Department Of State, Foreign Operations, And Related Programs Appropriations Act, 2010--Motion To Proceed

Floor Speech

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SECRET HOLDS

Mr. WYDEN. Madam President, there are currently 48 vacancies on courts that the Federal judiciary considers to be judicial emergencies. Let me restate that. Filling these vacancies is now such a priority that they are considered judicial emergencies. One of those vacancies considered to be a judicial emergency is one of the positions for the U.S. District Court for Oregon. My view is this problem is only going to get worse with another 20 judges having announced plans to retire. If these positions remain vacant, we all understand it could delay trials and certainly justice delayed is justice denied.

The stalling of judicial nominations also discourages qualified candidates from serving on the bench. Those the country most needs on the bench cannot put their lives on hold for months or years while their nominations sit on the Senate calendar, blocked for no apparent reason.

One of the things that is most striking about how the country has gotten into this predicament is that experts who have analyzed the situation with respect to the delay in getting judges confirmed come back to Senate procedures as a significant factor in the holdup. Repeatedly, these independent experts say the Senate's secret hold, the process by which one Senator, just one, can anonymously block a judicial nomination from being considered on the floor of the Senate, is a central factor in the delay in getting these judges confirmed.

I have come to the Senate floor today to say, when we have so many designated judicial emergencies, when there are so many individuals who have won bipartisan support, and a big factor in not getting judges confirmed is the Senate is unwilling to do public business in public, it suggests to me it is time to eliminate the secret hold which is keeping sunshine from coming to the Senate when it comes to the consideration of judicial nominations and other important business.

Fortunately, colleagues on both sides of the aisle--a big group on our side of the aisle and a big group on the other side of the aisle--have repeatedly said they want to come together, end secret holds, and do public business in public.

At this time I would particularly like to commend my colleague from Iowa, Senator Grassley, who has spent well over a decade working on this effort with me, and also single out Senator McCaskill from Missouri, who has done outstanding work as well mobilizing colleagues from both sides of the aisle, and who also wants to have this procedure changed and have new accountability and sunshine in the Senate.

All we need to be able to do is get this out in front of the Senate--frankly, out in front of the American people--so they can find out who is in favor of transparency, who is in favor of accountability, and who still thinks we ought to do business behind closed doors.

Some in the Senate continue to claim a secret hold does not prevent the Senate from consideration of a nomination or piece of legislation. They say, for example, the majority leader can always file what we know as cloture on that nomination or bill to overcome a hold. That may be true in theory, but for all practical purposes it cannot be done. The process of filing cloture on a nomination certainly can gobble up almost a week on the Senate schedule. So the Senate could easily spend the remainder of the time remaining this year with votes on just a few nominations now on the Executive Calendar and still not come close to clearing the backlog of nominations. The fact is, a secret hold can effectively kill a nomination or piece of legislation.

As we have said, our big bipartisan group in the Senate repeatedly has said all of this secrecy, all of this work to keep the public from finding out what is going on--all of it can be done without anybody, any colleagues in the Senate or the American people, knowing who was the secret obstructor and why they were, in fact, obstructing.

There is one other point I would like to make, particularly with so much of the country looking at how Washington, DC, works and how broken so much of our system is; that is, how much power a secret hold provides to a lobbyist. I am sure virtually every Member of the Senate has at some point gotten a request from somebody who is a lobbyist asking if the Senator would put a secret hold on a bill or nomination in order to kill it--to kill it without getting any public debate and without the lobbyist's fingerprints on it anywhere.

Certainly, if a lobbyist finds it possible to get a Senator to put an anonymous hold on a bill, it is pretty much like hitting the lobbyist jackpot. Not only is the Senator protected by the cloak of anonymity, but so is the lobbyist, and in effect, through secrecy, a secret hold can let the lobbyist play both sides of the street. It can give a lobbyist a victory with clients without alienating a potential or future client.

Given the number of instances where I heard a lobbyist asking for secret holds, I think it is fair to say a secret hold is in effect a stealth extension of the lobbying world.

So when you think about the powers that lobbyists already have, why in the world would you want to give them another tool, the secret hold, which could, as I have characterized it, literally be a stealth extension of the lobbying world. I think it makes no sense at all, and I come down on the side of openness and transparency.

I congratulate my colleague, Senator Grassley from Iowa, who stood with me, and Senator McCaskill--a big group of colleagues from both sides. On the other side of the aisle, Senator Collins, Senator Inhofe, and others have spent a great deal of time. Here it has been Senator Whitehouse, Senator Udall, and the presiding officer, Senator Gillibrand--a whole host of colleagues, Democrats and Republicans, who think it is time, when the American people are obviously so angry at the way Washington, DC, does business, to make it clear that we are all going to come together and change the process of letting an individual Senator obstruct the people's business in secret.

It seems to me the bottom line is that a secret hold is literally an indefensible denial of the public's right to know, particularly at a time when there is so much frustration and anger at the way business is done in Washington, DC. The public's right to know ought to be sacrosanct. Certainly, we are talking about the kind of matters Democrats and Republicans talk about all the time in public. Nobody is talking about national security or classified matters being brought out here for the kind of sunshine that I and Senator Grassley and Senator McCaskill want to bring to the Senate. This is about the people's business--legislation and nominations, those judicial emergencies and the scores of appointments that are being held up, pieces of legislation that involve millions of people and billions of dollars. It seems to me there ought to be public disclosure. There ought to be consequences if a Senator fails to disclose a secret hold.

In the interest of dealing with the crisis in our courts and the importance of bringing public business to the floor of the Senate, I hope my colleagues will come together and quickly pass the bipartisan proposal which will once and for all eliminate secret holds.

There have been past attempts. Senator Grassley and I were able, as part of the ethics legislation, to get a provision through that we hoped would make a big difference. What happened then is, the friends of secrecy went back and found other ways to get around it. It is time once and for all to strangle secret holds. That is what a bipartisan group in the Senate wants to do, and it is important that measure be enacted and enacted quickly.

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

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