Amending Senate Rules

Floor Speech

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Mr. WYDEN. Madam President, before he leaves the floor, let me thank Senator Alexander for the discussions he has had with me on this issue. Senator McConnell has also spoken with me about this. I wish we were getting this done today, largely because this would give us a chance on the first day of the Senate's new session to send a message that once and for all we were deep-sixing secrecy, that we were saying public business ought to be done in public. I wish it were being done today but I understand completely the sentiments of the Senator from Tennessee and the fact that he is willing to work with me is something I appreciate.

As I have indicated, there are obviously significant differences between the parties about how to reform the rules of the Senate. What I hope will be done--certainly the very first day that the Senate comes back and is in a position to formally act, which appears to be January 24--is once and for all we would bring Democrats and Republicans together around an extraordinarily important change in the Senate procedures that Senator Grassley and I have been trying to change for literally 15 years. Particularly with the energy and enthusiasm Senator McCaskill has brought to the cause, I think we are now on the cusp of being able to finally get this done.

It has been clear that if you walk up and down the Main Streets of this country, people do not know what a secret hold is. Probably a lot of people think it is a hair spray. The fact of the matter is there are practically more versions of secret holds in the Senate than there are in pro wrestling. But what a secret hold is really all about, it is one of the most extraordinary powers an individual Senator has here in the Senate and it can be exercised without any transparency and without any accountability whatsoever. What a secret hold is all about is one Senator can block the American people, the entire country, from learning about a piece of legislation that can involve billions of dollars, scores and scores of people, or a nomination with the ability to influence the lives of all Americans. One Senator can block that consideration without owning up to the fact that Senator is the one who is defying the public's right to know about how Senate business is blocked.

That is wrong. It is not about how Republicans see it, or Democrats see it, it is just common sense. Most people say, when you tell them that a Senator can block an enormously important piece of legislation or a nomination that affects millions of people and they can do it in secret, I can't believe you have those kinds of rules.

The fact is, that is the way the Senate operates. Suffice it to say it is getting worse. A few days ago, for example, Chief Justice Roberts said that the number of vacancies on our courts is creating a judicial emergency. Those are the words of Chief Justice Roberts.

At least 19 Federal judges have been approved by the Senate Judiciary Committee unanimously or near unanimously and never got a vote on the floor of the Senate. Not one Senator has publicly taken responsibility for worsening the judicial crisis that Chief Justice Roberts has been decrying over the last few days. Think about that. The Chief Justice of the United States during the Christmas holidays included in his annual report on the Judiciary that the delay in confirming federal judges is creating an emergency in the judicial system.

Chief Justice Roberts, in my view, is correct. I think we do have an emergency. We have been trying to get several judges in the State of Oregon approved, Senator Merkley and I have been working to get this done. But these nominees and others have been blocked and no Member of the Senate will publicly take responsibility for worsening this crisis that Chief Justice Roberts is appropriately so concerned about.

We have tried in the past with legislation to end secret holds. We actually got a law passed at one time to get rid of secret holds. We have tried with pledges from the leadership of both political parties. In every instance, the defenders of secrecy have found their way around the requirements and, in my view, the public interest.

I will make two points and then I want to allow Senator McCaskill to have a chance to address this issue. There are two points with respect to why this effort to end secret holds would be different. The first is that every hold here in the Senate, after the passage of this bipartisan resolution, would have a public owner. Every single hold would have a public owner. Second, there would be consequences. In the past, there have not been consequences for the individual who would object anonymously. In fact, the individual who would object would usually send someone else out to do their objecting for them and there would be complete anonymity for, essentially, all concerned because the person who would be objecting would be in effect saying this is not my doing, I am doing it for somebody else.

The heart of this bipartisan compromise is to make sure that every hold has a public owner and there would be consequences. There may be a Senator around here who becomes known as ``Senator Obstruction.'' Senator Obstruction is the one who is trying to block public business. Let him explain it to the American people.

I will have more to say about it in a little bit, and there is the possibility of other colleagues coming to speak. But Senator McCaskill has brought the kind of energy and passion to this that has made it possible for us to, as I say, be on the cusp of finally forcing, here in the Senate, public business to be done in public. I thank her for all her help and will allow her to take the time. She said she thought she might speak for around 10 minutes. Senator Klobuchar, who has also been a great and passionate advocate of open government, will also speak, and for colleagues who have an interest we have 30 minutes of time.

I say to Senator McCaskill, with appreciation for all she has done, the time is hers.

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Mr. WYDEN. Mr. President, I do not see any of our colleagues who want to speak on the bipartisan efforts to end secret holds, so let me make a couple of comments in wrapping up.

The first is, Senator Grassley and I and others who have been at this for so long have been willing in the past to just put a statement in the Congressional Record when, in the handful of instances, we thought it was important to block a particular piece of legislation or a nomination. We felt it was important to be publicly accountable.

All we are asking is that principle of openness, transparency, and government in the sunshine apply to all Members of the Senate.

The fact is, secrecy has real consequences. I mentioned the fact that Chief Justice Roberts has been so concerned about the judicial emergency he has seen develop in the court system. I saw during the lameduck session, on a bipartisan bill Senator Cornyn and I spent many months on to combat sex trafficking, the consequences of a secret hold. When our bill passed the Senate, it went over to the House of Representatives, was passed in the House, and then came back to the Senate and was blocked secretly. And this was a bipartisan bill to allow us to strengthen the tools law enforcement would have in order to fight sex trafficking, to provide urgently needed shelters to sex trafficking victims. A bipartisan bill Senator Cornyn and I spent many months on did not become law during the lameduck session because of a secret hold.

A lot of Senators have seen exactly these kinds of problems with judges and U.S. attorney candidates. We had both from my home State, two judges who couldn't be considered because of a hold and we could not identify who was objecting, the same with the U.S. attorney nominee. These are the real consequences of secret holds.

The big winners in these secret holds are the lobbyists. The lobbyists benefit tremendously from secret holds. Practically every Senator has received requests from a lobbyist asking if the Senator would put a secret hold on a bill or a nomination in order to kill it without getting any public debate and without the lobbyist's fingerprints appearing anywhere. If you can get a Senator to go out and put an anonymous hold on a bill, you have then hit the lobbyist jackpot. No lobbyist can win more significantly than by getting a Senator to secretly object because the Senator is protected by the cloak of anonymity, but so is the lobbyist. With a secret hold, Senators can play both sides of the street. They can give a lobbyist a victory for their clients without alienating potential or future clients.

Given the number of instances where I have heard of lobbyists asking for secret holds, I wish to say that those who oppose our efforts to end secret holds are basically saying we ought to give lobbyists an extra tool, an extension of the tools they already have in order to advocate for their clients and defy public accountability.

We passed stricter ethics requirements with respect to lobbyists. But it looks to me to be the height of hypocrisy if the Senate adopts a variety of changes to curtail lobbying, as has been done in the past, and at the same time allows lobbyists to continue to benefit, as so many special interests have, from secret holds.

This is the opportunity, after a decade and a half, for the public to get a fair shake and for the public interest to come first. We have tried this in the past. We have tried this in the past with pledges and by passing a law and each time the supporters of secrecy found ways around it. But I think the public has caught on.

Suffice to say, there are going to be plenty of differences between Democrats and Republicans with respect to how to reform the rules of the Senate. What I think has come to light is, it doesn't pass the smell test to keep arguing that Senate business ought to be done in secret. The American people don't buy that anymore. They think this ought to be an open institution, a place where every Senator is held accountable.

This time it is going to be different. There are going to be public owners of any hold. There are going to be consequences for any Senator who tries to block a bill or a nomination in secret. This is going to be an important vote when we come back, a very important vote, and finally one that will require that public business in the Senate be done in public.

I yield the floor.

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