Secret holds, which began innocently enough, have become a secretive partisan bludgeon aimed at thwarting the democratic process. Initially, holds were merely a courtesy to senators unable to come to the floor to debate pending matters, or to allow senators more time to read a bill. Today they are the regular order of business, used as a tactical weapon by senators to conceal their role in blocking legislation, resulting in gridlock with no accountability. In 2007, Congress attempted to curb this pernicious practice by passing the Honest Leadership and Open Government Act (HLOGA).
Supporters of the HLOGA hailed it as landmark ethics and transparency legislation, and in many ways it was. Section 512 sought to force senators to self-disclose when they were "intending to object to a proceeding" by noting their objections on the Senate calendar next to their names. While the HLOGA did not end the use of secret holds, it shone light on the practice by letting the public know who was responsible for blocking action on nominees or legislation. But with no enforcement mechanism, section 512 has had little impact on the practice of secret holds. As of spring 2010, senators had followed the procedures in section 512 only twice, and members of both parties continued to place secret holds. A Washington Post editorial called the practice a "100-member game of Clue in which some unknown senator is holding up action but is unwilling to take the heat doing so publicly or explaining why."
CREW made an unsuccessful effort to force senators to comply with the HLOGA. CREW asked the Senate Ethics Committee to find that senators who employ secret holds have violated Senate rules by engaging in "improper conduct which may reflect upon the Senate." The moribund Ethics Committee refused to act on that request, finding it had no jurisdiction over the matter. Therefore, any meaningful reform of holds must give the Ethics Committee explicit authority to enforce a ban on their use.
Secret holds are a bipartisan problem and require a bipartisan solution. Fortunately, Senators Ron Wyden (D-OR.) and Charles Grassley (R-IA.), longtime advocates for reforming this much abused Senate tradition, have proposed the "Secret Holds Elimination Act," legislation that would force those who use secret holds out of the shadows. The bill would require any senator placing a hold to identify him or herself publicly within 24 hours, and the leadership would only honor holds made in writing and in compliance with the 24 hour rule. As of September 2010, a bipartisan group of 68 senators had signed on to a letter endorsing the proposal, which CREW strongly supports. The Senate should act promptly on this when it reconvenes in 2011, but also must ensure the Ethics Committee has clear authority to enforce the new rule.
It is long past time for the Senate for take responsibility for contributing to public cynicism about government. Ending the use of secret holds, an arcane and undemocratic procedure, is a good place to start.