< Reforming the Senate's 'Secret Holds'


Friday, February 04, 2011

BOB GARFIELD: This is On the Media. I'm Bob Garfield.

BROOKE GLADSTONE: And I'm Brooke Gladstone. Late last month, the Senate approved some reforms to make it less comfortable for a lone senator to place a secret hold on a piece of impending legislation. The practice enables one anonymous senator to keep a bill from reaching the floor for a vote. Recently, it was used at the very end of the last Congress to kill the popular bipartisan Whistleblower Protection Enhancement Act. That motivated us to launch our ongoing Blow the Whistle Project to draw attention to the practice and identify the senator who killed the bill. Oregon Democrat Ron Wyden, along with Iowa Republican Chuck Grassley, led the effort to reform the secret hold. Wyden says that initially the hold was rarely used. It was a courtesy extended to senators who needed more time to study a bill or return to the District before voting. But that day is long gone.

RON WYDEN: A courtesy morphed over the years into one of the most sweeping powers any legislator has anywhere, I mean, the ability to anonymously block a piece of legislation affecting millions of people or a nomination that can have the same effect is extraordinary. And to be able to do it without some sunlight, I just think is completely unacceptable.

BROOKE GLADSTONE: In 2007, there was something called the Honest Leadership and Open Government Act, which mandated that senators had to go on public record after six days of placing the secret hold. But then the senators got around that by [LAUGHS] something called tag teaming. How I understand that tag teaming works, you need two senators. The first senator anonymously places the hold on the legislation, releases it after five days before his or her name is entered into the record. Then the second senator places the secret hold and after five days also releases it. Then the first senator picks up the hold again, and the process repeats itself indefinitely.

RON WYDEN: You could conceivably, by handing the baton off every five days, have this go on pretty much forever. So Senator Grassley and Senator McCaskill and I believe now we plugged the holes. We were able to ensure in this new version that that notice requirement, where you have to give notice within two days, that it’s triggered from the moment a senator has objected.

BROOKE GLADSTONE: In other words, the senator who puts the hold on the bill has to reveal him or herself within 48 hours, and if he or she doesn't come forward, it gets attributed to the senator’s party leader, right, or whoever placed it on his behalf.

RON WYDEN: You have got it. There will be a public owner of every hold.

BROOKE GLADSTONE: I don't think you've plugged the hole, Senator, because they can hide behind their party leader.

RON WYDEN: The combination of the shorter disclosure in a requirement and consequences, where one senator is gonna actually have to be a public owner - and we don't think that somebody is gonna want to publicly take responsibility for a hold - is the big difference. The fact today is that nobody is responsible. A particular senator could say, I'm not objecting, I'm just objecting on behalf of someone else. And then you've got two senators who aren't accountable.

BROOKE GLADSTONE: The Whistleblower Protection Enhancement Act was held secretly just a few hours before the end of the 111th Congress. It effectively circumvented the six-day rule. It also would have circumvented the two-day rule.

RON WYDEN: If you get this down to two days, and there’s going to be a public holder of all holds, you have brought some predictability and some certainty into a process that has had none. In fact, I can tell you, this has already dominated discussions [LAUGHS] in both the Democratic Caucus and the Republican Conference, with senators wondering about how they're going to deal with something that for the first time has dramatic change in terms of their, their lives. I can tell you that if the United States Senate ever released its archives of all the secret holds that were placed, over the last decades, you would have to have biographies rewritten, with respect to exactly what the consequences were of those secret holds. BROOKE GLADSTONE: The pressure that is placed on a senator who would put a secret hold on impending legislation now is essentially fear of embarrassment or exposure. If they didn't have any shame, they could go ahead and continue to exercise this extraordinary power that allows them to hide from their constituents.

RON WYDEN: What I can tell you is last year when it finally came to light that a United States senator had 70 holds on bills and nominations and sunlight was brought to it, the senator essentially lifted their hold immediately. So that would be one concrete case of how sunlight makes a difference.

BROOKE GLADSTONE: But it’s really, really hard to unearth the names of people who have placed the secret holds. We've been trying for weeks to get to the bottom of who placed the hold on the Whistleblower Protection Enhancement Act.

RON WYDEN: There is no question about it being a huge challenge, and that’s why, starting 17 years ago, when I was trying to pass a public interest, you know, measure that low-income advocates from all over the country wanted to expand care for community health centers, I vowed, since that bill was held up by a secret hold, that I was gonna get it changed. I believe this is going to produce very substantial changes that will make government more open and more accountable. And I can tell you if this wasn't so consequential, you wouldn't have had the friends of secrecy in the United States Senate fight it for so long, so hard.

BROOKE GLADSTONE: So one last question: Who placed the hold on the Whistleblower Protection Enhancement Act?

RON WYDEN: I still am not clear on who placed the hold on the Whistleblower Protection Act, but I can tell you in the last days of the last session of Congress, two bills that I think were very important, the Whistleblower Protection Act, and Senator Cornyn and I had a very important bill to fight sex trafficking, was also tanked this way, and that’s why I’ve worked so hard to change the process.

BROOKE GLADSTONE: Ron Wyden, thank you very much.

RON WYDEN: Thanks for your interest!

BROOKE GLADSTONE: Ron Wyden is the senior senator from Oregon.