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John Fortier PDF Print E-mail
Democracy on hold
Posted: 04/19/06 12:00 AM [ET]

Americans resist the idea of other countries’ vetoing our foreign policy in a forum like the United Nations, yet the will of the U.S. Senate is regularly frustrated by the opinion of one senator.

The culprit here is the hold, a feared and misunderstood practice that may be addressed by lobbying-reform legislation.

What is a hold? You will not find it in the Senate rules. Essentially, a hold is the interaction between the power of an individual senator to muck up the legislative process and the desire of Senate leaders to have information about which bills will be controversial.

An individual senator wields great power because it is difficult to cut off Senate debate. A senator might filibuster to delay or kill a matter pending before the Senate. To limit this power of debate, the Senate often operates under unanimous-consent time agreements, but here again an individual senator, if he or she feels strongly about a subject, need not consent to the agreement.

With every senator possessing the power to disrupt the Senate’s business, Senate leaders are eager to know which senators have issues with pressing matters. To serve the needs of senators and their leaders, an informal system has developed in which a senator may place a hold on a bill or nominee.

Essentially, this hold is a notification to leadership that the senator may object to a unanimous-consent agreement to debate the subject. Leaders do not publicly reveal this information, and they spend much time bargaining with senators to remove their holds. These holds can range in purpose from the simple and unobjectionable desire to be given some notice before a measure is debated to an outright threat to filibuster a piece of legislation.

The common perception is that Senate leaders do not like holds because they prevent the Senate from acting. But leadership generally likes the idea of holds more than outside reformers do. I was part of a group that hosted a private event for Senate aides who had served every majority leader going back to LBJ. The general consensus at that meeting was that holds were a useful tool to keep leadership informed of legislative pitfalls.

Nonetheless, there are two significant problems.

First, holds know no bounds. Take the case of holds on administration nominees not because of any problem with the nominees themselves but to gain advantage on unrelated legislation. Former Sen. Jesse Helms (R-N.C.) was famous for having placed such holds on the nominees of fellow Republicans Ronald Reagan and George H.W. Bush to extract promises on textiles and other matters.

Second, there is a sense that the hold has become ossified, that it is treated as so sacrosanct by leaders that they will never break one. A majority leader should be able to overcome a hold by calling the bluff of the senator with a hold and overriding the senator with a cloture vote if necessary. But, as it might not be worth the trouble of angering that senator, a hold is almost always honored.

The occasional call for banning holds is not workable, for it would mean changing the rules of debate in the Senate that make it a distinctive body. But the recent Wyden-Grassley amendment to the lobbying-reform bill does represent a positive change. It calls for making public after three days the name of the senator who places a hold. This will not greatly reduce the number of holds, but it might shame senators from placing unreasonable holds and give majority leaders more backbone in overcoming them. A step forward.

Fortier is a research fellow at the American Enterprise Institute.

 
 
 
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