Secret Holds
Mr. President, the Senate Rules Committee held another important hearing today to review yet another example of how the Senate rules are abused. I want to thank Chairman Schumer again for holding these hearings--they have been invaluable…
Mr. President, the Senate Rules Committee held another important hearing today to review yet another example of how the Senate rules are abused. I want to thank Chairman Schumer again for holding these hearings--they have been
invaluable in exploring ways to make the Senate work better for our country.
Over the past few months during this series of hearings, we have discussed and debated example after example of how the filibuster in particular--and the Senate's incapacitating rules in general--too often stand in the way of achieving real progress for the American people.
Today's hearing topic--secret holds and the confirmation process--was just one more example of how manipulation of the rules continues to foster a level of gridlock and obstruction unlike any we have seen before.
Senators Wyden, Grassley, and McCaskill testified at the hearing about their efforts to end the practice of secret holds. I applaud their work and dedication to transparency in government. Their fight to end the practice of secret holds is a worthy one that I wholeheartedly support.
Earlier this year I was proud to sign on to Senator McCaskill's letter to the majority and minority leaders, in which we pledged to no longer place anonymous holds and asked for Senate leadership to end the practice altogether.
At today's hearing, Senator McCaskill said that she has gathered enough support to surpass the 67-vote threshold required to consider and amend the Senate rules. That is no small task, as everyone in the Senate would attest. She should be congratulated for her work, as should all of our colleagues--Democrat and Republican--who have signed on to this effort. This bipartisan effort is proof that we are capable of working together.
But the mere fact that we have to have this conversation, that Senator McCaskill had to work for months for 67 votes to change rules that the Constitution clearly authorizes us to do with a simple majority vote, illustrates that secret holds are just another symptom of a much larger problem.
That problem is the Senate rules themselves.
The current rules--specifically rules V and XXII--effectively deny a majority of the Senate the opportunity to ever change its rules. This is something the drafters of the Constitution never intended.
As I have explained numerous times in committee hearings and here on the floor, a simple majority of the Senate can adopt or amend its rules at the beginning of a new Congress because it is not bound by the rules of the previous Congress.
Many colleagues, as well as constitutional scholars, agree with me. As my esteemed colleague from Utah, Senator Hatch, stated in a National Review article in 2005:
The Senate has been called a `continuing body.' Yet
language reflecting this observation was included in Senate
rules only in 1959. The more important, and much older, sense
in which the Senate is a continuing body is its ongoing
constitutional authority to determine its rules. Rulings by
vice presidents of both parties, sitting as the President of
the Senate, confirm that each Senate may make that decision
for itself, either implicitly by acquiescence or explicitly
by amendment. Both conservative and liberal legal scholars,
including those who see no constitutional problems with the
current filibuster campaign, agree that a simple majority can
change Senate rules at the beginning of a new Congress.
It is through this path--by a majority vote at the beginning of the next Congress--that we can reform the abuse of holds, secret filibusters, and the broken confirmation process. We can end the need for multiple cloture votes on the same matter, and we can instead begin to focus on the important business at hand.
Now, critics will argue that the two-thirds vote requirement for cloture on a rules change is reasonable. They'll say that Senator McCaskill managed to gather 67 Senators, so it must be an achievable threshold.
As I said at today's hearing, I commend Senator McCaskill for her diligence in building support to end secret holds. But I think it is also important to understand that other crucial reform efforts have failed because, inexplicably, it takes the same number of Senators to amend our rules as it takes to amend the U.S. Constitution.
As Senators Wyden and Grassley said in their testimony today, their efforts to end secret holds goes back more than a decade. Indeed, the effect of holds, on both legislation and the confirmation of nominees, is hardly a new problem.
In January 1979, Senator Byrd--then majority leader--proposed changing the Senate rules to limit debate to 30 minutes on a motion to proceed. Doing so would have significantly weakened the power of holds--and thus curbed their abuse.
At the time, Leader Byrd took to the Senate Floor and said that unlimited debate on a motion to proceed, ``makes the majority leader and the majority party the subject of the control and the will of the minority. If I move to take up a matter, then one senator can hold up the Senate for as long as he can stand on his feet.'' Despite the moderate change that Senator Byrd proposed, it did not have the necessary 67 votes to overcome a filibuster.
Efforts to reform the motion to proceed have continued since.
In 1984, a bipartisan study group recommended placing a 2-hour limit on debate of a motion to proceed. That recommendation was ignored.
And in 1993, Congress convened the Joint Committee on the Organization of Congress to determine how it can be a better institution. Senator Pete Domenici, my immediate predecessor, was the co-vice chairman of the committee. At a hearing before the committee, he said, ``If we abolish [the debatable motion to proceed], we have gone a long way to diffusing the validity of holds, because a hold is predicated on the fact that you can't get [a bill] up without a filibuster.''
The final report of that joint committee stated: ``There was significant agreement that the motion to proceed to a bill should not be debatable, or that debate on the motion should be limited to 2 hours.'' Despite the recommendation, nothing came of it.
And here we are again today--31 years after Senator Byrd tried to institute a reform that members of both parties have agreed is necessary.
Talking about change, and reform, does not solve the problem. We can hold hearings, convene bipartisan committees, and study the problem to death. But until we agree that the Constitution provides the right for each Senate to adopt its rules of proceedings by a simple majority vote, there will be no real reform.
Recognizing our constitutional right to change Senate rules by a majority will not only allow reform, but it will help prevent abuse. Members are less likely to abuse a rule if they know that it can be changed by a majority in the next Congress. Conversely, if they think it takes 67 votes to change the rule, there is no disincentive against abuse.
I look forward to future hearings in the Rules Committee and exploring ways that we can bring needed reform to the Senate at the beginning of the 112th Congress.
I ask unanimous consent that an April 19 Roll Call article titled, ``In Senate, Motion to Proceed' Should be Non-Debatable'' and Senator Hatch's 2005 article from the National Review Online be printed in the Record.