Secret Holds

Floor Speech

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Mr. WHITEHOUSE. Mr. President, I, first of all, want to salute Senator Wyden of Oregon for his long work on this issue. He has been working on this issue since before I came to the Senate, before I had any experience of secret holds, and saw--as we are seeing right now--their pernicious effect.

At present, we are looking at probably a little less than 80 secret holds by Republicans of President Obama's nominees--some judges. In the past few days, Senator McCaskill and I have come to the floor to push some of these nominees forward, to ask unanimous consent they go forward.

In one case, a nominee was a judge who was supported by both a Democrat and a Republican--the Senators from his home State--who had passed out of the Judiciary Committee by a unanimous rollcall vote of 19 to 0. They have been held for months and months. The distinguished Senator from Arizona, Mr. Kyl, was put in the unfortunate position, since he had voted for this nominee in committee, to have to come to the floor and raise an objection to the unanimous consent request for a judge who he voted for in committee and one of his Republican colleagues supported--the home State Senator supported--to have to object to that nomination going forward because somebody had a secret hold.

We went through a great deal of these. I want to salute Senator McCaskill. She carried the greater part of the burden. I only tried to move a few. I think she tried to move over 70 by the time the day was done. I really want to extend my appreciation to her for that.

I say to Senator Wyden, as I understand it, the rule is that now that these unanimous consent requests have been made, there is a 6-day-of-session period that has now begun to run, and at the end of that 6 days, our Republican colleagues will be obliged to disclose publicly their holds, who is holding it, and what their reason is.

I understand there is a potential loophole, which is they could pull sort of the old switcharoo, and in the 6-day period the Senator or Senators with the hold could all release their hold so that at the end of the 6-day period they have no hold to disclose, but they could connive with another colleague to put in a new hold, since the unanimous consent request, so they can start the process all over and hide their accountability.

But it strikes me those are really the only two choices our Republican colleagues have: They either have to divulge or they have to engage in a game of switcharoo, connivance with another Republican colleague to try to duck out from under the rule which was passed I think by 92 votes. It has very strong bipartisan support.

I say to Senator Wyden, I just wanted to clear that understanding with the Senator since he is an expert on this issue, that the clock is running, that they have 6 days to come clean about this; and that the only two ways out are either to divulge or connive with another Senator to engage in a little switcharoo.

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Mr. WHITEHOUSE. So to have 80 secret holds by one party, all at once pending in the Senate, is not consistent with the history of the use of this procedural tactic in this body. Is my understanding correct?

Mr. WYDEN. The Senator is absolutely right about the fact that 80 secret holds is clearly not what Senator Grassley and I and reformers thought would happen. Given all these secret holds, you would think at the back of the Executive Calendar--which is page 19; it is entitled ``Notice of Intent to Object to Proceeding''--given what the distinguished Senator from Rhode Island has pointed out, one would think that page 19, ``Notice of Intent to Object to Proceeding,'' would be filled with these names if the rule was being honored.

I say to the Senator, both you and I are holding up this page 19 with nary a word on it.

Mr. WHITEHOUSE. We are looking at an empty page.

So just to summarize, the clock has run as a result of this series of unanimous consent requests Senator McCaskill and I have put forward. The 6 days have begun. By the end of that, one of three things--as the Senator has corrected me--will have happened. Either the hold will have been lifted, and then we can move to unanimous consent and clear these individuals who the President has nominated and get them to work for the American people or, two, the Senator who has the secret hold will have to acknowledge publicly and become transparent and clear and candid with the rest of the body about who they are holding and why, or, three, they can engage in this rather obscure, shall we say, game of rotating holds, what I called the switcharoo, ducking out before the time runs and getting somebody else to actually have your hold for you but get in a proxy.

Given this was a rule that was adopted with a very strong vote, a very strong bipartisan vote, and that it is now a rule of the Senate, what comment would the Senator have on that third tactic in terms of its merit and appropriateness, if we find it is being used at the end of the 6 days? Would that spur the need for reform of this rule?

Mr. WYDEN. It surely would. I am grateful to the Senator from Rhode Island for prosecuting the reform case. I have talked with Senator Grassley about it, and with Senator McCaskill and the Senator, and I think this is the time.

There are two points with respect to the secret hold: one as it relates to the institution and one as it relates to an individual Senator. With respect to the institution, in this example, the Senator has given us scores of these secret holds. I think this serves to undermine the credibility of the institution at a crucial time in American history. It is no secret Americans are divided on a host of issues.

Well, if the Senate insists on doing so much important business in secret--which is what happens if you honor these secret holds--I think that just undermines the institution. Because I think, first and foremost, you are absolutely right to zero in right now where we have all these secret holds.

Secondly, with respect to an individual Senator, what seems particularly important--the Senator and I share an interest in health care and a variety of economic issues--suppose an individual Senator works for years and years to try to build a bipartisan coalition on an issue and then is done in by an unknown or secret opponent, an unknown, unseen opponent who has been able, in effect, to block all that bipartisan work in secret.

So I want the Senator to know I am four-square behind his efforts to get this changed. Senator Grassley and I have been talking about it. I think there is an opportunity to make this bipartisan.

I will also say, in closing--and the Senator has been kind to give me all this time--I do not think the secret hold passes the smell test of openness in American government. It is time to change it. I look forward to working with my colleague to finally, after all of these years, get this done and send the secret hold off into the dust bin of history.

Mr. WHITEHOUSE. The legacy of the Senator from Oregon on this, with 10
years of work, is very impressive to this newer Senator. I appreciate so much what he and Senator Grassley have done over the years to begin to put an end to this practice.

I think the straw that broke the camel's back--or maybe the 80 straws that broke the camel's back--was the absolute avalanche of secret holds that has confronted our new President from this Republican minority.

It has come to the point where the President, I think fairly, believes his ability to staff his own administration is being compromised by people who will not stand and be counted and be accountable for the reason for their opposition. It is being done in the dark, secretly, and without any accountability. I agree that needs to be put to an end.

So I urge people who are watching this: The sixth day has begun--6 days of session. At the end, we will know who is doing this or we will be able to clear these nominees, and we will have broken this unfortunate practice, to a significant degree or we will have learned something I think very unfortunate about our friends on the other side; that is, that they have agreed to connive with one another to play a switcharoo and bring in a new Senator to dodge the clear import of the rule that the Senator from Oregon and Senator Grassley worked on, on a bipartisan basis, to put into effect in this body and which was approved by an enormous majority of this body. So the clock is running and we will see. We will learn a lot about this institution and our colleagues in 6 days. I thank the Senator for his leadership on this issue.

I yield the floor, and I note the absence of a quorum.

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