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Testimony

Testimony of Mimi Marziani and Diana Lee Examining the Filibuster

On June 23, 2010 Mimi Marziani and Diana Lee provided the U.S. Senate Committee on Rules and Administration with testimony  examining silent filibusters, holds and the senate confirmation process.

  • Mimi Murray Digby Marziani
  • Diana Lee
Published: August 11, 2010

Mimi Marzi­ani and Diana Lee presen­ted this testi­mony before the U.S. Senate Commit­tee on Rules and Admin­is­tra­tion.

Down­load Testi­mony (pdf).


 

 

Testi­mony of

Mimi Marzi­ani & Diana Lee[1] 

Submit­ted to the

U.S. Senate Commit­tee on Rules & Admin­is­tra­tion

For the Hear­ing Entitled

Examin­ing the Fili­buster:

Silent Fili­busters, Holds and the Senate Confirm­a­tion Process


Mr. Chair­man and members of the commit­tee:

In our previ­ous testi­mony on this topic, the Bren­nan Center has urged the Commit­tee to seek proced­ural reforms that preserve the Senate’s tradi­tion of delib­er­a­tion while curb­ing unprin­cipled obstruc­tion.[2]  To this end, we recog­nize the need for mech­an­isms that protect the rights of a minor­ity of senat­ors who share strongly-held beliefs.  But the prac­tice of “holds” – the informal custom by which a single senator can indef­in­itely and anonym­ously stop legis­la­tion or nomin­a­tions from reach­ing the Senate floor – has no legit­im­ate place in Senate proced­ure. 

Tempor­ary holds can play a minor, but useful role.  They may be reques­ted on a tempor­ary basis for a specified reason – for instance, to accom­mod­ate a senat­or’s travel sched­ule or to give a senator addi­tional time to review a long bill.  In the contem­por­ary Senate, however, holds are too often placed indef­in­itely and wiel­ded as tools for obstruc­tion.  Such holds do noth­ing to foster substant­ive debate; instead, they are used to prevent bills or nomin­ees from ever being publicly discussed.  Even worse, Senate “etiquette” allows these indef­in­ite holds to be placed anonym­ously, thereby shield­ing obstruc­tion­ists from being held account­able for their actions.  As explained below, indef­in­ite and anonym­ous holds dishonor demo­cratic values.       

There has long been bipar­tisan support for address­ing the prac­tice of indef­in­ite holds in general and for abol­ish­ing the “secret hold” in partic­u­lar.  As you continue to assess Senate dysfunc­tion and contem­plate appro­pri­ate remed­ies, these holds should be an obvi­ous start­ing point for compre­hens­ive reform.  

Holds are a Rampant Form of Obstruc­tion in Today’s Senate

The abil­ity of a single senator to privately request that a bill or a nomin­a­tion be indef­in­itely held from proceed­ing to floor debate is a relat­ively new custom.  Although there is some evid­ence that holds were recog­nized as early as 1958,[3] most agree that the prac­tice was not routin­ized until the 1970s.[4]  Holds developed in tandem with an increased reli­ance on complex unan­im­ous consent agree­ments to struc­ture the Senate’s day-to-day busi­ness.  Such agree­ments provide one of the few ways that Senate lead­er­ship can pree­mpt­ively limit debate, amend­ments and motions when a meas­ure is considered on the Senate floor, and thus facil­it­ate effi­ciency and predict­ab­il­ity.  In the modern era, as constraints upon the Senate’s floor time have become more and more severe,[5] unan­im­ous consent agree­ments have become the primary method for managing the Senate’s calen­dar.

A request for an indef­in­ite hold contains two impli­cit threats: first, it signals a senat­or’s intent to object to a consent agree­ment; and then, to fili­buster the targeted legis­la­tion or nomin­a­tion.[6]  Given the scarcity of floor time in the contem­por­ary Senate, such threats are command­ing – Senate lead­ers, fear­ing retali­at­ory obstruc­tion and the possib­il­ity of grid­lock, are gener­ally unwill­ing to disreg­ard them.[7]  As any senator can place a hold, this prac­tice gives indi­vidual senat­ors consid­er­able power.  Often, senat­ors use this tactic to gain bargain­ing lever­age over other senat­ors or over members of the Exec­ut­ive branch. 

To place a hold, a senator sends a letter to her party’s lead­er­ship indic­at­ing her desire to halt progress on a specified bill or nominee.[8]  These requests are seldom made public, so there is no way for the public to monitor how many requests are made, who is respons­ible for the delay, or the reas­ons behind the hold.  Reports leaked to the press and the stag­ger­ing numbers of currently-pending nomin­a­tions make clear, however, that holds are rampant in today’s Senate.  Senator Major­ity Leader Harry Reid, for instance, has repeated voiced his frus­tra­tion with holds; accord­ing to him, there are currently “scores and scores” of them.[9]  Twice this year, two differ­ent senat­ors have been exposed for placing dozens of holds at once – in Febru­ary, Senator Richard Shelby placed a blanket hold on at least 70 pending nomin­ees;[10] in March, Senator Jim Bunning submit­ted holds on all pending exec­ut­ive branch nomin­ees.[11]  Moreover, The Hill recently repor­ted inter­views with two senat­ors who, when asked, were not even able to recall all of their holds (each correc­ted his initial claim after subsequently confirm­ing with his staff).[12]   

These anec­dotes conform to the avail­able empir­ical evid­ence.  Currently, 147 nomin­ees are languish­ing before commit­tees.[13]  The Senate’s Exec­ut­ive Calen­dar shows 77 judi­cial or exec­ut­ive branch nomin­ees who have been approved by their relev­ant commit­tee and are simply wait­ing for a final floor vote.[14]  Accord­ing to the U.S. Courts website, 40 of the pending judi­cial nomin­a­tions consti­tute “emer­gen­cies” due to the number of days the posi­tion has been vacant and the amount of active cases in that juris­dic­tion.[15]   

As of late May, 108 of these nomin­ees had been wait­ing for weeks, and many for months.  This is unpre­ced­en­ted.  At a compar­able point in George W. Bush’s pres­id­ency, for example, only 13 such nomin­ees had been on hold for more than two days.[16]  Simil­arly, as of June 11th, only 37% of Pres­id­ent Obama’s judi­cial nomin­ees had been confirmed.  By this time in their pres­id­en­cies, 56% of George W. Bush’s judi­cial nomin­ees and 67% of Bill Clin­ton’s judi­cial nomin­ees had been confirmed.[17]

Indef­in­ite and Anonym­ous Holds Harm our Demo­cratic Process

Holds have myriad negat­ive effects on our demo­cratic process.  Perhaps most obvi­ously, holds disrupt the nomin­a­tion process direc­ted by the Consti­tu­tion.  Under the Appoint­ments Clause, the Pres­id­ent “shall nomin­ate, and, by and with the Advice and Consent of the Senate, shall appoint”[18] certain public officers, includ­ing high-level exec­ut­ive posi­tions and federal judges.  There is little doubt that this process demands action from both the Pres­id­ent and the Senate – that much is evid­ent from the plain text of the Clause and confirmed by reports from the Consti­tu­tional Conven­tion[19] and by sections of the Feder­al­ist Papers.[20]  As the Supreme Court has explained, “By requir­ing the joint parti­cip­a­tion of the Pres­id­ent and the Senate, the Appoint­ments Clause was designed to ensure public account­ab­il­ity for both the making of a bad appoint­ment and the rejec­tion of a good one.”[21]

When a nomin­a­tion is put on hold indef­in­itely, the Senate may never fulfill its duty to either confirm or reject that appoint­ment.  For instance, after wait­ing in confirm­a­tion limbo for approx­im­ately 15 months, the pres­id­ent’s appoint­ment to the Office of Legal Coun­sel, Dawn Johnsen, finally with­drew her candid­acy.  Ms. Johnsen’s nomin­a­tion had been approved by the relev­ant Senate commit­tee, but reportedly faced seri­ous oppos­i­tion within the cham­ber as a whole.[22]  Instead of making a final decision on her appoint­ment, however, the Senate simply did not act at all.  Not even a cloture vote was cast.  Inac­tion in such circum­stances is contrary to consti­tu­tional expect­a­tions; even worse, it blunts legis­lat­ive account­ab­il­ity.  When faced with outcomes of this sort, the public is left without know­ledge of who deserves their praise or blame.          

Indeed, indef­in­ite holds regu­larly prevent the type of substant­ive delib­er­a­tion that leads to comprom­ise and collab­or­a­tion.  Rather than persuad­ing colleagues about the merits of proposed legis­la­tion or the creden­tials of a certain nominee, a senator can just halt progress on a bill or appoint­ment she finds objec­tion­able.  Senat­ors also frequently use holds to gain lever­age over unre­lated matters, prefer­ring host­age-taking to enga­ging in debate.  Examples of this tactic abound:

  • In March 2009, Senator Robert Menen­dez placed a hold on two crucial envir­on­mental nomin­ees to protest a wholly unre­lated issue – a widely-suppor­ted provi­sion of the omni­bus spend­ing bill to ease rules on travel and imports to Cuba.[23]    
  • When Senator Shelby placed a hold on over 70 nomin­ees earlier this year, he did so to obtain earmarked fund­ing for his home state.  Accord­ing to Senator Shelby, he staged the delays due to “unad­dressed national secur­ity concerns” in Alabama. [24]
  • Senator Jim Bunning put a months-long hold on the appoint­ment of Miriam Sapiro, nomin­ated to be the deputy United States trade repres­ent­at­ive, over a Cana­dian law banning candy-flavored cigar­ettes.  Senator Bunning lifted the hold only after Demo­crats agreed to confirm a member of the Repub­lican party for a posi­tion on the Federal Mari­time Commis­sion.[25]
  • Martha John­son spent nearly a year wait­ing to be confirmed as Admin­is­trator of the General Services Admin­is­tra­tion due to Senator Chris­topher Bond’s hold, a tactic to receive approval for a federal office build­ing in Kansas City.[26]

When these host­age ploys are success­ful, indi­vidual senat­ors bene­fit – some­times at the expense of the greater good.  Such a flawed process rarely yields anything but flawed results. 

Finally, the prac­tice of secret holds shields obstruc­tion­ists from polit­ical account­ab­il­ity, repu­di­at­ing a core demo­cratic value.[27]  With little risk of external sanc­tions, there is little to constrain the use of holds and other dilat­ory devices.  As one polit­ical scient­ist has poin­ted out, after examin­ing the increas­ingly routine use of holds, “[f]or legis­la­tion on which the polit­ical sanc­tions would other­wise be negat­ive, this is a signi­fic­ant change in the calcu­lus of obstruc­tion.”[28]  The result is what we have seen in recent years – a seem­ingly endless rise in holds and fili­busters.[29]       

Holds are a Clear Start­ing Point for Compre­hens­ive Senate Reform

There has long been bipar­tisan support for address­ing indef­in­ite and anonym­ous holds.  Over the years, Senate lead­ers from both parties have repeatedly pledged not to recog­nize indef­in­ite holds or blanket holds that are employed for no reason other than to obstruct.[30]  Senat­ors have also repeatedly sought to place time limit on holds.[31]  Simil­arly, an active effort to end secret holds has exis­ted since 1985 when sixty Senat­ors vowed to end the prac­tice at an informal, bipar­tisan meet­ing.  Anonym­ous holds have persisted, however, despite this and other attempts at reform includ­ing: proposed legis­lat­ive amend­ments;[32] announce­ments from Senate lead­ers that they would refuse to acknow­ledge anonym­ous holds;[33] and a 2007 policy requir­ing that a senat­or’s name and reason for placing the hold be public­ally recor­ded.[34]  Despite strong support, these numer­ous attempts at reform have all lacked enforce­ment mech­an­isms – as a result, they have never made a discern­able differ­ence.

As of June 21, 2010, 67 senat­ors from both parties had signed a peti­tion to abol­ish anonym­ous holds on any legis­la­tion or nomin­a­tion.[35]  We applaud the Commit­tee’s decision to invite the peti­tion’s spon­sor, Senator Claire McCaskill, to testify today.  We urge members of this Commit­tee, Senator McCaskill, and other inter­ested senat­ors to identify an effect­ive enforce­ment mech­an­ism – without it, this over­due reform is unlikely to succeed.   We also hope that this Commit­tee seri­ously considers past efforts to curb the abus­ive use of holds in general – in partic­u­lar, propos­als that impose time limits on all holds or prohibit indef­in­ite holds.  As the Senate has recog­nized for decades, reform­ing holds is a neces­sary first step in creat­ing a Senate that has the abil­ity to legis­late effect­ively. 

*********************

It is clear that abuse of Senate proced­ures is weak­en­ing our system of govern­ment.  The Bren­nan Center fully supports this Commit­tee’s efforts to closely exam­ine the fili­buster and other tools of obstruc­tion.  As you continue to assess Senate dysfunc­tion and contem­plate appro­pri­ate remed­ies, holds should be an obvi­ous start­ing point for compre­hens­ive reform. 


[1] The Bren­nan Center for Justice at NYU School of Law is a nonpar­tisan law and policy insti­tute that focuses on funda­mental issues of demo­cracy and justice.  Mimi Marzi­ani is coun­sel and Katz Fellow at the Bren­nan Center. Diana Lee is a researcher at the Center and special assist­ant to the Center’s exec­ut­ive director.

[2] The Bren­nan Center has rs of this Commit­tee, Senatee last forty years, submit­ted testi­mony in connec­tion with the Senate’s previ­ous hear­ings examin­ing the fili­buster.  Our first submis­sion, dated April 22, 2010, is avail­able here: http://rules.senate.gov/public/?a=Files.Serve&File_id=a36a886b-dcaa-4290-a8c8-cb737f­b16938.  Our second, dated May 19, 2010, is avail­able here: http://bren­nan.3cdn.net/a042af5f5f7c68c822_lzm6b90hq.pdf

[3] See Gregory Koger, Fili­bus­ter­ing, A Polit­ical History of Obstruc­tion in the House and Senate, 174 (2010).

[4] See Koger, supra n. 3, at 174–76; see also Cong. Research Service, Propos­als to Reform “Holds” in the Senate 2 (2007); C. Lawrence Evans & Daniel Lipin­ski, Holds, Legis­la­tion and the Senate Parties 1 (2005) (presen­ted at the Confer­ence on Senate Parties, Univer­sity of Oxford) (on file with author). 

[5] See Steven S. Smith & Marcus Flath­man, Managing the Senate Floor: Complex Unan­im­ous Consent Agree­ments since the 1950s, 14 Legis. Stud. Quart. 349, 350 (1989).  Accord­ing to Smith, an increased work load coupled with an increased number of amend­ment offered by indi­vidual senat­ors made floor time increas­ingly scarce.  See also Koger, supra n. 3, at 175 (blam­ing “the combin­a­tion of spotty attend­ance and legis­lat­ive activ­ism” for increas­ing scarcity of floor time).  

[6] Not surpris­ingly, most modern fili­busters begin with a hold request.  See Koger, supra n. 3, at 180–86.   

[7] See Smith & Flath­man, supra n. 5, at 353.

[8] See Evans & Lipin­ski, supra n. 4, at 4.

[9] J. Taylor Rush­ing, At Least Three Senat­ors Who Oppose Secret Holds Have Secret Holds of Their Own, The Hill, May 17, 2010, http://thehill.com/home­news/senate/98291-few-sens-admit-to-secret-holds; see also David Weigel, Reid Blasts Repub­lic­ans Over Surgeon General Vote Delay, Other Holds, and Fili­busters, WASH. INDE­PEND­ENT, Oct. 29, 2009, http://wash­ing­toninde­pend­ent.com/65699/reid-blasts-repub­lic­ans-over-surgeon-general-vote-delay-other-holds-and-fili­busters.

[10] See Evan McMor­ris-Santoro, Shelby Blocks All Obama Nomin­a­tions In The Senate Over AL Earmarks, Talk­ing Points Memo, Feb. 4, 2010, http://tpmdc.talk­ing­points­memo.com/2010/02/report-shelby-blocks-all-obama-nomin­a­tions-in-the-senate-over-al-earmarks.php; Scott Wilson & Shail­agh Murray, Sen. Richard Shelby of Alabama Hold­ing Up Obama Nomin­ees for Homestate Pork, WASH. POST, Feb. 6, 2010, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2010/02/05/AR2010020502098.html.

[11] See Jonathan Karl, Sen. Bunning Agrees to Allow Vote on Unem­ploy­ment Exten­sion Bill, A.B.C., Mar. 2, 2010,

 http://blogs.abcnews.com/theworld­newser/2010/03/sen-bunning-block­ing-several-dozen-senate-nomin­a­tions.html.

[12] See Rush­ing, supra n. 9.

[13] United States Senate, Nomin­a­tions in Commit­tee (Civil­ian), http://www.senate.gov/pagelay­out/legis­lat­ive/one_item_and_teas­ers/nom_cmtec.htm (last visited June 22, 2010).

[14] United States Senate, Exec­ut­ive Calen­dar 3–14, http://www.senate.gov/legis­lat­ive/LIS/exec­ut­ive_calen­dar/xcalv.pdf (last visited June 22, 2010).

[15] United States Courts, Judi­cial Emer­gen­cies, http://www.uscourts.gov/Judges­And­Judge­ships/Judi­cial­Va­can­cies/Judi­cialE­mer­gen­cies.aspx (last visited June 22, 2010).

[16] You Really Got A Hold On Me, Nat’l Public Radio, June 2, 2010, http://www.npr.org/templates/story/story.php?storyId=126528338.

[17] Alli­ance for Justice, Judi­cial Selec­tion Snap­shot 2 (2010), http://www.afj.org/check-the-facts/nomin­ees/judi­cial-selec­tion-snap­shot.pdf.

[18] Const. art II, § 2.

[19] See James E. Gauch, The Inten­ded Role of the Senate in Supreme Court Appoint­ments, 56 U. Chicago L. Rev. 337, 341 (1989) (chron­ic­ling histor­ical record of Appoint­ments Clause, conclud­ing that “if we are to achieve the ends the Framers desired, the Senate must play an active role . . .”); see also Lee Renzin, Advice, Consent, and Senate Inac­tion – Is Judi­cial Resol­u­tion Possible?, 73 N.Y.U. Law Rev. 1739, 1752–56 (1998) (“Records of the consti­tu­tional debates reveal that the Framers, after lengthy discus­sions, settled on a judi­cial selec­tion process that would involve both the Senate and the Pres­id­ent.”).

[20] See The Feder­al­ist No. 76 (Alex­an­der Hamilton) (Barnes & Noble ed., 2006) (“To what purpose then require the co-oper­a­tion of the Senate?  I answer, that the neces­sity of their concur­rence would have a power­ful, though, in general, a silent oper­a­tion.  It would be an excel­lent check upon a spirit of favor­it­ism in the Pres­id­ent, and would tend greatly to prevent the appoint­ment of unfit char­ac­ters from State preju­dice, from family connec­tion, from personal attach­ment, or from a view to popular­ity.  In addi­tion to this, it would be an effic­a­cious source of stabil­ity in the admin­is­tra­tion.”); The Feder­al­ist No. 77 (Alex­an­der Hamilton) (Barnes & Noble ed., 2006) (“It has been mentioned as one of the advant­ages to be expec­ted from the co-oper­a­tion of the Senate, in the busi­ness of appoint­ments, that it would contrib­ute to the stabil­ity of the admin­is­tra­tion.  The consent of that body would be neces­sary to displace as well as to appoint.”).

[21] Edmond v. United States, 520 U.S. 651, 659–60 (1997). 

[22] See Charlie Savage, Obama Nominee to Legal Office With­draws, N.Y. Times, Apr. 9, 2010,  http://www.nytimes.com/2010/04/10/us/polit­ics/10johnsen.html?ref=polit­ics.

[23] Juliet Eilperin, Nomin­a­tions on Hold For 2 Top Science Posts, Wash. Post., Mar. 3, 2009; Shail­agh Murray & Karen DeYoung, Momentum Grows for Relax­ing Cuba Policy, Wash. Post., Mar. 30, 2009, http://www.wash­ing­ton­post.com/wp-dyn/content/article/2009/03/29/AR2009032902460.html.  

[24] Supra n. 10.

[25] Helene Cooper, Legis­lat­ive Limbo Strands Many of Obama’s Nomin­ees, N.Y. Times, Dec. 27, 2009, http://www.nytimes.com/2009/12/28/us/polit­ics/28nom­in­ees.html.

[26] Id.

[27] See Testi­mony of Bren­nan Center for Justice submit­ted to the U.S. Senate Commit­tee on Rules & Admin­is­tra­tion 3–4 (April 22, 2010), http://rules.senate.gov/public/?a=Files.Serve&File_id=a36a886b-dcaa-4290-a8c8-cb737f­b16938.

[28] Koger, supra n. 3, at 174.

[29] As the Bren­nan Center has noted in past testi­mony, the frequency of fili­busters has spiked in recent years.  See Testi­mony of Bren­nan Center for Justice submit­ted to the U.S. Senate Commit­tee on Rules & Admin­is­tra­tion 1–2 (May 19, 2010), http://bren­nan.3cdn.net/a042af5f5f7c68c822_lzm6b90hq.pdf.

[30] In 1973, for example, the Senate Demo­cratic Policy Commit­tee pledged to honor holds for no longer than three days. In 1997, then-Major­ity Leader Trent Lott insti­tuted uniform proced­ures for holds, aimed to decrease obstruc­tion tactics.  Indeed, in 1982, the Senate even convened a bipar­tisan Study Group on Senate Prac­tices and Proced­ures that recom­men­ded abol­ish­ing holds alto­gether.  

[31] Cong. Research Service, supra n. 4, at 4–5.

[32] Id. at 7–8.

[33] Id. at 6.

[34] Honest Lead­er­ship and Open Govern­ment Act, S. 1, 110th Cong. § 512 (2007), avail­able at http://frwebg­ate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s1enr.txt.pdf.

[35] Michael O’Brien, McCaskill Says She Has Votes to End Senate Prac­tice of Secret Holds, The Hill, June 19, 2010, http://thehill.com/blogs/blog-brief­ing-room/news/104293-mccaskill-says-she-has-votes-to-end-senate-prac­tice-of-secret-holds.