Submitted Resolutions: Senate Resolution 216

Aug. 1, 2003

SUBMITTED RESOLUTIONS: SENATE RESOLUTION 216—ESTABLISHING AS A STANDING ORDER OF THE SENATE A REQUIREMENT THAT A SENATOR PUBLICLY DISCLOSES A NOTICE OF INTENT TO OBJECT TO PROCEEDING TO ANY MEASURE OR MATTER

    Mr. WYDEN. Mr. President, the submission of this resolution marks a very important milestone in the seven-year effort I have pursued with Senator Grassley to bring the Senate practice of holds out of the shadows and into the sunshine. Throughout this time we have labored as a bipartisan team to champion the cause of the "sunshine" hold. I especially want to thank Rules Chairman Lott and the Senate's foremost authority on the Rules, Senator Byrd, for their commitment to working with us on this resolution. They know all too well the havoc "secret" holds can wreak on the Senate agenda.

    Whether public or secret, the hold in the Senate is a lot like the seventh inning stretch in baseball: there is no official rule or regulation that talks about it, but it has been observed for so long that it has become a tradition. Its capacity to tie the Senate and Senators in knots is notorious, and it has even given birth to several intriguing offspring: the hostage hold, the rolling hold and the Mae West hold.

    The secret hold is a practice of Senatorial courtesy extended by the respective Leaders. Even though it is one of the Senate's most popular procedures, it cannot be found anywhere in the United States Constitution or in the Senate Rules. It is one of the most powerful weapons any Senator can wield in this body, and in its stealth version, known as the secret hold, it is even more potent.

    The target of this resolution is specifically "holds," which we define as a Senator's intent to object to proceeding to a motion or matter. The resolution does not deal with so-called "consults," which are confidential communications between a Senator and the respective Leader informing the Leader of a Senator's interest in a bill or nomination. This resolution would say to those who want to kill or stop a bill or nomination that they must come forward and notify their respective party leaders. It would not affect the process known as the "consult" insofar as it is used to alert a Senator when a bill or nomination is moving toward the floor so that the Senator may prepare for floor consideration.

    The resolution would establish a Senate Temporary Standing Order for the duration of the 108th Congress allowing "sunshine" holds. The resolution would require a Senator who wishes to object to a motion or matter to publish notice of the intent in the Congressional Record within 3 session days of notifying the respective Leader. The resolution would in no way limit the privilege of any Senator to place a "hold" on a measure or matter, it would simply say that the notice of intent to object to a measure or matter be published.

    Throughout the Senate's history some of the most potent weapons—procedural and otherwise—often have not been rules but rather the absence of them.

    Beginning in 1997 and again in 1998, the United States Senate voted unanimously in favor of amendments Senator GRASSLEY and I sponsored to require that a notice of intent to object be published in the CONGRESSIONAL RECORD within 48 hours. The amendments, however, never survived conference.

    So, Senator GRASSLEY and I took our case to the leadership, and to their credit, TOM DASCHLE and TRENT LOTT agreed it was time to make a change. They recognized the need for more openness in the way the Senate conducts its business. The leaders sent a joint letter in February 1999, to all Senators setting forth a policy requiring "all Senators wishing to place a hold on any legislation or executive calendar business [to] notify the sponsor or the legislation and the committee of jurisdiction of their concerns." Their letter said: "written notification should be provided to the respective Leader stating their intentions regarding the bill or nomination," and that "holds placed on items by a member of a personal or committee staff will not be honored unless accompanied by a written notification from the objecting Senator by the end of the following business day."

    At first, this action seemed to make a real difference: many Senators were more open about their holds, and staff could no longer slap a hold on a bill with a quick phone call. But after some time, the clouds moved in on the sunshine hold, obscuring the progress that had been achieved. Legislative gridlock resumed, and the Senate seemed to have forgotten the Lott/Daschle letter.

    The problem the Senate faces today is not that a significant number of our colleagues make their holds public, but that a small number of Senators do not. It is their abuse of secret holds that contributes to legislative gridlock. By calling for publication of the intent to object in the CONGRESSIONAL RECORD, I believe the resolution puts the burden where it ought to be: not on the leadership, where it is today, but squarely on the shoulders of the objector. An objector who seeks to kill a bill by hiding behind a curtain of secrecy is hurting the leaders' ability to run the body and is obstructing rather than facilitating the Senate's business.

    Public notice of holds may be an inconvenience for a few, but not a hardship. In any given week, Senators insert more than two dozen statements in the RECORD on subjects such as sports teams winning championships and charitable fundraisers. These important events should be recognized, and I would hope that the intent of a Senator to block action on a bill or nomination would be considered of equal importance.

    The sponsors of the resolution have discussed at great length, most recently at the Rules Committee hearing on the subject, the matter of enforcement. My sense is that no Senator will ever go to jail for failing to give public notice of a hold, just as no Senator has gone to jail for violating the Standing Order adopted in the 98th Congress requiring Senators to vote from their assigned desks during the "yeas" and "nays." There are any number of provisions even in the Senate.

    Rules that are not enforced at all or rarely today. Senate Rule XXVI requires the inclusion of various items of information in written committee reports, but Senate Rules do not require committees to file written reports on bills. Senate Rule VII, para. 5, provides committees shall make every reasonable effort to have printed hearings available for Senators before a measure comes to the floor for debate, although the Senate has debated any number of measures without the benefit of a printed report.

    This resolution signals to all members the Senate's preferred manner of doing business. I think most Senators believe the Senate's business should be conducted in public, and I think the American people would agree.

    Sunshine holds would strengthen the Leaders' hands as well as their options. A Leader may opt to continue to honor a secret hold, but a Leader wishing to move a measure or matter would be under no obligation to honor a hold unless the objecting Senator had complied with the Rule and published notice in the RECORD.

    The resolution is constructed so as to become a part of the Temporary Standing Orders, or the series of unanimous consent agreements that are renewed at the outset of each new Congress. Because there may be unintended consequences and because I have no desire to inflict irreparable harm on the Senate Rules, I deferred to the experience and wisdom of Senator BYRD whose wise counsel urged that the terms of the resolution be limited to the 108th Congress. My intent is to revisit the matter with Senators GRASSLEY, LOTT, and BYRD at the end of the 108th Congress to determine the benefits of making the resolution part of the Senate Rules at that time.

    As United States Senators we occupy a position of public trust, and I believe the exercise of the power that has been vested in us should always be accompanied by public accountability. I would argue that it is not the hold, but the anonymity of the hold that is so odious to the basic premise of our democratic system. The Lott-Byrd-Grassley-Wyden resolution would bring the anonymous hold out of the shadows of the Senate. It would assure that the awesome power possessed by an individual Senator to stop legislation or a nomination would be accompanied by the sunshine of public accountability.

    At its hearing in June, the Rules Committee weighed the merits of the Grassley-Wyden Resolution, and considered several fundamental questions: Whether the practice of secret holds is consistent with a democratic system; whether the elimination of the secrecy would disrupt the Constitutional balance of power between the various branches of government; and whether the removal of the secrecy would tip the balance between the rights of the majority and the minority in the Senate.

    My response is that removing secrecy from the hold will not alter the practice, merely its form. Removing secrecy from the hold will not tip the balance in Senate Rules and procedures between majority and minority rights. And removing the secrecy will not alter the balance of powers created under the Constitution. On the contrary, surrendering secrecy will strengthen public accountability and lessen the gridlock that has increasingly come to plague the world's greatest deliberative body.

    I would like to close by quoting the foremost authority on Senate Rules, who served as Majority Leader in the 95th, 96th and 100th Congresses. In Chapter 28, "Reflections of a Party Leader," of Volume II of The Senate, the Honorable ROBERT C. BYRD wrote: "To me, the Senate rules were to be used, when necessary, to advance and expedite the Senate's business." Giving the sunshine hold a place in the Senate's Rules would surely serve this worthy goal.