Sunday, March 6, 2016

The Gold Standard For Gridlock: "Senatorial Holds"

I have this vision of a cartoon with a giant Rube Goldberg-like machine with lots of valves and spinning wheels, etc. labeled "Government." Standing next to this giant machine is a tiny little figure with a devils cap and the back of his shirt is marked Senator. He has a long pitchfork in his hand and is about to stick it into one of the spinning wheels. The caption reads "Senator working."

Seriously, if one wanted to design a mechanism to stop the wheels of government, there could be no better tool than the infamous "Senatorial Hold." And, it gets better (or worse, depending on your perspective) -- there are "regular holds"; "secret holds"; "tag-team holds"; "multiple holds"; and more I'm sure.

The concept is really simple -- any one of the 100 Senators in the U.S. Senate can place a "hold" on a piece of legislation moving through the body -- the effect is that the legislation is stopped dead in its tracks. The Washington Post in a 2010 opinion piece described the secret hold this way: "OF ALL THE maddening practices that clog the arteries of the national legislature, the most infuriating may be the Senate institution known as the 'secret hold'. . .a single senator can stop action -- on a piece of legislation or a pending nomination -- by placing a 'hold.' No reason needs to be given, though generally one is, often having nothing to do with the merits of the underlying issue."

Certainly, the Constitutional Founders did not envision this tool to gum up the works of democracy. Had the concept been a part of the original Constitution discussion and papers, we would likely still be under British rule. The Senate, derived from the senatus, Latin for the "council of elders", the august body intended to be the wise statesmen; sometimes called the "worlds greatest deliberative body." Well, perhaps once upon a time in a land far away; but, fast forward to 2016 where political polarization is at an all time high -- where deceit, dishonesty, inflammatory rhetoric and devious manipulation are commonplace. Now, hand these "wise, elderly statesmen" the tool, known as the "hold" and imagine the consequences.

Ironically, the Senate hold originally was designed to speed up the business of the Senate. The theory was that if the Senate Majority Leader knew in advance of a Senator's intent, they could better schdule the business of the Senate if they were aware that a Senator(s) were going to object to an item (e.g. legislation, appointment, etc.). Also, as a courtesy to a Senator having a concern with an item, it would allow them additional time to review the matter.

Ultimately, the decision to honor a Hold request, and for how long, rests with the Majority Leader. However, Holds, like filibusters, can be defeated through a successful cloture motion requiring 60 votes (supermajority of 3/5). If the leadership brings up measures despite holds, everything is delayed due to the need for cloture votes. Thus, as with the filibuster (which has now become commonplace) a minority party can use these tactics to frustrate and delay Senate business and circumvent the the axiom of "majority rules" which most of us learned in kindergarten.

As is discussed in research and articles regarding the Hold process, the general public does not tend to know or pay much attention to the procedure, but scholars, journalists, political scientists, and elected politicians know it well. It's interesting that you don't hear a lot of public discussion of this incredibly disruptive mechanism that undermines the Constitution, democracy itself and the concept of majority rule.

You hear volumes about government gridlock, delays, and dysfunction; but, hardly a word about Senatorial Holds. You hear politicians bemoaning the fact that government is broken and promising to fix it and work toward bipartisan solutions. For sure, at least five of the six remaining Presidential contenders know very well about the Senatorial Hold process and how destructive it is to the democratic process -- four of them are or have been Senators and one was a House member who certainly knows how things get bottled up in the Senate. Donald Trump, not being a Washington insider, may not understand or know the process, but would quickly learn that deals in the U.S. Senate aren't like deals in the private sector.

So, you ask: Why doesn't someone propose fixing it? It's not a law. It's not a rule. It's simply an informal process in the U.S. Senate that by all rights seems to be illegal by violating Constitutional expectations. Why isn’t the public outraged? Why don’t responsible Senators expose this practice and propose solutions. Why doesn’t the President ever talk about it? He was a Senator. He’s not running for office – now would be a good time.

Well the public isn’t outraged because they generally don’t know about it. And, the responsible political leaders don’t talk about it much because they are constrained by an unwritten political phenomenon known as power and the idiom: “whose ox is being gored.”

Simply put – the Senatorial Hold, like the filibuster, can be very advantageous to either party in advancing political agendas depending on who has the majority power or control in the Senate, the House or the Presidency. It essentially gives any one Senator, no matter what their party, enormous power to block, stall, or frustrate any legislative matter – hardly a Constitutionally authorized procedure.

To be fair, there have been quite a few modest, yet complicated, attempts to put some constraints on the process. Way back in 1983, there was actually a Senate appointed study group that recommended that the process be abolished. [See reference #5 below]. That was when there was actually a bit of decorum in the esteemed body.

In 2007, President George W. Bush signed into law the Honest Leadership and Open Government Act (S. 1). Section 512 of Title V of the law (P.L. 110-81) specifically dealt with the issue of secret holds. While it sounds good, Section 512 is neither a Senate rules change nor a standing order of the Senate, and merely specifies the exact steps for making an anonymous hold public. It is generally recognized as not being effective in ending secret holds.

In 2010, Senator Claire McCaskill as well as Senators Sheldon Whitehouse, Mark Warner, and other Members, joined the Senators Wyden and Grassley in an effort to end secret holds. It basically failed and other attempts in 2011 similarly resulted in Senators retaining largely the same power to anonymously stall action.

Frankly, most of the proposed constraints are feeble and really do not undermine the destructive nature of the procedure. So what began as an informal courtesy to Senators in the late 1950s under the majority leadership of Lyndon B. Johnson, as a way for Senators to make routine requests regarding the Senate’s schedule, has turned into a potent extra-parliamentary practice.

Washington gridlock and the resulting public displeasure with the broken system has its roots in the Senatorial Hold process. The process must be radically changed or eliminated if gridlock is going to be addressed. The result is severe, the public is denied its right to see the policies of an elected President – Democrat, Republican or Independent – carried out on a level playing field in accordance with the Constitution. It’s unconstitutional in that it provides an extreme grant of power to any individual Senator, far beyond anything envisioned by the Founders or included in the Constitution.

2. “Holds” in the Senate, Congressional Research Service, March 19, 2015
3. Senate Holds, from Wikipedia
4. Senate Holds, from Open Congress

5. Proposals to Reform “Holds” in the Senate, CRS Report RL31685, August 31, 2011

Gridlock with a capital "G"

It’s hard to believe that every U.S. Representative & Senator doesn’t know the reason that there is gridlock in Washington, DC. They also know how to fix it. They caused it with silly rules and procedures that don’t make sense and undermine the basic tenets of democracy and the constitution.

The filibuster rules in the Senate and the “Hastert rule” in the House are the principal reasons that very little gets done in the nation’s capitol. Now add gerrymandering; out of control campaign financing (i.e. Citizens United); unrelated "riders" and you have the complete recipe for Gridlock with a capital “G”.

And it’s sad to know that it could all be fixed in a New York minute. All it takes is political will. But notice I haven’t said the key words yet — Democrats, Republicans or the President — they’re all responsible to some degree. It just depends on whose in power at the time.

They all talk about the gridlock in Washington and need to compromise and bipartisanship; but, they know they have purposefully inserted the mechanisms in the system that are designed to frustrate compromise and gum up the political process envisioned by the Founders.

So as the electorate and general public grows more and more weary of the D.C. shenanigans is it any wonder they are gravitating toward the likes of some of the outlandish options available in the current crop of 2016 Presidential candidates.

We’ll get into all the gory details; but this is the opening salvo.

·        General Public: The general public needs to become more educated about these arcane practices and how they totally undercut their choices at the ballot box to the point of making them nearly useless.
·        Interest Groups: Responsible public interest groups need to assist in informing their members and designing campaigns to overturn these irresponsible, perverted means to undermine democracy.
·        News Media: The media and pundits need to help in this educational process by emphasizing at every occasion the connections to these obstructionist tools.
·        Elected Statesmen: The few responsible, statesman-like elected officials need to work tirelessly to expose and tear down these barriers to effective government.
·        POTUS: And, finally, the President must use the bully pulpit to speak out against these contrived obstacles and let the public know how their will is being shutdown.