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(3) NOTICE- A Senator who has notified their respective leader and who has withdrawn their objection within the 6 session day period is not required to submit a notification under subsection (a)(2).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