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Secret holds are not the problem (but the Democrats would like to make them the problem)

I've never been able to get a straight answer on why, exactly, senators should be able to place anonymous holds on nominees. I can see the arguments for holds themselves: They allow senators to express strong opposition and, from a bargaining standpoint, they give senators leverage to use on other priorities. But making a hold anonymous undermines both arguments: It means no one knows why there's opposition and no senator can bargain on the issue.

That said, if the problem is that Republicans have bottled up more than 90 nominees, the answer isn't to get rid of secret holds. The answer is, on the one hand, to make fewer positions Senate confirmable (there's no reason the Senate needs to vote on the assistant secretary of state for educational and cultural affairs), and on the other, to make it harder to obstruct nominations. In reality, holds work because breaking a filibuster takes about a week even if you have the votes. The Senate has more pressing things to do than spend a week voting on the deputy director of the Peace Corps, so the Peace Corps ends up going without a deputy director.

To think about this differently, imagine how much hiring would get done at IBM if their board of directors had to spend a week considering each and every potential employee.

As it happens, Democrats would prefer to make the issue about secret holds because, on the one hand, Republicans are already on-record against them, and on the other hand, they're wildly objectionable. And we should get rid of secret holds. But the problem is much deeper than that. The Senate shouldn't be confirming so many nominees. I mean, look at this list. It's absurd. And it shouldn't be so easy for the minority to stop the Senate from conducting its business.

By Ezra Klein  |  May 7, 2010; 9:11 AM ET
Categories:  Senate  
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Comments

If the GOP does take over the Senate in November, divided government may provide an opportunity for rule changes, as it may not seem like such a zero-sum game. Democrats could still support the changes, knowing that the White House would veto any GOP legislation they found too objectionable.

Posted by: jduptonma | May 7, 2010 9:24 AM | Report abuse

I would really like to see the number of Senate confirmed positions reduced. The Reagan Administration began this politicization of the agencies and it should not only be stopped but reversed. The loss of good solid governmental expertise to the political whims of Dems and Repubs is a shame.

Posted by: Kew100 | May 7, 2010 9:33 AM | Report abuse

The government is not a business and should not be run like IBM. That is a silly comparison. But even the suggestion that democrats might be framing an issue a certain way to politicize it is odd, coming from you. Have you been into Dad's liquor cabinet again?

Posted by: truck1 | May 7, 2010 9:36 AM | Report abuse

Politicians have ways of creating "rules" or mechanisms to intentionally allow them to get nothing done (to maintain the status quo) and then go home and explain that it's someone else's fault. If the Dems (or Repubs) complain something isn't getting done because of someone else, it's pure BS. It's really because they don't want it to get done.

Posted by: Lomillialor | May 7, 2010 9:39 AM | Report abuse

You make a good point about the fact that a small number of senators (in some cases as few as one) should not be able to hold up the appointment of the assistant secretary of state for educational and cultural affairs. But the problem is much broader than one senator or a minority of senators holding up the business of the Senate. In terms of holds on nominations, the problem is a small minority of senators holding up the functioning of government.

Of course, this is part of the Republican strategy to argue that (capital D) Democratic Government does not work. I just make this point to argue that even at its best, allowing a single senator to gain leverage for other priorities (i.e. defense contracts for his state) by holding up an executive branch nominee is highly problematic.

Posted by: CFU2010 | May 7, 2010 9:39 AM | Report abuse

Democrats like to complain about Republicans putting the holds, but I don't think there's one single person out there who doesn't think they could fix it if they wanted to.

So blame really goes to the Senate Democrats.

As long as the Senate is the most dysfunctional place in DC, it will show whomever is in charge of it in the worst possible light. Specially because whenever they're in power, they themselves don't want to change the rules.

And folks wonder why their approval ratings are subterranean??? Really, are they still insisting they don't know??

Posted by: JERiv | May 7, 2010 9:49 AM | Report abuse

A while back CSPAN covered (http://www.c-span.org/Watch/Media/2010/03/12/HP/R/30576/Senate+Filibusters+debated+at+think+tank+forums.aspx) Parliamentarian Emeritus Robert Dove discussing "holds" -- which are letters to the majority leader expressing concern over a nomination, allowing the leader to more easily plan the Senate calendar. In Dove's own words "I hear the comments on holds and I'd like to point out what a hold is. It's a letter. It's a letter directed to the leader of your party saying that you have a certain range of options with regard to something that may come up. Those letters are very valuable to the leaders. They keep calendars in which all of those holds are marked so that they know what it is they will have to face when they go to something. It doesn't stop them from going to it. It gives them information."

So, a "secret hold" would seem to be the absence of a letter indicating opposition -- and this absence of pre-stated opposition forces the leadership to wonder how a given vote might turn out. While I can certainly see the advantage in knowing the outcome of an election or vote before the election or vote actually takes place, I'm not sure such unforeseen outcomes rank as crisis. Do we really want the behavior of the House, where a single individual (the Speaker) can schedule votes only when success is guaranteed? Why even have a multi-member legislative body if a single king or queen could do the job?

Posted by: rmgregory | May 7, 2010 9:49 AM | Report abuse

rmgregory I think you are thinking of this backwards. It is never that the success of a nomination is guaranteed. A hold or a secret hold is a guarantee of failure. A hold say "No point in talking about this, as the nomination will fail." In reality, it is the hold placer that gets to act like a secret king because they have the power to stop your career without giving you a single word to defend yourself. Without a hold, the nomination would get debated and voted upon. The nominee could be questioned and have a change to defend their positions and decisions. A hold stifles debate and eliminates the vote.

Posted by: cminmd1 | May 7, 2010 10:05 AM | Report abuse

I was simply quoting Parliamentarian Dove, who stated:

"In Dove's own words "I hear the comments on holds and I'd like to point out what a hold is. It's a letter. It's a letter directed to the leader of your party saying that you have a certain range of options with regard to something that may come up. Those letters are very valuable to the leaders. They keep calendars in which all of those holds are marked so that they know what it is they will have to face when they go to something. It doesn't stop them from going to it. It gives them information."

Those last two sentences -- "It doesn't stop them from going to it. It gives them information." -- seem to be quite clear.

Posted by: rmgregory | May 7, 2010 10:21 AM | Report abuse

Obama has the power to make recess appointments. Why doesn't he? Does he not care whether or not his administration is fully staffed?

There are over 90 appointees waiting confirmation. To me, that would mean over 90 appointments during the next recess.

Posted by: pj_camp | May 7, 2010 10:23 AM | Report abuse

This is a bad solution. The correct goal here isn't to give the Senate fewer decisions to make. It's to start fixing their dysfunctional decision-making process.

And as far as fixes go, getting rid of "secret holds" is freaking stupid. The Dems should be going much bigger here--and this particular confirmation problem is RIDICULOUSLY easy to fix.

Propose a rule that all nominees have to be voted upon within 6 weeks of their nomination. A straight majority wins it, and once the majority leader schedules the vote, there's no delaying tactics allowed--the confirmation process is outside the Senate's normal rules. If there's no vote within 6 weeks, the Senate's consent is presumed, and the candidate is confirmed. If the nominee loses, s/he can be re-submitted for this same position, but the nomination is considered under the old system (nomination of a new person to the position is, of course, under the new system).

If we're worried staff can't handle a flood of appointees, make some kind of "you can only have X number of names pending in any 6 week period" kind of rule. Would probably want to throw in an exception for the transition period.

This is much easier to understand than trying to explain why SECRET holds are bad, but open holds are just fine. In reality, people should be confirmed, or they should be ditched. There's freaking WORK to be done, and this power tripping by individual Senators is abusive to America, to the constitutional process, and to the people who are putting their lives on hold because they want to do public service.

Posted by: theorajones1 | May 7, 2010 10:33 AM | Report abuse

@Ezra:
Historically any official not appointed by the President is de facto a creature of Congress. Congress sets the budgets and the rules, and if they don't like what you're doing they can zero your budget. CVonversely if they like what you're doing they can triple your budget.

Thus everyone with real power in the Executive Branch has to be a Presidential Appointee, which means they need Senate confirmation.

That might be changing, because Congress doesn't really maximize it's own power at expense of the Executive these days. But individual Congressman are still important, and can still zero your budget if they want, so I doubt Obama will reduce the number of appointments.

Posted by: NickBenjamin | May 7, 2010 10:34 AM | Report abuse

"But the problem is much deeper than that. The Senate shouldn't be confirming so many nominees."

Ezra is, as often is the case, exactly right. But I expect it isn't going to change. Are the Democrats going to want to give up this power when in the minority? Are the Republicans really want to give it up, even if in the majority, when they expect to be in the minority again?

The deep weirdness here is that the Republicans aren't trying to extract concessions with their obstructionism--they just really don't want the government to work, so they can run against the non-functioning of government in November. Or, if I give them the benefit of the doubt, they think a non-functioning government is better and less damaging than a functioning government with liberals pulling the strings and making the decisions. But they seem to have abandoned the idea of truly advancing an agenda. Maybe the think if they just keep being the party of no, the agenda will advance itself.

Posted by: Kevin_Willis | May 7, 2010 10:40 AM | Report abuse

This is another of those cases where we should seriously consider embracing the power of "and".

Secret holds are not THE problem, as Ezra rightly points out. But they are *A* problem, and they shouldn't be allowed.

I'm generally against the government doing anything in secret. Except in such cases where necessary for national security, things should be done in the open, with the proponents names attached to them, so the voters can make up their mind if that's the sort of representative they want come election time.

Posted by: RobWynne | May 7, 2010 11:01 AM | Report abuse

@ theorajones1

That's a great idea. Actually, why not do both? Have confirmation only for judges/justices on the appeals courts or higher, plus the highest ranking officers of each agency.

Posted by: etdean1 | May 7, 2010 11:02 AM | Report abuse

"look at this list:" What's absurd is that we have all these positions anyway! We could probably cut about half of them and never miss them. And who even knows how many underlings there are below these headings?! Followed by THEIR underlings, and on and on.

Posted by: Lilycat1 | May 7, 2010 11:18 AM | Report abuse

This list doesn't seem so bad considering there are 2+ million federal civilian employees. I'm skeptical about "reforming" the process by reducing the ability of the legislature to check the executive. That sounds like a George W. Bush method of "improving" the process of governance -- just hand more power to the president.

Posted by: dollarwatcher | May 7, 2010 1:08 PM | Report abuse

theorajones contends that:

"This is a bad solution. The correct goal here isn't to give the Senate fewer decisions to make. It's to start fixing their dysfunctional decision-making process."

I agree with theora about dysfunctional Senate procedures, but Klein has a point. Check out the list...the link is in Klein's article. There are literally thousands of appointed positions on that list. The Senate has other business to attend besides approving or disapproving appointees to obscure Agriculture Department committees and advisory boards, which is why THIS business (appointments) is simply not getting done.

Posted by: Observer44 | May 7, 2010 2:28 PM | Report abuse

The problem isn't holds or the number of confirmations, its the senate. Lets end a body that gives some states far more voting power than others. Lets end America's house of lords!

Posted by: threed61 | May 7, 2010 2:50 PM | Report abuse

Oh, Ezra, I'm so sure that you would want to eliminate Senate approval for so many positions and enhance the power of the presidency if Bush and Cheney had a probable 7 years to go!

Posted by: buchmann | May 7, 2010 2:55 PM | Report abuse

Ezra:

Great point! The Senate needs a serious procedural make-over. Mitch McConnell is having a field day with his obstructionist agenda.

If only Senate democrats could get it together to agree on contentious issues such as procedural reforms.

Why do you think the republican leadership is so good at keeping their ranks in line? Is it because of the Norquist breakfasts and other tyrannical traditions?

Posted by: dep05 | May 7, 2010 2:58 PM | Report abuse

Why are the repugs so childish. You won but we will make sure the victory is meaningless. They remind of that moron w.

Posted by: davidsawh | May 7, 2010 4:27 PM | Report abuse

Why not just give every Senator 1 hold per year or per session? If they really feel strongly about a particular nominee, they can use it. But they can't just block everything because they are acting like a petulant child who wants their toys back.

Posted by: cyberfool | May 7, 2010 4:46 PM | Report abuse

Of course changing senate rules requires 67 votes, so the tiny minority part which thinks political games are far more important than the safety and wellbeing of the government would block any attemtp to remove their ability to block things easily and secretly.

The best scenario would be to elect 68 Democrats to the senate. Then holds would not be a problem, and niether would doing the things the nation so desperately needs.

Posted by: John1263 | May 7, 2010 4:52 PM | Report abuse

Yeah - secret holds ARE the problem.

It is only a COWARD who puts a secret hold on a nominee. If there is some problem with the nominee then say so.

The only reason the republicans put secret holds on nominees is to obstruct government. If they had any legitimate reason to oppose them they would not be afraid to say so.

Posted by: orange3 | May 7, 2010 5:23 PM | Report abuse

This is absolutely absurd! No wonder the country is mired in one problem after another. No one's around to do the work on grunt level! Modify this rule now and get some work done and get rid of the secret hold. The person who object should be required to explain why to the nation.

Posted by: pelohoki | May 7, 2010 5:29 PM | Report abuse

The President has options to respond to such holds.

If the Senator wants to put a hold on someone, respond by putting a hold on some of that state's federal money.

Order the DOD to "temporarily" close one of the military bases in the Senator's state by transferring all of the soldiers/sailors/airmen to other bases and laying off most of the workers. Cut off other federal funding sources "temporarily."

When I served in the military many years back, I can remember the commanding officer restricting all personnel to the base whenever the local government got a little excessive in their harassment of the troops. Many of us can remember the signs in stores of "No sailors or dogs!"

Cutting off the merchants/bars source of money for a couple of weeks really hit home and the mayor would quickly put the
word out to the police to cut back on the hassle.

Posted by: DCeiver | May 7, 2010 5:34 PM | Report abuse

I'm in favor of good governance. By either party. Holds don't provide good governance.

There are too many positions that the Senate needs to approve. In general, you have to question whether they do a good job on approvals.

Posted by: zcezcest1 | May 7, 2010 6:01 PM | Report abuse

I see Mr. Klein's point and it is indeed a valid one, but getting rid of secret holds and redefining who needs to go through senate confirmation are a) two vastly different propositions, and b) not mutually exclusive. He is right that we should reconsider which government positions necessitate senatorial approval, and fixing secret holds isn't an overhaul like that by any stretch of the imagination. But- deciding that we need a stronger fix, one so unlikely to pass, INSTEAD of taking care of the holds issue, as opposed to in conjunction with it, is essentially like saying "DADT is terrible, but getting rid of it would do so little to fix gay rights issues on a systemic level that it probably isn't worth the hassle. We should just wait to pass a whole gay rights package at some point in the future instead."

Posted by: Everyman2 | May 7, 2010 6:14 PM | Report abuse

Shouldn't such rules, filibuster and secret holds, be considered unconstitutional? The Constitution specifically states one man, one vote. Giving every senator the power to stop government is certainly more than one vote. It was certainly not what the drafters of the Constitution envisioned. Of course, doing away with this power grab works both ways; someday the GOP will control the Senate and they may pass legislation over the protests of the minority. But, that's Democracy. Also, the Senate should not be able to hamstring the Executive by holding up appointments.

This fiasco (it's almost been a running comedy show) since the GOP lost power, brings to light the highly undemocratic nature of the Senate. It doesn't generate more debate (the filibuster rule negates that), it facilitates deal making. Any senator able to stand public scrutiny can force something for himself or others from the government. We saw that with Sen. Ben Nelson. Maybe it's time to start thinking about amending the Constitution to abolish the federal Senate.

Posted by: Reesh | May 7, 2010 6:56 PM | Report abuse

Getting rid of secret holds would make it necessary for any member of Congress to have to defend their action if they put a hold on a nomination. This should be the case. There is no reason that a senator should be allwed to create a hold in secrecy. It is a cowards behavior.
In addition the voters have the right to know who is acting to impede the business of the Senate and why.

Posted by: aiford | May 8, 2010 4:02 AM | Report abuse

Ezra you are so right. Take these nominations out of the hands of partisan senators. It is too time consuming and inefficient besides being a political mess. President Obama needs to step up and make these changes so that the Senate can get more important business done, but also to put these nominees to work and not hanging in limbo or eventually not even available anymore with months going by.

Posted by: equalon | May 8, 2010 12:03 PM | Report abuse

While I agree that secret holds ought to be eliminated entirely from the Senate's confirmation process, I do not agree that reducing the number of officers for whom Senate confirmation is required is a better - or even a good - idea.

A better approach would be a Constitutional amendment removing the Senate from any participation in the enactment of legislation.

The effect of such an amendment would restrict the Senate to ratification of treaties, advice and consent on Presidential appointments, and the conduct of impeachment trials. Without the need to consider or vote on legislation, the Senate would have ample time to discharge its role in the appointment, ratification, and impeachment processes.

The decision to establish a bicameral legislative branch was based on the mistaken notions that there is a class of people better suited to the task of governing than those elected to the House of Representatives and that the "States" in their own right ought to be represented in Congress. The first was nothing more than an effort to create a nobility, and the second was abandoned by the direct election of Senators.

Extending the terms of House members to four years and empowering the House as a unicameral legislative body would reduce the Senate's workload sufficiently to enable it to conduct its confirmation, ratification, and impeachment duties more responsibly.

Posted by: quaijiang | May 8, 2010 12:22 PM | Report abuse

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