Senator Tommy Tuberville continues to make headlines thanks to his months-long blockade of more than two hundred military nominations and promotions. Similarly, Senator Rand Paul held up dozens of State Department nominations. These attention-grabbing examples, yet again, call into question the rules and procedures that govern Congress’s upper chamber. How is it that one senator has enough power to grind the Senate to a halt? What implications does this have on congressional authority, and what opportunities are there for reform? In this article, John D. Rackey and Dillon J. Clark address these questions through an analysis of a dataset of 109 Senate holds from 2007 to June 2023. In doing so, the authors argue that the ideal reform package would be one that increases the transparency of the hold process while simultaneously banning the ability to hold an issue indefinitely. Through this dual reform, the Senate could become less institutionally gridlocked.
What are Senate Holds?
While the Senate is often bound in arcane procedural knots, Senate holds are relatively straightforward. The Senate often does not operate under strict observance of its rulebook because under those procedures votes on every motion on each piece of pending business—nominations, legislation, even approving the Journal—could stretch out for hours, days, or even weeks. Rather than allowing floor time to be dominated by procedural matters, the Senate typically opts to structure its business through unanimous consent agreements (UCAs). These agreements are negotiated between party leaders to determine the order of business, how much time will be allocated for debate, and what amendments might be in order. UCAs or any unanimous consent request requires that every senator agrees to the request. As the Congressional Research Service (CRS) notes, holds “allow Senators to give notice to their respective party leader that certain measures or matters should not be brought up on the floor” because the senator placing the hold will object to unanimous consent.
Research shows that holds occur for one of five reasons, but generally speaking, they are used to slow the progress of a measure to force proponents to negotiate before the matter may proceed. Similarly, there are five hold types, Senators Tuberville and Paul are using what is known as a blanket hold which impacts “an entire category of business, such as all nominations to a particular agency or department.”
Because holds are an internal mechanism to communicate a senator’s intent to object to unanimous consent, they can be difficult to track. Historically, hold requests could not be tracked in real time because correspondence between senators and party leaders is kept private. Formal procedures to improve hold transparency were established in 2007 and modified in 2011 to require that senators intending to object notify their party leaders in writing and that holds be made public in the Congressional Record two days afterwards.
We assembled a dataset containing 109 holds logged via these procedures from 2007 through June 2023. The majority of holds are placed on nominations rather than legislation. Of the 66 nominations held, 61 were non-military executive branch nominations, Only four holds were placed on military nominations—further underscoring Tuberville’s norm breaking behavior. Moreover, only three of the holds we identified can be characterized as blanket holds.
It should be noted that 70 of the 109 holds had been placed by Senators Grassley and Wyden. This should not be interpreted to mean that they obstruct more often than others. Rather, they have been more diligent about following the rules for public noticing of holds as they are leaders in trying to reform the secretive nature of the practice. An obvious weakness of the existing reporting system is that it is ineffective as there is no enforcement mechanism for senators who fail to announce their holds.
How do we fix it? Increasing transparency and setting time restraints
Reform proposals generally fall into two camps. The first seeks to increase the transparency of the hold process to ensure greater public accountability. Some argue that there is nothing secret about the hold process because holds are meant to serve as negotiation leverage which cannot exist if no one else knows about it. But visibility within the cloistered community of senators hardly constitutes transparency or leads to public accountability.
The second camp of reforms aim to limit the impacts of holds. This usually takes the form of proposals to limit the number of holds an individual senator can place, or time limits on how long a matter can be held. These types of reforms are aimed at curbing the power of blanket holds which can have a significant impact on agency operations. In 1997, Majority Leader Trent Lott attempted to require specificity for holds in order for them to be honored. Others, such as Senator James Exon, suggest there be a requirement that more than one senator sign-on to the objection for it to be honored. Additional proposals have sought to limit the amount of time a hold will be honored ranging anywhere from 24 hours to 60 days.
We argue that the ideal reform package would include mechanisms that increase transparency and ban the ability to hold a matter indefinitely. We suggest amending S. Res. 28 such that the Legislative Clerk be informed of a senator’s intent to object at the same time as the party leader. This way, the Clerk may automatically publicly announce the hold in the Congressional Record after two legislative days unless the hold is lifted. This could help eliminate the lack of enforcement where senators place a hold with their leadership and do not publicly disclose it.
In addition to ending secret holds, banning indefinite holds is also essential. A hold should not be allowed to become a minority—or single senator—veto. Its purpose, as proponents have argued, is to temporarily delay action to further negotiation and support careful examination. Therefore, holds should be regulated so they cannot turn into de facto vetoes. We suggest the reconsideration of a previous recommendation to limit the honoring of holds by all senators to a total of no more than fourteen days.
Holds can be an important tool for senators to help drive legislative consensus and serve as a check on the executive branch. However, anonymous or indefinite holds—especially when it comes to nominations—can have the opposite impact. Presidents have an incentive to circumvent legislative authority by filling vacancies with interim appointees. Senate inaction due to obstruction only facilitates such behavior. The Senate cannot allow objections to unanimous consent to indefinitely stymie consideration of pending business. If it does, it ultimately only diminishes its own authority.
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- Note: This article gives the views of the author, and not the position of USAPP – American Politics and Policy, nor the London School of Economics.
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