05 February 2010

Reform Senate Holds

For all the frustration that exists around the filibuster in the U.S. Senate, there is another Senate rule that is less well known, less sacred and more pernicious. This is the "hold" that any Senator can place on any Presidential nominee "at any time for any reason . . . anonymously," as Sen. Richard Shelby (R-Ala.) has "on more than 70 Obama administration nominees because of home state concerns with the future of the Air Force's tanker fleet and disagreements with the White House over funding for anti-terrorism programs." The holds are not simply of nominees who have authority over the dispute in question.

A hold can be overriden, but the notion that a single Senator should be able to secretly bring any nomination progress to a halt at any time for any reason, is a ridiculous hecklers veto. Senators ought to be able to bring about bipartisan reform.

* First, there is no reason that any hold should be permitted to be made anonymously. Both houses of Congress belong to the People of the United States and we have a reason to expect that they be run openly. The American people deserve to know who is holding up nominations.

* Second, someone placing a hold should be required to publicly state a reason for the hold related in some way to the nominee. The rule shouldn't require proof of that reason when the hold is made, but debate on Senate action to lift that hold should be limited to discussion of the reason asserted. Senators who embarass the Senate by bending these rules will sacrifice their collegial capital with their fellow Senators.

* Third, a single Senator should not have the power to put a hold on any nominee who does not exclusive serve that Senator's state. While the privilege of a Senator to stop a nominee (such as a District Court judge) who serves in a Senator's home state is long standing, it should not be easier to stop a national government nominee than it is to make a motion on the floor of the Senate, which requires both a mover and a second. A Senator who can't find even a single ally shouldn't be entitled to dictate the agenda of the entire Senate.

* Fourth, holds on nominees who do not exclusively serve a Senator's home state should not be permitted for nominees who have not yet received a vote approving their nomination from a committee of the U.S. Senate. The whole point of the committee system is to allow the Senate to screen the massive parade of bills, treaties and nominations it encounters before the entire body has to consider them. Until then, objections to nominees can and should be raised at the appropriate committee's confirmation hearing and considered by people on that committee.

This also gives the other Senators and the public a meaningful chance to assess, from the reputation of the Senators placing the hold, the reason given for the hold, and the vote the nominee received in committee, the extent to which there is any merit in a hold request. A hold placed against a unanimously approved nominee, by two Senators with a record of abusing the hold process, for a reason with only a slim connection to a nominee wouldn't be worth very much. A hold placed against a narrowly approved nominee, by multiple Senators with a record for not abusing the hold process, because some new concern has arisen over a candidate that requires further investigation, in contrast may have a great deal of weight.

* Fifth, the Rules committee should be permitted to put the question of lifting a hold and sending the nominee's nomination to the Senate floor at short notice by a simple majority vote of the Rules committee, with debate on that issue limited to those found in the hold request itself.

Consider how that would play out in a case like that of Martha N. Johnson.

[She] was confirmed Thursday as head of the General Services Administration, nearly 10 months after Obama first put her name forward.

Although unanimously approved by the Senate Homeland Security Committee in early 2009, Johnson's nomination was held up by Sen. Christopher S. Bond (R-Mo.), who wanted a $175 million federal building project approved for his state.

Gibbs noted that 88 senators voted to send her nomination to the Senate floor for final consideration once Bond lifted his hold. Her nomination was endorsed there by a large margin.

There is a place in the nomination process for allowing a Senator to flag a nominee as controversial or problematic. There should not be a place in Senate rules for simply gumming up debate without a reason.

A Nuanced Approach To the Filibuster

In the same vein, while the Senate may appropriately want to require sixty votes to end germane debate on a bill (or a nomination, where debate is simplified by the fact that the Senate has only an up or down vote, not a right to amend the issue before it in any way or propose an alternative), the presiding officer of the Senate should have the power (subject to appeal to the body of a ruling by the usual majority vote involved when the Senate considers an appeal of a parliamentary issue) to unilaterally shut off non-germane debate.

In other words, Senators who want to filibuster should be free to discuss a matter at length on the merits, but should not be prattle on about anything in strident disrepect for the time of their fellow Senators in a blatant attempt to stall the process without any respect for the importance of preserving the deliberative process.

It would also not be inappropriate to limit the time that any one Senator may speak to one bill to eight hours on the floor. If a minority in the Senate wants and a majority can not secure sixty votes to end debate, the minority would be entitled to up to about 400 hours of time on the Senate floor to make their case, which might take weeks. But, the tradition that the filbuster protects is the right to deliberate on issues on the merits, not the right to stop a majority of the Senate from considering issues simply because on disagrees with it.

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