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McCaskill Leads the Charge Against ‘Secret Holds.’ Will Her Bill Make a Difference?

This weekend, Sen. Claire McCaskill (D-Mo.) announced that she has enough votes and support to put an end to secret holds -- an individual senator’s ability

Tom Mohamed
Last updated: Jul 31, 2020 | Jun 21, 2010

This weekend, Sen. Claire McCaskill (D-Mo.) announced that she has enough votes and support to put an end to “secret holds” — an individual senator’s ability to anonymously delay nominees or legislation:

McCaskill, a first-term Democrat, appears to have persuaded enough of her colleagues to back her effort to take the “secret” out of the Senate’s long-time practice of secret holds.

If her bill gets to the floor, which appears more likely since every Democrat supports it — plus enough Republicans to grease passage — no senator would be able to place a hold on a nomination or a piece of legislation without leaving fingerprints.

McCaskill, who has been pushing the issue for weeks, was pleased Thursday but cautioned that it was still too early to start tossing confetti.

On the main, McCaskill’s legislation would take the “secret” out of secret holds, forcing senators to identify themselves and their reasons if they want to delay Senate action on nominees or legislation. This should be welcome news to those eager for Senate reform. Beginning with the fight over the stimulus package, liberals have been pushing for some kind of reform to the Senate, whose rules have frustrated every aspect of liberal’s agenda. With the filibuster in particular, Republicans and conservative Democrats have forced liberals to sacrifice billions from the stimulus package, a public option from health care reform and, in all likelihood, cap-and-trade from a climate bill.

The secret hold hasn’t been as high profile as the filibuster, but to liberals, it has had an equally pernicious effect on governance. Widespread hold abuse has left the Obama administration pitifully understaffed, as Republicans refuse to let nominees move to Senate confirmation. And that’s to say nothing of seats on the federal bench kept fallow by Republican obstructionism.

I have no idea if McCaskill’s hold legislation will make it through the Senate; senators are very reluctant to give up their power, and this would diminish the ways in which individual senators can impose their preferences on the entire chamber. And of the possible avenues for reforming the hold, this isn’t my first choice. Like Jonathan Bernstein (of the fantastic Plain Blog About Politics), I’m not convinced that secrecy is the problem with the hold. After all, senators are also responsible for advancing parochial interests, and in doing so, the secret hold can be a useful tool. Rather, the problem is that there are too many *holds. *Obstructionist senators are abusing Senate norms, and it’s not clear that McCaskill’s bill will address that core dilemma. The solution — as Bernstein details — is for the Democrats to play hardball and “be willing to force cloture votes on a motion to proceed despite partisan holds.” Here’s Bernstein with a more detailed explanation:

Rather than make Senators explain themselves and have the Majority Leader judge which holds are legitimate and which are not, the Democrats should play hardball: they should let the Republicans know that unless the total number of holds on nominations shrinks dramatically, the Dems will start calling nominations up anyway, hold or not, and force the GOP to find 41 votes against considering them.

The goal of reform should be to maintain the usefulness of the rule or norm in question, while preventing abuse. By simply ignoring holds unless they are pared down significantly, Democrats could maintain the rule while reinforcing Senate norms and pushing against Republican abuse. It’s not the most satisfying solution, but it might be the most effective one.

Tom Mohamed | I understand and respect the confidence my clients put in me as a Colorado native and seasoned real estate professional, and I strive to meet their standards every day. For over 11 years, I have been a top producer. Prior to joining the real estate industry, I served in the US Army Infantry, including several tours in Iraq and Kuwait. These experiences taught me the discipline needed to create Colorado's most powerful real estate team.


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