Senate 'holds': Where just one senator makes a majority

McClatchy NewspapersFebruary 19, 2010 

WASHINGTON — The shadowy practice of Senate "holds" — the power of one lawmaker to block nominations or legislation indefinitely — is a big reason that the Senate is gridlocked.

In an age when information flies across the Internet instantly, the Senate continues to conduct crucial business with this throwback to a time when gentlemen's agreements were the chief currency of the legislative process. In fact, holds appear to be more popular than ever.

There's no easy way for the public to learn what's being held up or who's responsible.

"There is hardly any public record of who places holds, how it is done (often by letter to the party leader), how many holds are placed on any bill or how long they will be honored by the majority leadership," a 2008 Congressional Research Service study said. Senate Democratic and Republican leaders' offices this week couldn't provide any firm data on holds.

As a result, "one senator can subvert the entire democratic process. We don't have the Senate confirming political appointees promptly, and that means decisions are not made at agencies," said Melanie Sloan, the executive director of Citizens for Responsibility and Ethics in Washington, a watchdog group.

The custom dates to the mid-19th century, and it became widely used beginning in the 1960s, when party leaders saw it as a way to make individual senators feel powerful.

"But the flip side was that it gave every senator a veto, even the freshmen," Senate historian Donald Ritchie said.

The tactic has soared into the limelight recently because of some well-publicized holds. In one, Sen. Kit Bond, R-Mo., blocked Martha Johnson's confirmation as the head of the General Services Administration because he was annoyed by how the agency handled complaints about a troubled Kansas City federal center.

Once President Barack Obama complained publicly after a nine-month delay, the Senate approved Johnson unanimously; even Bond ended up backing her.

Sen. Richard Shelby, R-Ala., recently held up the nominations of dozens of Obama administration appointees as he sought to draw attention to the Air Force's refueling tanker program and an FBI terrorism analysis center he hoped would bring jobs to his state. He dropped most of his holds after he got the White House's attention.

Sen. Bernard Sanders, a Vermont independent, briefly made a public effort to stall Federal Reserve Board Chairman Ben Bernanke's bid for a second term. Bernanke also was confirmed eventually, with 70 votes.

Obama maintained earlier this month that 63 nominees were being held up because of Republican holds, and he threatened to make "recess appointments," which don't need Senate confirmation, if the logjam didn't break. On Feb. 11, the Senate quickly confirmed 27 nominees whose holds had been lifted, though some top picks at the Pentagon and the Treasury Department are still stalled.

"It's not as though they were dissatisfied by the qualifications of the nominees. They say, 'I'll just take hostages,' until they get attention," said Norman Ornstein, an expert on Congress at the American Enterprise Institute, a conservative research center.

Holds are popular with most senators; Democrats as well as Republicans have engaged in the practice routinely for years.

After Obama's first year, the Senate had confirmed 353 of his 569 major nominations. During President George W. Bush's first year, when Democrats controlled the Senate for about eight months, 513 people were nominated and 360 confirmed, according to the White House Transition Project, which studies new administrations.

The hold process clearly "delays democracy," said Terry Sullivan, an associate professor of political science at the University of North Carolina at Chapel Hill and the transition project's executive director.

While it's impossible to pinpoint the impacts of holds, Bill Allison, an analyst at the Sunlight Foundation, which promotes open government, cited the fate of Erroll Southers, a nominee last year to head the Transportation Security Administration.

Sen. Jim DeMint, R-S.C., who was concerned about Southers' views on trade unions, put a hold on his nomination. Three months after Southers was nominated, Umar Farouk Abdulmutallab boarded a Detroit-bound plane, allegedly with explosive material, and was apprehended.

"I don't know if having a full-time director would have made things better, but not having one could have hurt employee morale and discipline," Allison said. "It's a fair question to ask."

Southers, a former FBI agent, withdrew his name in January amid controversy that he'd used a law enforcement database to learn about his ex-wife's boyfriend.

The system was supposed to be more transparent. In 2007, the Senate began requiring senators to place notices in the Congressional Record within six days of declaring their intentions to place holds. Sloan's group found in December, however, that the new rules have been "disregarded by senators of both parties."

One end run is the practice of merely threatening a hold, rather than placing it. That has the same effect as placing a hold, but it doesn't trigger the formal process that requires disclosure.

Then there's the "tag team" hold, in which senators block someone for a few days, then hand off the hold to another senator, skirting the rule requiring timely disclosure.

At least three Republican senators reportedly used that tactic last year to delay the nomination of Harvard Law School professor Cass Sunstein as the White House's regulatory czar.

Some senators offer what they say are principled reasons for holds.

Sen. Tom Coburn, R-Okla., routinely tries to block legislation that he thinks will boost federal budget deficits. His office notifies the affected senator's staff, but Coburn typically doesn't disclose his holds unless he's asked. "He doesn't pick the fight with another office, but he's willing to have the fight," spokesman John Hart said.

As long as Coburn objects, the Senate is unlikely to consider such matters as the "Indian Tribes of Virginia Federal Recognition Act" by Sen. Jim Webb, D-Va., or a bill by Sen. Thomas Carper, D-Del., to study black carbon emissions.

Webb's bill would cost an estimated $52 million over five years, according to the nonpartisan Congressional Budget Office, and Carper's plan would spend about $2 million through 2011.

Democrats also use the tactic. Labor lawyer John Sullivan has seen his confirmation to the Federal Election Commission delayed for eight months because of concerns from Sens. Russ Feingold, D-Wis., and John McCain, R-Ariz., who want Obama to fill two other vacant FEC slots dedicated to tough enforcement of campaign finance laws.

Jeff Patch, a spokesman for the Center for Competitive Politics, a libertarian research group, said that Sullivan's nomination should go to the Senate floor. "Put it out for an up-or-down vote," he said. "There's no substantive discussion here about his qualifications."

However, senators would rather honor their tradition of permitting one another to place holds.

"Senators like doing anything that magnifies their power," said Allison of the Sunlight Foundation, "and there's an awful lot of self-interest in maintaining holds."

ON THE WEB

White House nominations pending in the Senate

Sen. Sanders' statement on Fed Chairman Ben Bernanke

Congressional Budget Office report on Virginia recognition act

White House Transition Project

Citizens for Responsibility and Ethics in Washington letter on holds

Sen. Bond's statement on Martha Johnson

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