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A secret hold is a parliamentary procedure within the Standing Rules of the Senate within the United States Senate that allows one or more Senators to prevent a motion from reaching a vote on the Senate floor. Current Senate rules allow the hold to be only temporarily anonymous.

Contents

Origin and intent

Sections 2 and 3 of Rule VII (Morning Business) of the Standing Rules of the Senate outline the procedure for bringing motions to the floor of the Senate. Under these rules, "no motion to proceed to the consideration of any bill...shall be entertained...unless by unanimous consent". In practice, this means that a Senator may privately provide notice to his/her party leadership of intent to object to a motion. At that point, the motion cannot proceed because unanimous consent has not been reached, even though the Senator has not publicly announced his/her intent to object. This allows a Senator to remain anonymous while preventing the motion from going forward.

The original intent of these sections was to protect a Senator's right to be consulted on legislation that affected the Senator's state or that he/she had a great interest in. The ability to place a hold would allow that Senator an opportunity to study the legislation and to reflect on what it means before moving forward with further debate and voting.[1]

Holds, like filibusters, can be defeated through cloture; however, the time required to bring around a cloture vote often allows fewer than 40 senators to block unimportant legislation when the majority is not willing to force the vote.

Controversy

In August 2006, the Federal Funding Accountability and Transparency Act of 2006 was put on secret hold. This bill, intended to encourage transparency within government, was considered by political pundits to be an especially ironic target of a secret hold and much attention was drawn to the bill and to the procedure itself.[2][3] Bloggers and political activists sought to identify the Senator or Senators responsible by process of elimination, by having constituents contact each Senator and requesting a specific on-the-record denial of placing the secret hold. Within 24 hours, 96 Senators had explicitly denied that they had placed the secret hold, leaving only 4 Senators still suspected and under growing public scrutiny as a result.[4] On August 30, a spokesperson for Senator Ted Stevens of Alaska announced that Stevens had placed a hold on the bill.[5] On August 31, 2006, Sen. Byrd also admitted placing a hold on the bill.[6] Ultimately, the bill passed the Senate unanimously.

In April 2007, the practice received media attention again when an anonymous senator placed a hold on the Senate Campaign Disclosure Parity Act, another bill intended to increase transparency in government.[7] The Sunlight Foundation government watchdog group attempted to "ferret out" the senator who placed the hold.[8]

Again in May 2007, an anonymous senator, later discovered to be Sen. Jon Kyl, R-Ariz., placed a secret hold on the OPEN Government Act, S. 849 [9] before the Senate adjourned for Memorial Day recess.[10]

During the 110th Congress, Senator Tom Coburn put holds on a significant number of bills, raising the ire of the leadership and forcing them to package many of the bills with holds into one Omnibus Act (the so-called "Tom-nibus") at the beginning of the 111th Congress. Some Senators have complained that the hold system makes it too easy to block legislation, that the leadership should not honor holds on the floor unless the Senator is personally there to object.

On December 2, 2009, Sen. Bernie Sanders (I-Vt.) placed a hold on the nomination of Ben Bernanke for a second term as chairman of the Federal Reserve. While this wasn't "secret", it caused stirs in the senate and the public.

Attempts to amend this rule

Throughout the history of the Senate, multiple unsuccessful attempts have been made to abolish this practice.[11][12] The practice was successfully banned in 1997, but only temporarily. Majority leader Trent Lott and minority leader Tom Daschle altered the rule so that anyone intending to hold a bill had to notify the bill's sponsor and the chair of the appropriate committee. That year, the result was that opponents of a bill would wait until the bill was before the entire Senate before announcing their opposition, wasting time and ultimately delaying other popularly-supported legislation in the process. The practice was soon re-instituted.[13]

Enacted on September 14, 2007, the "Honest Leadership and Open Government Act of 2007" amended the Senate rules to require public notice of holds within 6 session days.[14]

Loss of anonymity/Attempts to evade

Although a hold is placed anonymously, the identity of the senator placing the hold can quickly become common knowledge. Under traditional dictates of Senate courtesy, the identity of the holder is not made public.[15] However, senators have become increasingly brazen in identifying colleagues who place holds, in all but name.[16]

References

  1. ^ Congressional Record: March 28, 2006
  2. ^ Obama-Coburn Accountability Bill Put on "Secret Hold"
  3. ^ Senator puts 'secret hold' on bill to open federal records
  4. ^ Porkbusters: Who is the Secret Holder?
  5. ^ "Sen. Stevens is 'the secret senator'". 2006-08-30. http://www.cnn.com/2006/POLITICS/08/30/secret.senators/. Retrieved 2006-08-31.  
  6. ^ Rebecca Carr. "Byrd admits he placed a hold, now lifts it". Palm Beach Post. http://www.palmbeachpost.com/blogs/content/shared-blogs/washington/washington/entries/2006/08/31/byrd_admits_he.html. Retrieved August 31, 2006.  
  7. ^ Who Placed a Secret Hold on Sunlight? | Sunlight Foundation
  8. ^ Secret Hold Placed on Senate Disclosures - The Caucus - Politics - New York Times Blog
  9. ^ S.849 The Openness Promotes Effectiveness in our National Government Act
  10. ^ Congressional Record: May 24, 2007
  11. ^ Senate Resolution 244 from April 17, 2002
  12. ^ Senate Resolution 216 from August 1, 2003
  13. ^ The Scoop on "Secret Holds": No Rules Apply
  14. ^ Honest Leadership and Open Government Act of 2007, Section 512 "Notice Of Objecting To Proceeding" (Library Of Congress)
  15. ^ See, e.g., Danny Glover, Beltway Blogroll: Confessions Of A Beltway Journalism Insider, National Journal blog, April 19, 2007
  16. ^ The Final Word, National Journal's CongressDaily PM, April 25, 2007 (""We are down to one hold on our [Senate] side. And I know that cad. We're talking to the secretary of Health and Human Services to try to persuade him. And it isn't a her. It's a him. And it's not a Democrat. Want me to keep going? He's not from the Eastern part of the country. He's not from the Western part of the country.")(subscription required)

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