Congressional Record: March 8, 2006 (Senate)]
[Page S1872-S1881]
LEGISLATIVE TRANSPARENCY AND ACCOUNTABILITY ACT OF 2006--Continued
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. LOTT. Mr. President, I believe the Senate did clear the Dodd-
Santorum amendment, so the pending issue is the Wyden-Grassley-Inhofe
amendment.
The PRESIDING OFFICER. The amendment has not been submitted so it is
not currently the pending question.
Mr. WYDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Mississippi has the floor.
Mr. LOTT. Mr. President, I believe, then, we would be ready to go
with this amendment.
The PRESIDING OFFICER. The Senator from Oregon is recognized.
Amendment No. 2944
Mr. WYDEN. Mr. President, I propose the Wyden-Grassley-Inhofe
amendment, No. 2944, which is at the desk and ask for its immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Oregon [Mr. Wyden], for himself and Mr.
Grassley, proposes an amendment numbered 2944.
Mr. WYDEN. I ask unanimous consent the reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To establish as a standing order of the Senate a requirement
that a Senator publicly disclose a notice of intent to object to
proceeding to any measure or matter)
At the end of title I, add the following:
SEC. __. REQUIREMENT OF NOTICE OF INTENT TO PROCEED.
(a) In General.--The majority and minority leaders of the
Senate or their designees shall recognize a notice of intent
of a Senator who is a member of their caucus to object to
proceeding to a measure or matter only if the Senator--
(1) submits the notice of intent in writing to the
appropriate leader or their designee; and
(2) within 3 session days after the submission under
paragraph (1), submits for inclusion in the Congressional
Record and in the applicable calendar section described in
subsection (b) the following notice:
``I, Senator __, intend to object to proceeding to __,
dated __.''.
(b) Calendar.--The Secretary of the Senate shall establish
for both the Senate Calendar of Business and the Senate
Executive Calendar a separate section entitled ``Notices of
Intent to Object to Proceeding''. Each section shall include
the name of each Senator filing a notice under subsection
(a)(2), the measure or matter covered by the calendar that
the Senator objects to, and the date the objection was filed.
(c) Removal.--A Senator may have an item with respect to
the Senator removed from a calendar to which it was added
under subsection (b) by submitting for inclusion in the
Congressional Record the following notice:
``I, Senator __, do not object to proceeding to __, dated
__.''.
Mr. WYDEN. Mr. President, if you walked down the Main Streets of this
country and asked people what a hold was in the U.S. Senate, I think it
is fair to say nobody would have any idea what it is you were talking
about. In fact, they might hear the world ``hold,'' and they would
think it was part of the wrestling championships that are going on
across this country right now. But the reason I am on the floor of the
Senate today with my distinguished colleague, Senator Grassley, and
Senator Inhofe, is that the hold in the Senate, which is the ability to
object to a bill or nomination coming before the Senate, is an
extraordinary power that a United States Senator has, and a power that
can be exercised in secret.
At the end of a congressional session, legislation involving vast
sums of money or the very freedoms on which our country relies can die
just because of a secret hold in the Senate. At any point in the
legislative process, an objection can delay or derail an issue to the
point where it can't be effectively considered.
What is particularly unjust about all of this is that it prevents a
Senator from being held accountable. I think Members would be
incredulous to learn this afternoon that the Intelligence
reauthorization bill, a piece of legislation which is vital to our
national security, has now been held up for months as a result of a
secret hold.
I am going to talk a little bit about the consequences of holding up
an Intelligence authorization bill in a moment. But I want to first be
clear on what the Wyden-Grassley-Inhofe amendment would do. It would
force the Senate to do its business in public, and it would bring the
secret holds out of the shadows of the Senate and into the sunshine.
Our bipartisan amendment would make a permanent change to the
procedures of the Senate to require openness and accountability. We
want to emphasize that we are not going to bar Senators from exercising
their power to put a hold on a bill or nomination. All we are saying
is, a Senator who wants that right should also have a responsibility to
the people he or she represents and to the country at large.
Now, to the hold on the Intelligence bill that has been in place for
more than 3 months, I think every Member of the Senate would agree that
authorizing the intelligence programs of this country is a critical
priority for America. Striking the balance between fighting terrorism
ferociously and protecting our civil liberties is one of the most
important functions of this Senate. The bill that is now being held up
as a result of a secret hold, the Intelligence reauthorization bill,
has been
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reviewed by a number of Senate committees. It was reported by the
Intelligence Committee late last September, by the Armed Services
Committee last October, and by the Homeland and Governmental Affairs
Committee last November.
I particularly commend Chairman Roberts who worked with me on a
number of amendments, amendments that I felt strongly about, because
this legislation does ensure that there will be accountability and
oversight in the Intelligence Committee by establishing a strong
inspector general, by requiring that the committees get the documents
they need to perform effective oversight over the intelligence
community, and by making the heads of the key agencies subject to
Senate confirmation.
I think the Senate would particularly want to know if this
legislation, the Intelligence reauthorization bill that is held up by a
secret hold, does not move forward, it will be the first time since the
Senate Select Committee on Intelligence was established in 1978 that
the Senate has failed to act on an Intelligence reauthorization bill.
What we have is a situation where a single, anonymous Senator has
invoked a practice that cannot be found anywhere in the Senate rules
and has lodged an objection to a piece of legislation that is
critically important to the well-being of America. Senators have often
asked Senator Grassley and myself and Senator Inhofe: Where are the
examples of these secret holds? Exactly why do you believe your
legislation is important? We now have a textbook case of a secret hold
that is injurious to America.
For all the talk about earmarks--we have been discussing that here on
the Senate floor, as well as the scope of conference, line-item vetoes
and the like--I would wager that no weapon is more important and more
powerful to each Senator than the ability to stop amendments,
legislation, and nominations through secret holds. I believe as U.S.
Senators we occupy a position of public trust and that the exercise of
the power that has been vested in each of us should be accompanied by
public accountability.
I have no quarrel with the use of a hold. I have used them myself on
several occasions. But what is offensive to the democratic process is
the anonymity, the secrecy, the lack of accountability when a Senator
tries to exercise this extraordinary power in secret.
Let me just wrap up, because I see the distinguished chairman of the
Finance Committee is here, with a quick minute on the history of these
efforts. Senator Grassley and I have been at this for almost a decade.
The Rules Committee held a hearing on our proposal in the summer of
2003. We worked with Chairman Lott and with the ranking minority
member, Senator Dodd, extensively. This is a matter that has been
considered at length by colleagues.
Senator Lott knows firsthand about this issue because he has
personally spent many hours with me as he has wrestled with it, and in
fact tried to set in place some voluntary procedures that would curtail
the abuses of the secret hold.
These secret holds have been an embarrassment to the Senate in my
view, and they have been an embarrassment for a long time. But I cannot
recall an instance where we had a hold, a secret hold on the
Intelligence authorization bill at a time when our country is at war.
This is a practice that needs to end.
I yield now for the distinguished chairman of the Finance Committee,
Senator Grassley. I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. GRASSLEY. Mr. President, today I put a hold on the President's
nominee for the Export-Import Bank. I don't usually issue a press
release when I do that, but I did that because it is in relationship to
a problem we are having with the Export-Import Bank on an ethanol
issue, and I want the people to know that it is broader than just some
of the small reasons you do holds around here.
But I have had a practice, as this amendment would mandate--I have
had a practice over the last 7 or 8 years of putting a statement in the
Congressional Record when I use a hold. I believe I use a hold a little
less often than some of my colleagues do, but I agree. A lot of people
maybe use a hold because they do not want to put up with the fuss that
goes on when you make public why you are holding up a bill and who you
are. But I want to assure you, I have been in the Senate for 25 years,
and I have not lost one ounce of blood. I have not had one black and
blue mark. I don't believe I have had any fight with any colleague over
the practice when they know who I am.
Of course, if they were secret and they never knew I was doing it, I
wouldn't have to worry about any of these things. But I believe, as my
colleague from Oregon does, that the people's business is the people's
business, and the people's business ought to be public. I believe if
you have guts enough to put a special hold on legislation, you ought to
have guts enough to say who you are and why you are doing it. I think
your constituents ought to know that. But more importantly, just to get
things done around here, your colleagues ought to know who it is
because if you have a gripe, let's get the gripe out in the open and
let's talk about it.
What is wrong in America that we do not want to talk about some
things? I don't know how often my constituents brag about: ``There are
two things I never talk about, religion and politics.'' There are no
things that you ought to talk about more than religion and politics
because they have more influence on your life than anything else that
we do in American society. But somehow you can't think that you can do
it in a civil way when you ought to be able to do it in a civil way. In
the U.S. Senate you ought to be able to do all this stuff in a civil
way.
I hope my experiences of not having any harm done to me in any way
for putting a hold on, that people will back this amendment and get the
public's business out. There is nothing wrong with the word ``hold,''
but there is something wrong with the word ``secret.'' When you read it
in the newspapers you never hear the word ``hold'' unless the word
``secret'' is connected with it.
The people around the countryside of America, at least in my State of
Iowa, think what is wrong with American Government is that there is too
much secrecy, too much behind-the-scenes dealing, too much money in
politics--all those things that give us kind of a black eye with the
public. This is not going to solve these problems, just taking the word
``secret'' out of the hold.
But at least the newspapers won't be able to use the word ``secret''
anymore. And maybe when bit by bit we do some of these things around
here we will be able to elevate public service to be the honorable
profession that it ought to be.
This is a small effort on the part of my colleague and myself and now
Senator Inhofe to do that.
How do you eat 10,000 marshmallows? You eat one at a time. How are
you going to raise public respect for the Senate? You are going to do
it a little bit at a time. This may be too little for some people. But
the way caucuses are being held around here on this very subject in the
last hour, you know this is a big deal--and it should be a big deal.
This is the public's business. Having expressed those views, I would
like to go to a statement I have that maybe will make more sense.
The time has come for the Senate as a body to rid itself of a serious
blemish. And, of course, I am talking about the practice I just spoke
about of placing anonymous holds on legislation or nominations.
The power of the hold is to stop a bill or a nomination in its
tracks, which each Senator possesses. It was never authorized or even
intended. It is just a practice. It is not in the books.
I do not object to the use of this powerful tool, so long as it is
accompanied with some public accountability. However, the current lack
of transparency in the process is an affront to the principle of open
government, and I think it is an embarrassment to this body.
The amendment by Senator Wyden and myself and Senator Inhofe which we
proposed today would establish a standing order requiring that holds be
made public. We believe it is time to have the Senate consider our
proposed standing order and then decide as a body whether to end this
secret process.
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For my colleagues who might be apprehensive about this change in
doing business, I ask you to just give it a try. I should point out
that this measure is a standing order which, while binding on Senators,
does not formally amend the Senate rules and can more easily be changed
if it turns out to be unworkable.
I have no doubt that once instituted this reform will be found to be
very sound and no reason will be found why it should not be continued
for a long period of time. For years, I have made it my practice to
publicly disclose in the Congressional Record any hold that I place
along with a short explanation. It is quick, it is easy, and it is
painless. I want to assure my colleagues of that.
Our proposed standing order would provide that a simple form be
filled out, much like we do when we add cosponsors to a bill. Senators
would have a full 3 session days from placing the hold to submit the
form. The hold would then be published in the Congressional Record and
the Senate Calendar. It is just as simple as that.
This amendment is essentially the same as S. Res. 216 in the 108th
Congress, which was a collaborative effort between myself, the Senator
from Iowa, Mr. Wyden, Senator Lott, and Senator Byrd.
In the last Congress, Chairman Lott held a hearing in the Rules
Committee on the issue that is before us. Since that time, I have
worked with Senators Wyden, Lott, and Byrd to come up with what I think
is a very well thought out proposal to require public disclosure of
holds on legislation or nominations in the Senate.
It says a lot that this proposal was written with the help of such
outstanding Senators as Senator Lott and Senator Byrd. As chairman of
the Rules Committee and as former majority leader, Senator Lott brings
valuable perspective and experience. It is also a great honor to be
able to work on this issue with Senator Byrd, who is also a former
majority leader and an expert on Senate rules and procedures.
I can think of no reason a single Senator should be able to kill a
bill or a nomination in complete secrecy. Despite recent attempts by
the leadership to curb abuses of holds, the secret hold remains a stain
on the fabric of the Senate.
It is time for the whole Senate to consider our proposed standing
order and speak as a body on this issue. If any Senator believes I am
misguided in this, I welcome their discussion.
I have yet to hear a single good reason we should allow secrecy to
creep into what ought to be a very public legislative process. In fact,
public discussion on this matter is long overdue. If this practice that
is in the shadows of legislation is to continue, let us at least say so
publicly.
I can think of no better time to consider this long overdue measure
than in the context of a bill titled the ``Legislative Transparency and
Accountability Act.''
If we don't end this in a bill with this title, we are missing a
chance that we have been waiting for for 10 years. I thank the chairman
of the committee for that opportunity. That is why this measure is all
about transparency and accountability.
The purpose of the underlying bill is to restore public confidence in
Congress by making our actions transparent and accountable. Secret
holds run contrary to both principles. They are done in complete
secrecy and allow Senators to avoid public accountability for action.
The underlying bill requires disclosure of earmarks in advance of
conference negotiations and increased disclosure of trips and
employment negotiations.
I ask my colleagues to support the Wyden-Grassley-Inhofe amendment so
that we can use this one small step to restore confidence and have more
public accountability.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, let me begin by commending the two
sponsors of this proposal. I know that each of them has worked so hard
and so long trying to end the practice of secret, indefinite holds
being put on either nominees or placed on legislation. I believe this
proposal is consistent with the goal of this legislation which is more
accountability and more transparency. I commend both of them for their
effort.
I would like to engage the sponsor of this amendment in a colloquy in
order to clarify that his proposal is not intended to reach a very
temporary hold that is placed on a bill in order to allow for review of
that legislation.
Let me give a specific example. Occasionally, bills will be
discharged from their authorizing committees. These are not necessarily
on the calendar. They are discharged from the committee, and the bill
will be hotlined on both of our sides to see if there is any objection.
Obviously, putting a temporary stay on the consideration of a
discharged bill in order to allow a few hours for review or even a day
for review is completely different from the practice of secretly
killing a bill by putting an indefinite anonymous hold.
I wonder if, through the Chair, I could inquire of the sponsor if it
is his intention to distinguish between those two situations. I would
call one a ``consult hold'' perhaps, and one a ``killer hold.''
Mr. WYDEN. Mr. President, as usual, the distinguished Chair of the
subcommittee has put her finger on an important distinction. I want to
take a second to describe how the legislation addresses it. I think we
are of like mind on it. Subsequently, a lot of time was spent by the
distinguished chairman of the Rules Committee and Senator Dodd and
Senator Byrd on this matter.
What the distinguished Chair of the Homeland Security Committee is
describing is essentially a consult. For example, a Senator wants to be
notified about a bill that is headed for the floor. Very often that
comes up, say, when a Senator is in his or her home State and
frequently needs to be able to come back, and it takes a day, and they
need to be able to review it.
Under the Wyden-Grassley-Inhofe amendment we make very clear it is
not our intention to bar those consults. We like to use the word
``consult,'' which is a protected tool for a Senator as opposed to the
question of a hold.
I think perhaps another way to clarify it is a consult is sort of
like a yellow light. You put up a little bit of caution--that we need a
bit of time to take a look at it. A hold is a red light when you are
not supposed to go forward. We don't want people to be able to exercise
those holds in secret. We think it is fine to have the kind of consult
that the distinguished Chair of the Homeland Security Committee has
described.
In fact, to ensure that we have this kind of procedure that the
Senator seeks, we call for 3 days before an individual has to put in
the Congressional Record that they have a hold on a matter.
I think we are clearly in agreement--that the consult is protected,
but the secret hold and forcing the Senate to do its business in public
is what is going to change.
Ms. COLLINS. Mr. President, I very much appreciate the explanation
and clarification of the sponsor of the amendment. I am in complete
agreement with the differences that he described. I believe his
proposal would inject needed transparency and accountability into the
process, not to mention that I would know who puts those holds on my
bills.
I hope this proposal will be adopted. I intend to support it.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise to support this amendment
offered by the Senator from Oregon, the Senator from Iowa, and the
Senator from Oklahoma. I thank them very much for doing it.
I must say, as I listened to the debate I thought back to the winter
of 1988 after I was elected to the Senate.
Incidentally, a distinguished member of that cast was the honorable
Senator from Mississippi, and we attended the orientation session
together that winter for new Senators. I remember then Senator Wendell
Ford from Kentucky came before us to give us instructions about Senate
procedure.
He said: Look, I remember when I was just elected to the Senate. You
are going to find a lot of things around here that don't make much
sense to you, but they will over time.
Then Senator Ford stopped for a moment, and said: Take the seniority
rule. The longer I am here, the more sense it makes to me.
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I want to say the longer I am here, the less sense the secret hold
procedure makes to me. Honestly, it has become increasingly outrageous
when you think about it--that this body can be stopped by an action
that is secret, and the source of the action is not known on a measure
that is on the Senate floor because it came out of a committee. It is
really outrageous.
I congratulate Senators Wyden, Grassley, and Inhofe for seizing this
moment of reform brought about by the reports from the Rules Committee
and our own Homeland Security and Governmental Affairs Committee to
take this opportunity to get rid of this outdated but really outrageous
part of Senate procedure.
If somebody cares enough to hold up a measure and hold up the rest of
us from considering it on the floor, the least they can do is have the
guts to reveal their identity.
That is all this change would bring about.
I thank my colleagues. I look forward to supporting this amendment.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Louisiana.
Mr. VITTER. Mr. President, I defer to the manager of the bill.
Mr. LOTT. Mr. President, is the Senator from Louisiana speaking on
the same issue? If you would defer, Senator Inhofe has become one of
the lead cosponsors of this amendment. I think you would probably like
to be heard in sequence. Then the floor would be open for questions.
Mr. WYDEN. Mr. President, at this point, after the Senator from
Oklahoma has spoken, it would be my intention to very briefly wrap up
the case for the Wyden-Grassley-Inhofe amendment. We would yield our
time at that point, and we are going to ask for a recorded vote.
The PRESIDING OFFICER. The Senate is not currently operating under a
time agreement.
Without objection, the Senator from Oklahoma is recognized.
Mr. INHOFE. Mr. President, first, I was fascinated by the comment
from the Senator from Connecticut that after a few years some of this
stuff will make sense to us. I have only been here 20 years. I am a
patient man; I will wait.
Let me put this in perspective, as far as my interest in this. Back
in 1986 I was elected to the House of Representatives. There was a
procedure that was used at that time called the discharge procedure
whereby a person could discharge a bill out of the committee without
having committee action, but it could be blocked by someone and we
could not know the name of the person who blocked it.
Consequently, we found ourselves in this situation where there would
be legislation that everyone at home is very excited about. We could go
home and campaign and say, yes, I am for this. I remember several of
the West Texas Democrats wanting to oppose gun control. Yet their
caucus wanted them to support gun control. So they would tell the
people at home that they were opposing it. Yet they were the very ones
who kept it from coming up for a vote.
That is exactly the same thing we are dealing with here. In 1994 we
were able to pass that reform. When we came over here in 1994, I was
not even aware that you could put a hold on a bill without disclosing
who you were or who was putting the hold on. This is a very similar
thing. It is transparency, bringing it out in the open.
I agree with my good friend Senator Wyden that if Members want to,
they can put a hold on a bill. This does not affect that. Members just
have to say who they are.
This morning I had my amendment on the floor and Senator Wyden and
Senator Grassley showed me their amendment was essentially the same. I
was very happy to fold mine in. I am happy to be part of this.
After a number of years now, this will become a reality. I applaud my
fellow cosponsors for the fine work they have done.
Let me review how that means of obfuscation worked--this from the
Congressional Record, page H1131, March 10, 1992:
A good example is the method Members from the House of
Representatives used to hide their votes from the people
concerning a balanced budget amendment to our Constitution.
Shortly after it was discovered in a USA Today poll in 1987
that over 80 percent of the people in America want a
balanced-budget amendment to the Constitution, House Joint
Resolution 268 was introduced. House Joint Resolution 268
immediately gained 246 coauthors from over the Nation. I can
just envision, at the town hall meetings back home, a liberal
Democrat standing up and holding House Joint Resolution 268
in his hand saying, ``See here, ladies and gentlemen. This is
my name as cosponsor of House Joint Resolution 268.'' What
the Congressman didn't tell these people is that he has no
intentions of allowing House Joint Resolution 268 to come up
for a vote. How does this Congressman, who is trying to make
the people back home believe that he is supporting a budget-
balancing amendment to the Constitution, keep from having to
vote on it?
It is very simple, the Speaker merely puts it in a
committee and then makes a deal with the committee chairman
not to bring it up for consideration. The only way that it
can be brought up for consideration is for a discharge
petition to be signed by 218 Members of Congress. The
discharge petition is in the Speaker's desk and must be
signed during the course of a legislative day. However, the
names of those individuals who sign a discharge petition are
kept secret and if a Member discloses the names of other
Members who sign the discharge petition, he can be
disciplined to the extent of expulsion from membership of the
House of Representatives. So House Joint Resolution 268 had
240 cosponsors, but only 140 Members were willing to sign the
discharge petition.
Pretty cozy, huh? The Congressman can falsely represent his
position to the people at home and never have to vote on the
issue. I might add that there is a happy ending to that House
Joint Resolution 268 story. Several of us contacted a
national publication. While the publication knew we couldn't
divulge the names of those who signed the discharge petition,
they agreed to print the names of the individuals who
coauthored House Joint Resolution 268, but did not sign the
discharge petition. We found a loophole in the corrupt
institutional system that protects Congressmen from their
electorate and as a result of that, we were able to
immediately force it out onto the floor and we missed passing
a balanced-budget amendment to the Constitution by only seven
votes.
That situation disturbed me so much that in March of 1993 I filed a
one-sentence bill on the House floor challenging the secrecy, ``Once a
motion to discharge has been filed the Clerk shall make the signatures
a matter of public record.''
I had 87 cosponsors, and it passed by a vote of 384 to 40.
In an article about my initiative, Reader's Digest in November of
1994 wrote, ``The success of this legislation is proof that when
Congress is required to do the people's business in the open, the
people--rather than special interests--win . . . the passage of this
one bill is an important first step in the right direction. And it took
a little-known Representative form Oklahoma to point the way.''
I ask unanimous consent to have printed in the Record the full text
of this article.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Reader's Digest, Nov. 1994]
A Story of Democracy and Capitol Hill: How the Trial Lawyers Finally
Met Defeat
(By Daniel R. Levine)
When a twin-engine Cessna airplane crashed near Fallon,
Nev., four years ago, the National Transportation Safety
Board (NTSB) ruled pilot error was the cause. But that didn't
stop lawyers for two of the injured passengers from suing
Cessna on the grounds that the seats on the 25-year old plan
did not provide adequate support. The seats had been
ripped out without Cessna's knowledge and rearranged to
face each other. But the lawyers claimed that Cessna
should have warned against removing the seats. A jury
awarded the two plaintiffs more than $2 million.
In Compton, Calf., a single-engine airplane nearly stalled
on the runway and sputtered loudly during take-off. Less than
a minute into the air it crashed, killing two of the three
people on board. On July 18, 1989, two days before the one-
year statue of limitations would expire, the survivor and
relatives of the deceased passengers filed a $2.5 million
lawsuit naming the plane's manufacturer, Piper Aircraft
Corp., as a defendant. Not mentioned in the suit was the fact
that the plane, built in 1956, had been sitting at the
airport unused and uninspected for 2\1/2\ years. The case,
awaiting trial, has already cost Piper $50,000.
The NTSB found that 203 crashes of Beech aircraft between
1989 and 1992 were caused by weather, faulty maintenance,
pilot error or air-control mishaps. But trial lawyers blamed
the manufacturer and sued each time. Beech was forced to
spend an average of $530,000 defending itself in each case
and up to $200,000 simply preparing for those that were
dismissed.
[[Page S1876]]
Such product-liability lawsuits have forced small-plane
makers such as Cessna to carry $25 million a year in
liability insurance. In fact, Cessna stopped producing
piston-powered planes primarily because of high cost of
defending liability lawsuits. Thus, an American industry that
15 years ago ruled the world's skies has lost more than
100,000 jobs and has seen the number of small planes it
manufactured plummet from over 17,000 in 1978 to under 600
last year.
That may all change. Bucking years of intense lobbying by
trial lawyers, Congress voted last summer to bar lawsuits
against small-plane manufacturers after a plane and its parts
have been in service 18 years. The legislation will create an
estimated 25,000 aviation jobs within five years as
manufacturers retool and increase production.
This was the first time that Congress has reformed a
product-liability law against the wishes of the lawyers who
make millions from these cases. And the dramatic victory was
made possible because of the efforts of a little-known
Congressman from Oklahoma who challenged Capital Hill's
establishment.
On his first day in 1987 as a member of the U.S. House of
Representatives, Jim Inhofe (R., Okla.) asked colleague Mike
Synar (D., Okla.) how he had compiled such a liberal voting
record while winning re-election in a conservative district.
Overhearing the question, another longtime Democratic
Congressman interjected: ``It's easy. Vote liberal, press-
release conservative.''
This was a revealing lesson in Congressional ethics, the
first of many that would open Inhofe's eyes to the way
Congress really ran. He soon realized that an archaic set of
rules enabled members to deceive constituents and avoid
accountability.
When a Congressman introduced a bill, the Speaker of the
House refers it to the appropriate committee. Once there,
however, the bill is at the mercy of the committee chairman,
who represents the views of the Congressional leadership. If
he supports the legislation, he can speed it through hearings
to the House floor for a vote. Or he can simply ``bury'' it
beneath another committee business.
This arrangement is tailor-made for special-interest
lobbies like the Association of Trial Lawyers of America
(ATLA). For eight years, bills to limit the legal liability
of small-aircraft manufacturers had been referred to the
House Judiciary Committee, only to be buried. Little wonder.
One of the ATLA's most reliable supporters on Capitol Hill
has been Rep. Jack Brooks (D., Texas), powerful chairman of
that committee and recipient of regular campaign
contributions from ATLA.
The only way for Congressmen to free bills that chairmen
such as Brooks wanted to kill was a procedure called the
discharge petition. Under it, a Congressman could dislodge a
buried bill if a House majority, 218 members, signed a
petition bringing it directly to the floor for a vote. But
discharge petitions virtually never succeeded because, since
1931, signatures were kept secret from the public. This
allowed Congressmen to posture publicly in favor of an issue,
then thwart passage of the bill by refusing to sign the
discharge petition. At the same time, House leaders could
view the petitions, enabling them to pressure signers to
remove their names. Of 493 discharge petitions ever filed,
only 45 got the numbers of signatures required for a House
vote. And only two of those bills became law.
Inhofe saw the proposals overwhelmingly favored by the
American people--the 1990 balanced-budget amendment, school
prayer, Congressional term limits, the line-item veto--were
bottled up in committee by the House leadership. When
discharge petitions to free some of the bills were initiated,
they were locked in a drawer in the Clerk's desk on the House
floor. The official rules warned that disclosing names ``is
strictly prohibited under the precedents of the House.''
In March 1993, Inhofe filed a one-sentence bill on the
House floor challenging the secrecy: ``Once a motion to
discharge has been filed the Clerk shall make the signatures
a matter of public record.''
The bill was assigned to the Rules Committee, where it was
buried. Three months later, on May 27, Inhofe started a
discharge petition to bring the bill to a floor vote. Among
those signing was Tim Penny (D., Minn.), a lawmaker who after
ten years in the House had grown so disgusted that he had
decided not to run for re-election. ``Discharge petitions
procedures are symbolic of the manipulative and secretive way
decisions are made here,'' said Penny. ``It's just one more
example of how House leaders rig the rules to make sure they
aren't challenged on the floor.''
Inhofe, though, was badly outnumbered. The Democrats82-seat
majority controlled the flow of legislation. But he was not
cowed. From his first years in politics Inhofe had shown an
independent streak--and it had paid off. After initially
losing elections for governor and Congress, He was elected to
three consecutive terms as mayor of Tulsa, beginning in 1977.
In 1986, he ran again for the Congress and won. Four years
later, he bucked his own President, George Bush, by voting
against a 1991 budget ``compromise'' that included a $156-
billion tax hike.
By August 4, two months after filing his discharge
petition, Inhofe had 200 signatures, just 18 shy of the 218
need to force his bill to the floor, but the House leadership
was using all its muscle to thwart him. On the House floor,
Inhofe announced: ``I am disclosing to The Wall Street
Journal the names of all members who have not signed the
discharge petition. People deserve to know what is going on
in this place.''
It was a risk. House leaders could make him pay for this
deed. But by making public the names of non-signers, he would
avoid a direct violation of House rules. Inhofe collected the
names by asking every member who signed the petition to
memorize as many other signatures as possible.
The next day, The Wall Street Journal ran the first of six
editorials on the subject. Titled ``Congress's Secret
Drawer,'' it accused Congressional leaders of using
discharge-petition secrecy to ``protect each other and keep
constituents in the dark.''
On the morning of August 6, Inhofe was within a handful of
the 218 signatures. As the day wore on, more members came
forward to sign. With two hours to go before the August
recess, the magic number of 218 was within his grasp.
What happened next stunned Inhofe. Two of the most powerful
members of Congress--Energy and Commerce Committee Chairman
John Dingell (D., Mich.) and Rules Committee Chairman Joseph
Moakley (D., Mass.)--moved next to him at the discharge
petition desk. In a display one witness described as
political ``trench warfare,'' the two began ``convincing''
members to remove their names from the petition.
Standing near the desk was Rep. James Moran (D., Va.).
Moakley warned him that if Inhofe succeeded, members would be
forced to vote on controversial bills. ``Jim,'' he said
sternly, ``I don't have to tell you how dangerous that would
be.'' When the dust settled, Moran and five colleagues--
Robert Borski (D., Pa.), Bill Brewster (D., Okla.), Bob
Clement (D., Tenn.), Glenn English (D., Okla.) and Tony Hall
(D., Ohio)--had erased their names.
Still refusing to quit, Inhofe faxed the first Wall Street
Journal editorial to hundreds of radio stations. Before long,
he found himself on call-in programs virtually every day of
the week.
When The Wall Street Journal printed the names of the
nonsigners on August 17, House members home for the summer
recess could not avoid the public outcry Inhofe had
generated. With scandals in the House bank, post office and
restaurant still fresh in their minds, voters were
demanding openness.
Feeling outgunned, Moakley allowed his Democratic
colleagues to sign the discharge petition. When Rep. Marjorie
Margolies-Mezvinsky (D., Pa.) affixed her name to the
petition on September 8, she became the 218th Signatory.
Inhofe's bill won overwhelming approval on the final vote,
384-40. Even though most Democrats had not supported him, 209
now voted with Inhofe. Groused Dingell: ``I think the whole
thing stinks.''
The first real test of Inhofe's change came last May when
Representatives Dan Glickman (D., Kan.) and James Hansen (R.,
Utah) filed a discharge petition to free their bill limiting
small-plane manufacturer liability. Even though it was co-
sponsored by 305 members, the bill had been bottled up in the
Judiciary Committee for nine months. But because members'
signatures would now be public, voters would finally know who
truly stood for product-liability reform and who did not.
Meanwhile, the Association of Trial Lawyers of America was
pulling out all the stops to kill the bill. Members
personally lobbied Congressmen and orchestrated a ``grass-
roots'' letter-writing campaign in which prominent trial
attorneys urged their Representatives not to support the
bill. ATLA even fired off a maximum-allowable contribution of
$5,000 to Representative Hansen's opponent in the November
election.
The pressure didn't work. Within two weeks 185 members had
signed, and House leaders realized it would be impossible to
stop the petition. Their only how was to offer a compromise
version. In mid-June, Brooks reported out of committee a bill
that differed only slightly from the original. On August 2,
the Senate approved similar legislation. The next day the
bill cleared the House without dissent. On August 17,
President Clinton signed it into law.
Glickman, whose Wichita district is home to Cessna and
Beech aircraft companies, said the procedural change
spearheaded by Inhofe was crucial to victory. ``A lot of
forces did not want this bill to go forward,'' he continued,
``and it would not have succeeded without the discharge
petition.''
The success of this legislation is proof that when Congress
is required to do the people's business in the open, the
people--rather than special interests--win. The high cost of
product-liability lawsuits, to manufacturers as well as
consumer, will require far more sweeping reform of the tort
system. But the passage of this one bill is an important
first step in the right direction. And it took a little-known
Representative from Oklahoma to point the way.
Mr. INHOFE. The situation is exactly the same here, Mr. President.
In fact, the very stated reason for this whole bill is to require
Congress to do the people's business in the open.
A Senator may have a hold on a nomination or a bill or a unanimous
consent agreement, and that hold is secret.
It is just as possible for a Senator to keep his constituents and
Americans in general in the dark now about their holds as it was for
House Members before I successfully led the charge for transparency in
discharge petitions.
[[Page S1877]]
Indeed the Wall Street Journal was strongly in favor of my House
efforts at that time.
Toward that end, I ask unanimous consent to have printed in the
Record the Wall Street Journal's six editorials on the issue of
discharge motions.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Sept. 30, 1993]
Real House Reform
On his first day in office in 1987, Rep. Jim Inhofe asked a
fellow Oklahoma Member how he could be so liberal and keep
getting elected in a conservative state. A third Congressman
interrupted: ``It's easy. Vote liberal. Press release
conservative.''
Rep. Inhofe took a big step toward ending such hypocrisy
Tuesday, when Congress voted 384 to 40 for his proposal to
end the secrecy of discharge petitions. Constituents will now
know who's signed up for the procedures necessary to
discharge a bill from committee and force a vote; Members
will no longer be able to posture one way and act another on
bills popular with the public but unpopular with fellow
legislators. Rep. Inhofe's overwhelming majority, after the
difficulty he had signing up 218 Members to discharge his own
proposal, is itself testimony to the difference between
smoke-filled rooms and the light of day.
At least the 40 opponents, whose names appear below, were
willing to stand up and be counted in favor of secrecy. ``I
think the whole thing stinks,'' declared Rep. John Dingell,
much-feared chairman of the House Energy and Commerce
Committee. General Dingell warned that reform ``means you
lay the basis for the entire bypassing of the committee
system.'' House Rules Committee Chairman Joe Moakley
railed against an ``aroused and enraged'' public that is
``virtually impossible to engage in reasonable and
thoughtful debate.''
Watching Jim Wright's departure, the Keating Five scandals,
the House Bank and Post Office, much of the public doubts
that such debate is what goes on in Capitol corridors.
Indeed, it thinks it has some right to be aroused and
enraged. And when Congress routinely exempts itself from
rules it imposes on the rest of society, much of the public
thinks that something needs to be bypassed. So it's entirely
appropriate that this major reform of House rules be forced
on Congress by popular outcry.
The ideological bent of this outcry is also noteworthy. As
the 40 holdouts show, the drive to make Members accountable
was certainly not led by the liberals who have long thought
themselves the font of ``reform.'' We on this page were glad
to have played our part, and are equally glad to credit Rush
Limbaugh's broadcasts and the efforts of Ross Perot, whose
supporters held all-night vigils in front of Congressional
offices.
We would also note, though, the lack of interest from a
press that holds itself devoted to ``the public's right to
know.'' For a month after Rep. Inhofe's August 4 announcement
that he would publicize the names of Members who refused to
end secret discharge petitions, no network or other major
newspaper mentioned his crusade. Only after public agitation
forced a House majority to back Mr. Inhofe did our colleagues
at the New York Times and the Washington Post address the
issue. The Post noted that ``in a democracy, where elected
officials have an obligation to be candid and accountable,
there is no reasonable argument against this change.'' We're
grateful for the support, but wonder if they'd have joined
the battle before it was won had it been led by, say, Ralph
Nader.
It's also intriguing that secrecy was supported by Beltway
``academics.'' Thomas Mann and Norman Ornstein complained we
had created ``a wildly inaccurate portrayal of Congress as a
closed, secretive institution dominated by committees and
party barons and unresponsive to popular sentiment.'' We
refer them to the respected Members now departing in disgust.
Rep. Tim Penny, the retiring Minnesota Democrat, says it took
him ``only six months in Congress to realize this place
doesn't operate on the level.'' In particular, he says, many
Democrats are themselves upset that House leaders ``rig the
rules to make sure they aren't challenged on the floor.''
To the Members, the academics and the press we say this:
Welcome to the age of instant communications. We doubt that
the discharge petition reform will be the last reform. In
particular, some 75% of the American people support
limitations on Congressional terms. Last week, after it
became clear that discharge petitions would be made public,
five Members signed the petition to discharge term limit
legislation. While defenders of Congressional secrecy predict
untoward and chaotic results, we trust the public a lot more
than we trust the Members.
In 1867, the British Parliament passed the Second Reform
Act, sponsored not so incidentally by Disraeli's
conservatives. It gave the vote to the likes of rent-payers,
and upon passage the Viscount Sherbrooke advised fellow
parliamentarians to ``prevail on our future masters to learn
their letters.'' In the popularized version this became, ``We
must educate our masters.'' If the John Dingells and Joe
Moakleys are really worried not about their own prerogatives
but the future of the republic, they would be well-advised to
adopt the constructive attitude affirmed by Viscount
Sherbrooke.
The 40 House Members who on Sept. 28 voted in favor of
secrecy on discharge petitions:
Neil Abercrombie (D., Hawaii) Sanford Bishop (D., Ga.) Jack
Brooks (D., Texas) Corrine Brown (D., Fla.) Bill Clay (D.,
Mo.) Eva Clayton (D., N.C.) B.R. Collins (D., Mich.) Cardiss
Collins (D., Ill.) Buddy Darden (D., Ga.) John Dingell (D.,
Mich.) Don Edwards (D., Ca.) Vic Fazio (D., Ca.) Floyd Flake
(D., N.Y.) William Ford (D., Mich.) Henry Gonzalez (D.,
Texas) Earl Hillard (D., Ala.) Ron Kink (D., Pa.) John Lewis
(D., Ga.) Ron Mazzoli (D., Ky.) Cynthia McKinney (D., Ga.)
Carrie Meek (D., Fla.) Joe Moakley (D., Mass.) Alan Mollohan
( D., W. Va.) John Murtha (D., Pa.) Donald Payne (D., N.J.)
Nancy Pelosi (D., Ca.) J.J. Pickle (D., Texas) Charles Rangel
(D., N.Y.) Lucille Roybal-Allard (D., Ca.) Bobby Rush (D.,
Ill.) Martin Olav Sabo (D., Minn.) Neal Smith (D., Iowa) Pete
Stark (D., Ca.) Esteban Torres (D., Ca.) Jolene Unsoeld (D.,
Wash.) Nydia Velazquez (D., N.Y.) Peter Visclosky (D., Ind.)
Craig Washington (D., Texas) Mel Watt (D., N.C.) Sidney Yates
(D., Ill.)
____
[From the Wall Street Journal, Sept. 20, 1993]
Hands Off Inhofe!
When Rep. Jim Inhofe mobilized public opinion and forced
House leaders to allow a September 27 floor vote on his bill
to end secret discharge petitions, he knew they might try to
undermine him. Sure enough, there are signs that the
leadership hopes to placate the public by accepting Mr.
Inhofe's secrecy bill but then sneak through House-Rule
changes that would gut his reform. Should they try this
stunt, Members better be ready to take some real heat from
voters.
Only hours after Mr. Inhofe's first-round victory on
September 8, House Rules Committee Chairman Joe Moakley said
he planned an ``alternative'' to Mr. Inhofe's bill. No doubt
it would pay lip service to reform while it retains the
system that lets Congressional barons make certain that
popular bills never see the light of day.
House leaders may try to require that two-thirds of the
Members sign any discharge petition to bring a bill to the
floor, rather than a simple majority. Since less than 10% of
discharge petitions now reach the House floor, such
a ``reform'' would kill any chance of freeing popular
bills bottled up in committee. Exhibit A: Even though 75%
of voters and more than 100 Members favor term limits,
Speaker Tom Foley hasn't even allowed a committee hearing
on the issue.
The Rules Committee met last week to discuss altering the
Inhofe reform. It was suggested that successful discharge
petitions merely require a committee to hold hearings on a
bill. A floor vote would be mandated only if a committee
refused to take any action. But, according to the newspaper
Roll Call, House leaders rejected even that move. They fear
they'll lose iron control of the legislative process if a
majority of Members have a realistic way of bringing bills to
the floor.
The hearings then became a platform for Members to vent
their frustration with Mr. Inhofe's success at exposing the
gag rule that kept names on a discharge petition secret. Rep.
James Oberstar of Minnesota came to denounce Mr. Inhofe, but
ended up scoring points for him. He called Mr. Inhofe's
sunshine law a ``gimmick.'' However, he conceded that if
Democrats ``were in the minority, we'd probably be doing the
same.'' He also admitted that many Members introduce bills
only to get ``special interests off their backs.''
Mr. Inhofe says Mr. Oberstar's admission proves that secret
discharge petitions allow Members to say one thing at home
and then do something else in Washington. ``Standing up to
special interests is part of the job,'' he says. ``If you
can't, step aside and let someone who can serve.''
Rep. Inhofe says his battle to end secrecy has also
demonstrated the stranglehold that committee chairmen now
exercise over legislation. Before the August recess, Mr.
Inhofe's antisecrecy petition was only one signature short of
the needed majority. Then Chairman Moakley ``convinced'' six
Members to remove their names, forcing Rep. Inhofe to take
his case to the American people.
Virginia Democrat James Moran candidly explained why he
dropped off: ``When the chairman of the Rules Committee asks
me to do something and it's not in conflict with my
conscience, I think my ability to serve my district is
enhanced when I say yes.'' Mr. Moran then noted how powerful
Chairman Moakley is.
Thomas Mann, a Congressional scholar at the Brookings
Institution, opposes the Inhofe reform, but he advised the
Rules Committee not to amend it. ``That will only inflame the
public further,'' he told us. He noted that if problems
develop, the majority party will then have a good reason to
push for modifications. In short, the House should have
cleaned up its act years ago. Now the voters are going to do
it for them.
____
[From the Wall Street Journal, Aug. 25, 1993]
Asides: Discharge Rumbles
Some House Members have complained that we listed their
names among the 223 Members who haven't joined Rep. Jim
Inhofe's effort to end secret discharge petitions. Speaking
for the non-signers in today's letters column, Rules
Committee
[[Page S1878]]
Chairman Joe Moakley claims that ending secrecy would mean
more power for lobbyists and special interests (see related
letter: ``Letters to the Editor: Why Make It Easier For
Special Interests?''--WSJ Aug. 25, 1993). We'd have thought
that taking a stand against such forces came with the job. We
suspect that Mr. Moakley is fundamentally worried that his
Rules panel would lose its hammerlock on bills. Some Members
aren't listening to him. Democrats David Mann of Ohio and
Barney Frank of Massachusetts have told constituents recently
that they favor ending the secrecy rule. Rep. Frank says the
issue is simply about whether House Members support open
government. Three more Members will give Rep. Inhofe the
majority that he needs to let some sunshine into Congress.
____
[From the Wall Street Journal, Aug. 19, 1993]
Asides: Discharge Charge
Rep. Jim Inhofe's effort to end secret discharge petitions,
which allow Members to publicly claim support for a bill
while privately working for its defeat, is attracting some
big-name boosters. Rush Limbaugh alerted his listeners to our
publication this week of the list of 223 Members who refused
to join Mr. Inhofe's effort. The 50 state directors of Ross
Perot's organization have been asked to make discharge
petition reform ``a high priority.'' Mr. Perot himself will
discuss the subject on C-SPAN tonight at 8 p.m., EDT.
Outraged voters are already making an impact. Rep. Karen
Thurman, a first-term Florida Democrat, faxed Mr. Inhofe
yesterday to say she will now sign up. By the way, through a
production error Rep. Dave McCurdy of Oklahoma was omitted
from the list we published. His office confirms he is not
supporting Rep. Inhofe.
____
[From the Wall Street Journal, Aug. 9, 1993]
Asides: House Enforcers
House leaders could scarcely miss the danger Rep. Jim
Inhofe posed to them with his effort to end secret discharge
petitions, described in our editorial last week. Why, making
public the now-secret list of members calling for floor votes
on bills held by the Rules Committee would let constituents
check up on members. Leaders couldn't bottle up popular
bills.
On Friday, Rep. Inhofe had 208 of the 218 signatures needed
on a discharge petition for his own proposal to end this
hypocrisy. Then C-SPAN viewers saw House Committee Chairmen
Joe Moakley and John Dingell park themselves near the desk
where the petition is kept, where they ``persuaded'' several
Members to remove their names. We still plan to publish the
names of those Members who favor secrecy over open
government, and maybe constituents can do a little persuading
of their own.
____
[From the Wall Street Journal, Aug. 5, 1993]
Congress's Secret Drawer
The ongoing drama in the Capitol makes it clearer than ever
that Congress can't control either itself or its budget. A
large part of the problem is procedure, an arcane set of
rules evolved over the years to let Congresspersons protect
each other and keep constituents in the dark. Rep. Jim Inhofe
has launched a campaign against the keystone of these rules,
the veil of secrecy covering a device called the discharge
petition.
It works like this: The House conspires to bottle up in
committee all the bills that are popular in the country but
unpopular on Capitol Hill--balancing the budget or limiting
terms, for example. The Rules Committee is particularly
crucial, as it was in shelving civil rights bills in the
1950s. The Rules Committee simply sits on a bill, allowing
members to posture in public in support while never having to
vote on it, much less enact it.
The discharge petition is supposed to serve as a
protection; a bill can be forced onto the floor if a majority
of Members sign a petition. But that rarely succeeds, because
until the required number of 218 is reached, the list of
signers is kept strictly secret. So Members can still posture
in public and effectively vote the other way in secret, even
co-sponsoring a bill but refusing to sign its discharge
petition. Worse, only House leaders know who has signed, and
when a petition nears 218 they can pressure the most pliable
members to drop off.
Discharge petition procedures have the flavor of a covert
brotherhood rather than a representative body. Petitions are
kept locked in a drawer at the clerk's desk. The drawer can
only be opened during a House session and only a signing
Member can see a petition. Members cannot take any notes, and
can't even bring their own pens to the desk. They must read a
statement signed by the Speaker noting that disclosing any
names on the petition is ``strictly prohibited under the
precedents of the House,'' a prohibition imposed in 1931
by Speaker John Nance Garner, but never made part of House
Rules. Violators face disciplinary action, up to and
including expulsion.
Rep. Inhofe was granted floor time last night to dare House
leaders to carry out this threat. Mr. Inhofe filed a bill to
require that signatures on a discharge petition be made
public, and it was promptly assigned to the Rules Committee
for burial. So he started a discharge petition to bring it to
the floor, and quietly asked each signer to memorize other
names on the list; by now he's painstakingly assembled a list
of 200 signers, only 18 short of a majority. He revealed last
night that he will disclose the names of all Members who have
not signed the petition, and is ready to face any
disciplinary action against him.
As a public service, we've agreed to print his list as
Congress leaves Washington to visit its home constituencies.
Watch this space to learn if your Congressperson wants
secrecy or openness in government. Of course, Members not on
Mr. Inhofe's petition can sign up for openness before leaving
town. As he advised his colleagues last night: ``It's just
one short trip to the secret drawer to sign discharge
petition No. 2. Take a friend.''
After all was said and done, the Wall Street Journal noted, ``Members
will no longer be able to posture one way and act another on bills
popular with the public but unpopular with fellow legislators . . .
While defenders of Congressional secrecy predict untoward and chaotic
results, we trust the public a lot more than we trust the Members.''
Mr. President, that is again exactly what I am talking about here in
this parallel instance.
I want to very strongly note that the Wall Street Journal is in favor
of eliminating the secrecy of Senate holds at this time.
Toward that end, I ask unanimous consent to have printed in the
Record this Wall Street Journal editorial that endorses the concept of
eliminating secret holds, assuming no one puts an anonymous hold on
this unanimous consent request:
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Apr. 29, 2005]
Advise and Consign--The Filibuster Isn't the Only Procedure Senators
Are Abusing
With a showdown looming over the filibuster of judicial
nominees, now is the time to point out another abuse of the
Senate's ``advise and consent'' power. It's called the
``hold,'' whereby an individual Senator can delay
indefinitely a Presidential nomination, and it is seriously
interfering with the operation of the executive branch.
Call it every Senator's personal ``nuclear option.'' If he
doesn't like a nominee or, more likely, doesn't like a policy
of the agency to which the nominee is headed, all he has to
do is inform his party leader that he is placing a hold on
the nomination. Oh--and he can do so secretly, without
releasing his name or a reason.
Like the filibuster, the hold appears nowhere in the
Constitution but has evolved as Senators accrete more power
to themselves. Senate rules say nothing about holds, which
started out as a courtesy for Members who couldn't be present
at votes. Oregon Democrat Ron Wyden has said holds are ``a
lot like the seventh-inning stretch in baseball. There is no
official rule or regulation that talks about it, but it has
been observed for so long that it has become a tradition.''
Also like the filibuster--which was never intended to block
judicial nominees from getting a floor vote--the hold is
being abused by a willful minority of Senators. This being a
Republican Administration, Democrats in particular are using
it now to hamstring or stop its ability to govern. There's no
formal list of holds, but the current batch may well be
unprecedented both in number and degree. Here's our
unofficial list:
Rob Portman, U.S. Trade Representative. The Senate Finance
Committee unanimously backed the former Congressman this
week. But don't expect a floor vote soon. Indiana Democrat
Evan Bayh has placed a hold on his nomination in hopes of
forcing a vote on a protectionist bill he favors on trade
with China. (Think AFL-CIO and the 2008 Presidential
nomination.) Meanwhile, it looks like Mr. Portman will miss a
high-level meeting next week in Paris to jump-start trade
talks.
Stephen Johnson, head of the Environmental Protection
Agency. Senator Tom Carper says Mr. Johnson ``is qualified to
head the EPA and would serve the agency well.'' Yet the
Delaware Democrat placed a hold on him over a dispute
regarding the Administration's Clear Skies program,
regulating pollutants in the air. Mr. Johnson dodged an
earlier bullet when California Democrat Barbara Boxer
threatened a hold unless the EPA canceled a study of infants'
exposure to home pesticides. Mr. Johnson, who is acting EPA
head, canceled the program.
Lester Crawford, Food and Drug Administration Commissioner.
The sticking point here is Plan B, aka the morning-after
pill. Democrats Hillary Clinton and Patty Murray want Plan B
sold over the counter and say that the agency is stalling.
They say they won't lift their hold until the FDA makes a
decision.
Tim Adams, Undersecretary of the Treasury for International
Affairs. The person in this position is responsible for,
among other critical issues, the Chinese yuan and the World
Bank. But Democrat Max Baucus has higher priorities--
namely, trade with Cuba. He objects to a legal ruling by
an obscure arm of the Treasury that requires advance
payment by Havana for purchases of U.S. agricultural
products such as grain from the Senator's home state of
Montana. There are six more Treasury positions open--
including those responsible for tax policy, Fannie Mae
[[Page S1879]]
and terrorist financing. Mr. Baucus promises holds on all
of them. The Senator realizes he can't win a vote in
Congress on his Cuba problem, so he's resorting to this
nomination extortion.
Defense Department. Where to begin? With a war on, you'd
think Senators would want to keep the Pentagon fully staffed.
But John McCain, angry over the Air Force's tanker-leasing
deal with Boeing, last year put holds on numerous Defense
nominees, including two candidates for Army Secretary, the
comptroller and the assistant secretary for public affairs,
the long-serving Larry DiRita. Now that Mr. McCain's personal
punching bag, Air Force Secretary Jim Roche, has left the
Pentagon, the Arizona Republican has calmed down--though not
enough to lift his hold on Michael Wynne as Undersecretary
for Acquisition. President Bush gave Mr. Wynne a recess
appointment last month.
Meanwhile, Democrat Carl Levin has a hold on Peter Flory,
who was nominated almost a year ago as Assistant Secretary
for International Security Policy. Mr. Flory has the
misfortune to work for Undersecretary Douglas Feith, whom
Senator Levin has pursued like Ahab chasing Moby Dick. So Mr.
Flory gets harpooned, too.
Until Wednesday, John Paul Woodly was blocked as Assistant
Secretary of the Army for Civil Works by Alabama's two
Republican Senators. Jeff Sessions and Richard Shelby said
Washington favored Georgia in a decade-long dispute over
water rights. (We're not making this up.) And in March,
Mississippi Republican Trent Lott placed a hold on the
chairman of the Base Closing Commission, which he feared
might shut a military facility in his home state. The
President again had to use recess appointments to name all
nine members in April.
Once upon a time in America, such policy disputes were
settled in elections or with votes in Congress. But in
today's permanent political combat, Senators wage guerrilla
warfare against the executive. No wonder so few talented
people want to work in Washington. Senator Wyden and
Republican Charles Grassley plan to re-introduce legislation
next month to kill holds that are secret. Better yet would be
to get rid of all Senate holds.
Mr. INHOFE. As the Wall Street Journal mentions, neither the
Constitution nor the Senate Rules mention holds. We need this
legislation to correct the current situation.
One of the many times I personally have run into this problem of
holds was in the case of the nomination of Governor Mike Leavitt of
Utah to be administrator of the Environmental Protection Agency.
As chairman of the Senate Environment and Public Works Committee I
was trying to shepherd the nomination of Governor Leavitt through my
committee.
At that time in 2003, Governor Leavitt was being run through
unprecedented hoops by the Democrats to obstruct his nomination even
though we had an affirmative statement from my Ranking Member Senator
Jeffords that he considered Governor Leavitt a friend and admission
that he was going to receive the vote of Senator Jeffords.
Pursuant to this situation, Roll Call wrote the following piece that
I ask unanimous consent to have printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Roll Call, Oct. 6, 2003]
Inhofe Considers Rules Amendment
(By Mark Preston)
Environment and Public Works Chairman James Inhofe (R-
Okla.) is considering asking his Senate colleagues to amend
chamber rules to terminate the minority party's ability to
block committees from reporting out legislation and
nominations.
Such a measure would impose uniform guidelines on how the
Senate's 19 standing committees and lone special panel
operate.
``I am going to have to look to see what can be done,
because the Democrats could effectively shut down the
government altogether,'' Inhofe said.
The EPW chairman's contemplation of a new rule was sparked
by committee Democrats' successful effort last week to delay
a vote on Utah Gov. Mike Leavitt's (R) nomination to head the
Environmental Protection Agency. Democrats charge that
Leavitt has failed so far to adequately answer their written
questions posed to him, and therefore boycotted the hearing.
Inhofe is likely to face stiff opposition if he pursues a
change in the rules, which would require 67 votes on the
Senate floor.
``I am not in favor of changing the rules much,'' said Sen.
Robert Byrd (D-W.Va.), a staunch defender of Senate
tradition. ``The rules have been here for a long time and
they are the product of decades of experience.''
Currently, each committee adopts its own rules of procedure
at the outset of every Congress. EPW rules require that at
least two members from the minority party be present for a
nominee to be reported out of committee. Democrats took
advantage of that stipulation by not attending the Leavitt
hearing and thereby preventing Inhofe from holding a vote on
the nomination.
``I think we may have to change the rules in the Senate in
terms of how committees operate because they say you can't
conduct business unless you have members of both sides''
present, Inhofe said. ``What they did [Wednesday] is far
worse than stopping a guy's confirmation. It goes to the
whole heart of how the committee system works.''
Even though EPW requires at least two minority party
representatives to be present to take action, other
committees have less stringent rules. For example, the
Finance Committee requires that a quorum include at least one
member from each party to be present when the full committee
votes on a bill or a nomination. And the Rules and
Administration Committee requires that a majority of panel
members be present to vote on legislation or a nominee, but
does not stipulate that a member from either the majority or
minority be present when such an action is taken.
Inhofe said he is also interested in amending the rule that
allows committees to only meet for two hours after the Senate
gavels into session unless both parties agree--on a daily
basis--to waive it. In recent years, this unanimous consent
agreement has been rejected by several Senators for various
reasons.
``One party can stop government completely, and I don't
think that was certainly the intent of those people who made
the rules to start with,'' the Oklahoma Republican said.
Inhofe's proposals for adding to and altering the current
rules are just two among a handful of reforms that
Republicans have been championing since taking over the
majority earlier this year.
``The Senate Republican majority is going to have to look
at a number of them,'' Rules Chairman Trent Lott (R-Miss.)
said of potential changes. ``I do think our rules have not
been seriously considered in quite some time.
``We need to take a look at the way the Senate functions,''
Lott added.
One rules change is currently waiting action by the full
Senate. Lott's panel approved a measure in June that would
end the use of a filibuster to stop a nomination. All 10
Republicans on the panel voted to report the bill out of
committee, but it still needs the backing of 67 Senators on
the Senate floor for it to be enacted. Democrats on the Rules
panel did not attend the June 24 hearing and have vowed to
prevent the rule change from passing on the floor.
Republicans are seeking this change to stop Democrats from
blocking President Bush's judicial nominees. Already, one of
Bush's picks for a seat on the appellate court has withdrawn
his name because Democrats refused to allow a vote on his
nomination. Currently, Democrats are blocking two other
judicial nominees and have pledged to block U.S. District
Judge Charles Pickering's nomination to the appeals court.
The disagreement over judges has added to the partisanship
in the traditionally collegial Senate.
``I think the judge issue is poisoning the well around here
and it is unfortunate,'' said Sen. Judd Gregg (R-NH). ``It
has never happened before this filibuster on the judges at
this level, and that has created frustration.''
But Democrats contend Bush is to blame for the judicial
filibusters, because he refuses to work with Democrats to
pick candidates acceptable to both political parties.
``I would like to point out, when people are opposed to
some of these nominees, don't look at the Senators, ask the
guy who sent the nominees,'' said Judiciary ranking member
Patrick Leahy (D-VT). ``That is part of the problem. The
White House doesn't make an effort to really work with
everybody.''
Another rules change advocated by several Senators is one
ending the use of an anonymous ``hold.'' A hold is a tactic
used by a Senator to stop a nomination or a bill the lawmaker
opposes, or often to gain leverage on another issue.
It is a huge problem for the leaders,'' Lott said of the
use of secret holds. And Lott, a former Majority Leader,
warned that Majority Leader Bill Frist (R-TN) and Minority
Leader Tom Daschle (D-SD) will experience the ``devastating''
consequences of this practice when the two leaders try to
wrap up legislative business for the year.
They are fixing to find out the last week we are here they
are going to say, `The hold is a really bad creation,' ''
Lott said. ``I know it, but they have got to see it. That is
when conferences are coming through, and that is when bills
need to move.''
As for the Leavitt nomination, Inhofe has scheduled three
consecutive meetings beginning Oct. 15 in which a vote on the
Utah governor's nomination could occur. But it is unclear
what action Democrats will take.
``He hasn't answered our questions,'' said Sen. Barbara
Boxer (D-CA). ``So if we get the answers to our questions
from Leavitt that is a different circumstance.''
``Let's see how he answers our questions,'' she added.
Inhofe could change his panel's rules to allow him to
report Leavitt out of the committee, but he would still need
two Democrats present to take a formal vote on the change.
Mr. INHOFE. You can see from roll-call's reporting that no matter
what I achieved in my committee, an anonymous hold could always be
placed on the President's nomination, and thus a
[[Page S1880]]
halt could be brought to operations of the Senate and in turn the
administration.
The American people do not want obstruction; they want progress from
us.
Obstruction was certainly practiced by Senator Daschle, and the
people showed their lack of appreciation at the ballot box.
I ask that Members join me in this effort and do what our
constituents want for the sake of transparency and honesty.
We ought to have the courage to stand up for our convictions, not
hide in the shadows of darkness and anonymity.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, it is my intent at this point to wrap up.
I particularly thank the distinguished Senator from Oklahoma, who has
had a longstanding interest in this subject, for working with Senator
Grassley and myself. We do have a bipartisan effort.
The Senator from Oklahoma has highlighted another problem with it,
and a lot of Members who served in the other body bumped into this. A
lot of these holds over the years have not even been placed by Senators
themselves. They have been placed by staff, and Senators go up to each
other and try to ask about a matter and it ends up a Senator may not
even know about it.
I also see the Senator from Mississippi, the distinguished chairman
of the Committee on Rules. He spent a lot of hours with me talking
about this over the years. Senator Lott, to show his commitment to the
cause of openness, has tried repeatedly to get Senators to do this
voluntarily. I recall on a number of instances Senator Lott and Senator
Daschle met with Senator Grassley and me. We put together a variety of
letters and directives to Senators. It still would not come together.
We think you have to make this a permanent change in the Senate
procedures, put the burden on the objector rather than on the
leadership, as we have done so often in the past, and the leaders would
then have to make phone calls. Senator Lott has a wonderful story that
he has told me over the years about sitting in phone booths at airports
calling Members, trying to figure out who in the world had a hold on
something.
I say to colleagues, we have now reached that moment where the Senate
has had it up to here with all of the secrecy and practice of doing
business in the shadows.
To wrap this up, we are going to have a vote in a few minutes. The
Intelligence Authorization bill, a bill that is vital to America's
national security, is subject to a secret hold. I don't think anything
could make the case for our bipartisan amendment more clearly than the
need to move ahead with this country's vital business in intelligence.
I have talked to Chairman Roberts about this. He wants that bill to
move. It is a bipartisan bill. We have not had a situation since 1978
when we could not move forward on an intelligence bill.
I hope colleagues will finally bring the Senate into the sunshine.
This enormous power that each Senator has is one that will continue,
but if we can prevail on this vote, it will be one that will be
exercised in the sunlight. Each Senator will be held accountable when
they assert this particular power.
I urge my colleagues to vote yes on the Wyden-Grassley-Inhofe
amendment.
I yield back the balance of my time and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The Senator from Mississippi.
Mr. LOTT. Let me clear up one point. I am not sure we are ready to go
to a recorded vote at this moment. I thought maybe we could set it
aside and go to other amendments and have stacked votes later in the
afternoon, allowing Senators to continue committee meetings. However, I
have been notified that maybe someone would object to a unanimous
consent to set it aside so I sent a message back to that Senator: if
you want to object, you better come over here. That is a problem around
here. We send our surrogates over to object, but they are not here. If
he comes, he can object. That is fine. We will try to work with
everyone to try to accommodate everyone. There may be a need for
further discussion.
Let me take a moment to commend the Senator from Oregon and the
Senator from Iowa and now the Senator from Oklahoma for your tenacity.
You have been pecking away at this for years.
Typical of the leadership, there was a time when I was saying, do we
need to go that far; there is a misunderstanding about holds. In fact,
that is a misnomer. There is no such thing. A hold is a request to be
notified when an issue or a nominee will be brought up so we can come
over and speak. The fact is, it ties the leadership's hands because
quite often they say, wait a minute, I can't delay the business of the
Senate to have this Senator come over here and talk at length--which is
his or her right--on a nominee or a Member.
The point I am trying to make, I have tried to work to deal with this
issue of fairness. Senator Daschle and I did work with Senator Biden to
further clarify, what is this thing, a hold? How do I have to comply
with it? We requested that it be put in writing, which, by the way, was
never locked into place. That is one of the reasons I am for this.
We need to make it clearer about how Members do this and what the
requirements are. We do not want to stop the practice of a Senator
being able to file notice that he would like to be able to come over
and discuss an issue.
What I have had a problem with, I do think it has been abused. We
have anonymous hold, we have rolling hold, and it is harder and harder
and harder to try to do the business of the Senate. But the anonymous
part of it is the part that bothers me the most. That is the thrust of
the Rules bill and particularly the bill by the Committee on Homeland
Security and Governmental Affairs. Let's open things, disclose things,
have transparency, make sure the people know what we are up to.
This is, in my opinion, very sinister, where Members can hold up a
nomination, hold up a bill, and not even acknowledge they are doing it.
I point out that all this amendment does is to say the holds must be
in writing and they have to be published in the Record in 3 days.
Is that the thrust of the Senator's amendment?
Mr. WYDEN. The Senator is absolutely right.
Mr. LOTT. What is the threat here? I do think there is a good cause
for late at night, 6 o'clock, you are wrapping up, and all of a sudden
the leadership hits us with, we want to clear 10 bills and a Senator
can say, wait a minute, I want to make sure, What is the cost of this
bill--as the Senator from New Hampshire has been inclined to do. He has
that right. It is appropriate he be able to have time to look at that.
But he ought to then have to put in writing that notice to the leader
so the leader, if nothing else, will not forget it, and then
acknowledge who he is. That is all this does.
I don't know what the vote of the Senate is going to be because some
Members may say they are giving up some of their senatorial
prerogatives. No, you are not; you just can't hide. That is all.
In the spirit of this legislation of openness and honesty, let me
say, this is also an area where some Senators--no one has gotten in
trouble with these holds or used the holds for a response or for some
benefit personally, but the day will come, if we do not watch it,
someone will get in trouble ethically with this procedure.
The leaders may have a different view and I will be very responsive
to their views, but for now, it is time we quit talking about making
things more open and honest and we do it. This amendment would do that.
I plan to support it.
I am advised we do not have an objection to setting aside this
amendment, unless others wish to speak on this amendment.
Does the Senator from New York have a comment on this issue or
another issue?
The PRESIDING OFFICER. The Senator from Mississippi has the floor.
Mr. LOTT. Mr. President, I yield to the Senator from Oregon for a
question.
Mr. WYDEN. Mr. President, I thank my colleague from Mississippi. I
particularly thank him for his extraordinarily supportive statement and
for
[[Page S1881]]
all the help he has given me over this decade. It probably would be my
preference to have a recorded vote at this time, particularly since I
have had the good fortune to have had such a supportive statement from
the distinguished chairman of the Committee on Rules.
Is there a problem with having a recorded vote on the Wyden-Grassley-
Inhofe amendment at this time?
Mr. LOTT. There would be a problem having the vote at this time, just
out of convenience for a number of Senators on both sides who have
other commitments. We would like to perhaps stack votes a little later
in the afternoon. I want to collaborate with the chairman of Homeland
Security and Senator Dodd and Senator Lieberman about exactly what time
we would do that. We could get more work done without interfering with
Senators' schedules.
So, yes, there would be an objection to it right now. But it has
already been locked in and we will have a recorded vote. It will be
first in the sequence whenever we set it up.
Mr. WYDEN. Mr. President, just to wrap this up, that is a very fair
procedure that the Senator from Mississippi has outlined and we will be
happy to accept that.
Mr. LOTT. I ask unanimous consent we set aside the Wyden-Grassley-
Inhofe amendment and go to the next pending amendment.
The PRESIDING OFFICER. Is there an objection?
Mr. SCHUMER. Reserving the right to object, could I speak, before we
set it aside, on this amendment?
Mr. LOTT. I withhold my unanimous consent request at this time, Mr.
President.
The PRESIDING OFFICER. The consent request is withdrawn without
objection.
The Senator from New York is recognized.
Mr. SCHUMER. I commend my colleague from Oregon and my colleague from
Oklahoma for their lone battle on this issue. It is an issue we all
agree with and very much appreciate their hard work.
