug 23, 2010 at 06:44:46 AM PDT

  •  Instantaneous Cloture (2+ / 0-)
    Recommended by:
    Major Tom, ParkRanger

    If nothing else changes, even if a ridiculous supermajority requirement is left intact, instantaneous cloture would clean up the Senate immensely.

    If 60 Senators want to vote on something, you vote on it.  Now.  Not 25 hours + 30 hours later to bring it to the floor and 25 hours + 30 hours after that to actually vote on it.

    I think I'd even be fine with a tiered system.  51 votes = 30 more hours of debate, then vote.  60 votes = 4 hours of debate then vote.  70 votes = vote right now.  Something like that - you get the idea.

    Right now 1 Senator can hold up something that will pass 99-1, just because the Senate can't afford to spend a week on every damned issue.  Eliminate that power and watch the uncontroversial nominees sail through the Senate.  Watch Jim Bunning cry when he can't hold up UI extensions all by himself.  Watch the troglodytes like Inhofe and Coburn collapse into piles of irrelevant goo when they realize they can't personally hold the entire country hostage any longer.

    Clearly, I need to find a witty sig line.

    by libdevil on Mon Aug 23, 2010 at 06:47:55 AM PDT

  •  a novice question (2+ / 0-)
    Recommended by:
    BMarshall, ParkRanger

    a long time ago, didn't they just make the senator with objections get up there and give it their best shot then vote after he was done with the filibuster? like when the civil rights act was debated?

    it seems if they did that, in most cases, the ranting member who held up the works in such a public way droning on about his objections would just eventually shut up and the democratic vote in the senate would take place.

    i just imagine folks trying to stop financial reform or additional stimulus trying to talk through their objections....

    •  Sort of. (3+ / 0-)
      Recommended by:
      Major Tom, BMarshall, ParkRanger

      We're talking at the moment about the motion to proceed, which is essentially the decision on whether or not to begin working on some particular piece of legislation or nomination. You can filibuster that as well as the legislation or nomination itself.

      But yes, years ago it was the case that whatever was being filibustered remained the "pending business" on the floor to the exclusion of anything else, unless it was withdrawn from consideration. That meant no other business could go forward until the filibuster was resolved, and that in turn meant that conducting a filibuster meant holding the floor continuously.

      A few things have changed since then. First, the invention of the "two track" system, which allows for unfinished business to be set aside without withdrawing it from consideration, meaning that something being filibustered can be frozen in place, and the Senate can move on to something else instead. That was good for getting other business taken care of, but bad in the sense that you no longer really had to stay on your feet forever to block a vote. You just had to be able to credibly threaten to do so if they ever came back to the bill you were filibustering.

      The other development has been the move away from the filibuster as the individual act of a Senator with deep, personal opposition to a measure, and toward the use of the filibuster as a political tactic by an entire caucus. With the assistance of dozens of colleagues, it's now possible to conduct filibusters (especially these quasi-filibusters created by the two track system) on virtually everything, such that it's feasible to simply filibuster everything your political opponents propose, whether you disagree with it or not.

      Together, those developments have pretty much destroyed the whole thing. By which I mean the Senate.

      •  You're Right (0+ / 0-)

        The filibuster maneuver provides enormous power to the "Do Nothings." And that has great consequences. For example, the Democratic Party will never be able to create a "green economy" here in America, or pass a "substantive climate control bill." That is because the crude oil center of America is located in the Republican controlled South, while the Major shale oil producers are located in the Republican controlled Midwest and the Rocky Mountain States. Moreover, these three geographic areas control approximately 44 Senate votes, which is more than enough to sustain even the threat of a filibuster.  

        You know, when history finally records the reasons why the 2010 elections turned out they way they did, it won't just be: "It was the economy and lack of jobs, stupid."  It will also be: "It was the threat of filibusters, stupid."    

      •  Thanks for the details! (0+ / 0-)

        I need to read up on this mess a little more.

  •  Make them give a reason (0+ / 0-)

    for the objection. Right now it seems like you can object 'just because'.

    `I, Senator XXX, intend to object to proceeding to XXX, dated XXX.'.

    Make them go on record as to why they object. They must have some reason right? The reality is, as you say, that it is just a statement of intent to filibuster, but they must have a reason for that too.

    `I, Senator XXX, intend to object to proceeding to XXX, dated XXX., because (reason'.

    Four out five sock puppets agree

    by se portland on Mon Aug 23, 2010 at 06:49:14 AM PDT

  •  This diary deserves ore love (0+ / 0-)

    than it's getting.

    Money=speech; every dollar has a right to be heard. The Supremes

    by orson on Mon Aug 23, 2010 at 08:12:43 AM PDT

  •  If there were a requirement to put a name (0+ / 0-)

    to a hold, then it seems like the obvious strategy would be for the opposition party to designate some Senator from a safe seat to be the designated objector for all holds.

    That person takes all the 'heat', but it would quickly become no heat, as it would just become standard operating procedure, and we would be back to square one.

    As you note, the only path is to do away with the motion to proceed.

  •  Holds only a symptom. (0+ / 0-)

    The reason any hold works is that for the Senate to progress in anything like sensible fashion, half its rules have to be waived.
    That's done by "unanimous consent." So, if one senator doesn't consent, the senate grinds to a halt.
    Better than banning holds -- how would you do that when you're asked for unanimous consent? -- would be to redo the rules of the Senate so that it proceeds sensibly without suspending the rules.

    Corporations are people; money is speech.
    1984 - George Orwell

    by Frank Palmer on Mon Aug 23, 2010 at 09:44:22 AM PDT

  •  Would it be possible to change unanimous concent (0+ / 0-)

    to super-majority consent? set a bar of say 12/13th (for symbolism) majority, with any dissenters getting 5 min of floor time to try to sway votes, then you proceed.

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