Mimi Marziani and Diana Lee presented this testimony before the U.S. Senate Committee on Rules and Administration.
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Mimi Marziani & Diana Lee
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. 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, most agree that the practice was not routinized until the 1970s. 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, 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. 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. 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. 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. 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; in March, Senator Jim Bunning submitted holds on all pending executive branch nominees. 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).
These anecdotes conform to the available empirical evidence. Currently, 147 nominees are languishing before committees. 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. 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.
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. 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.
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” 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 and by sections of the Federalist Papers. 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.”
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. 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.
- 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. 
- 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.
- 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.
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. 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.” The result is what we have seen in recent years – a seemingly endless rise in holds and filibusters.
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. Senators have also repeatedly sought to place time limit on holds. 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; announcements from Senate leaders that they would refuse to acknowledge anonymous holds; and a 2007 policy requiring that a senator’s name and reason for placing the hold be publically recorded. 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. 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.
 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.
 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.
 See Gregory Koger, Filibustering, A Political History of Obstruction in the House and Senate, 174 (2010).
 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).
 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).
 Not surprisingly, most modern filibusters begin with a hold request. See Koger, supra n. 3, at 180-86.
 See Smith & Flathman, supra n. 5, at 353.
 See Evans & Lipinski, supra n. 4, at 4.
 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.
 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.
 See Jonathan Karl, Sen. Bunning Agrees to Allow Vote on Unemployment Extension Bill, A.B.C., Mar. 2, 2010,
 See Rushing, supra n. 9.
 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).
 United States Senate, Executive Calendar 3-14, http://www.senate.gov/legislative/LIS/executive_calendar/xcalv.pdf (last visited June 22, 2010).
 United States Courts, Judicial Emergencies, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/JudicialEmergencies.aspx (last visited June 22, 2010).
 You Really Got A Hold On Me, Nat’l Public Radio, June 2, 2010, http://www.npr.org/templates/story/story.php?storyId=126528338.
 Alliance for Justice, Judicial Selection Snapshot 2 (2010), http://www.afj.org/check-the-facts/nominees/judicial-selection-snapshot.pdf.
 Const. art II, § 2.
 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.”).
 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.”).
 Edmond v. United States, 520 U.S. 651, 659-60 (1997).
 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.
 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.
 Supra n. 10.
 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.
 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.
 Koger, supra n. 3, at 174.
 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.
 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.
 Cong. Research Service, supra n. 4, at 4-5.
 Id. at 7-8.
 Id. at 6.
 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.
 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.