The Rarely-Told "Hold"

This New York Times story today tells us that Sen. Ron Wyden (D-OR) intends to block Dubya’s nomination of John Rizzo as the CIA’s top lawyer; Rizzo is currently the agency’s interim general council. Wyden said that he was “troubled” that Rizzo “did not object to a 2002 memo authorizing interrogation techniques that stop just short of inflicting pain equal to that accompanying organ failure or even death.”

Hooray for sanity for a change (and kudos to Wyden).

Wyden blocked the nomination through a Senatorial procedure known as a “hold,” and as noted here, Wyden has used this effectively before.

When the EPA proposed rules to ensure cleaner gasoline everywhere but in the Pacific Northwest (because the skies are considered too clean to trigger any government regulation – yes, I’m serious, but remember, this was conceived by a Republican executive branch), Wyden identified the danger from refineries producing gasoline with more pollutants, particularly benzene, because they had the flexibility to do so since there was no regulation.

In response, Wyden put a “hold” on the nomination of the EPA’s general counsel, and the EPA ended up delaying implementation of the new “cap and trade” recommendations that would have allowed the flexibility to produce more pollutants until 2011, with the new national maximum arriving 18 months later, according to Wyden’s press release.

To me, this is an example of an effective use of the “hold.” As this New York Times article notes (now behind the wall – aaarrrggghhh!), the hold has a special place in the arcane, “old boy” traditions of the Senate…

Technically, a hold is simply a notice from any senator that he or she intends to object to a move to advance a bill or nomination by unanimous consent -- the Senate way of clearing the decks and avoiding unnecessary votes on consensus matters.

The slang names come from the perceived goal of the objector. For instance, the Mae West version of the Senate hold occurs when the senator behind the objection is open to negotiation, inviting the author to ''come up and see me sometime.'' The chokehold is meant to kill the bill. The rotating hold involves a group of like-minded senators who regularly shift the objection among themselves, making the perpetrator harder to identify.

Donald A. Ritchie, the associate Senate historian, says the modern use of the hold began in the 1950s under the leadership of Senator Lyndon B. Johnson, who increased the use of unanimous consent agreements to bring more order to the Senate. Holds were initially allowed as a courtesy to senators who needed more time to get to the chamber to object in person, read the bill or try to negotiate changes with the sponsor.

But their use has proliferated and intensified to the point where lawmakers employ them not only to lodge substantive objections to legislation, but also to stall nominations and bills routinely in retaliation for other actions or to win concessions. Though leaders can break a hold with a 60-vote majority, they have often been reluctant to do so out of respect for the tradition -- and the chance they might want to impose a hold of their own some day.

I guess the EPA hold by Wyden would be more of the “Mae West” variety, though I’m not sure what category the Rizzo hold falls into.

The article also notes that Wyden is one of those advocating the end of “secret” holds, which I think is a good idea. To get an idea as to why, here is a Think Progress post noting that the bipartisan Open Government Act was killed last May by this type of hold; the perpetrator was later identified as Sen. Jon Kyl of Arizona (R, of course). Kyl did this because Abu Gonzales objected to the act on the grounds that "it could force (the DOJ) to reveal sensitive information."

All by itself, that is reason for every Arizonan to do everything in his or her power to send Kyl packing, though we’re going to be stuck with him for a good while yet, unfortunately.

Here’s more…

Some senators -- remember Jesse Helms? -- revel in their holds and wield them publicly like a blunt instrument. In 2003, Senator Larry E. Craig, Republican of Idaho, openly put holds on 850 Air Force promotions while he demanded cargo planes for the Air National Guard in his state.

Others are more surreptitious. Watchdog groups and some Democratic senators are still trying to identify the Republicans who put a hold this year on a proposal to require senators to file campaign contribution reports electronically.

In reality, even anonymous holds are not completely confidential because cloakroom staff members and party leaders typically either know who placed the holds or they eventually find out. But the names of those who use holds often remain hidden from the public and from many colleagues. Several senators said Wednesday that the new disclosure requirements would improve the culture of the Senate.

''I think it has been a bad practice forever,'' said Senator Arlen Specter, Republican of Pennsylvania. ''I think it will improve things around here if people have to stand up when they oppose legislation. Give a reason and let it come up for a vote.''

…

But Senator Tom Coburn, the conservative Oklahoma Republican known for his frequent holds, said he would not be deterred. He said that if he had a problem with a bill he would see it as his duty to object.

''If I don't agree with it, why am I going to let it go?'' he asked. ''The members think the rule will intimidate people into not holding bills, but it doesn't bother me.''

Personally, I agree with Wyden, though I think Specter is actually right in theory. But if a “hold” is something favored by the likes of Tom Coburn, Jesse Helms and Jon Kyl, then I’d abolish the practice altogether if it meant getting rid of the secret ones, which are never justifiable.