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Democrats looking at amendment to ban 'secret' holds

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.

"This situation is intolerable," Durbin said. "Secret holds have become a reprehensible part of the process here, and they need to end."

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?"

Some Republicans, like Sen. Jim DeMint (S.C.) have been vocal about their reasons for putting holds on nominees. But Whitehouse, who's emerged as a sharp critic of conservatives on legal issues, suggested that the GOP was either breaking rules or being obscure about its strategy.

"One possibility is that they are just flat out directly violating the rule, just refusing to following the Senate rules," said Whitehouse. "The second is that they are engaged in hold-laundering, that is that the people who originally had the hold have walked away from it after the six days have arranged for someone else to come in after the six-day period and have a new hold."

"It seems like we're institutionalizing dysfunction," said Sen. Mark Warner (D-Va.). "This seems to be an attack on this administration to do its constitutional duty."

"It's a stupid tradition," said McCaskill, who has 53 co-signers (all Democrats) of her anti-hold letter. "We shouldn't have secret holds."

Here's the rule, by the way, from the 2007 act.

SEC. 114. REQUIREMENT OF NOTICE OF INTENT TO PROCEED.

(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) submits the notice of intent in writing to the appropriate leader or their designee; and

(2) within 3 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 XX, intend to object to proceeding to XX, dated XX.'.

(b) Calendar- The Secretary of the Senate shall establish 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 subsection (a)(2), the measure or matter covered by the calendar that the Senator objects to, and the date the objection was filed.

(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 XX, do not object to proceeding to XX, dated XX.'.

By David Weigel  |  May 6, 2010; 1:10 PM ET
Categories:  Senate  
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