[Congressional Record: March 28, 2006 (Senate)]
[Page S2438-S2439]
ELIMINATING SECRET HOLDS
Mr. WYDEN. Mr. President, I am hopeful that shortly the Senate will
be voting on a measure that will take a very significant step forward
by bringing sunshine and public accountability to the Senate.
If you walk the streets of this country and ask someone what a hold
is in the Senate, I don't think you will get 1 out of 100 people who
will have any idea what you are talking about. But the fact of the
matter is, a hold in the Senate is the ability to block a piece of
legislation, block a nomination from being even discussed in the
Senate. As a result of a hold, the Senate will not even get a peek at a
topic that may involve millions of our citizens, billions of dollars,
and affect the quality of life of citizens in every corner of the land.
It would be one thing if the Senator who exercises this extraordinary
tool--this tool that carries so much power with it--if that Senator
would exercise the tool in public and could be held accountable.
Unfortunately, holds are now placed in secret. They are done behind
closed doors. The sponsor of a piece of legislation will not even know
about it. It seems to me a Senate that is serious about lobbying reform
absolutely must stop doing so much of its important business in secret,
behind closed doors.
I will offer later in the day, I hope, with Senator Grassley, Senator
Inhofe, and Senator Salazar, an amendment to bring a bit of sunshine to
the Senate. It is an amendment that would not abolish the hold.
Senators' rights would be fully protected. Senator Collins is in the
Senate, and as a result of the colloquy we had several weeks ago, this
legislation also protects the Senator's right to be consulted on a
piece of legislation. Certainly, that is something all Members feel is
important. If there are bills that affect a Senator's State or that
they have a great interest in, that Senator would have an opportunity
to study the legislation and to reflect on what it means.
What we say in this bipartisan amendment is when a Senator digs in,
when a Senator plans to exercise this extraordinary power, the power to
block a bill or a nomination from ever being heard, we are saying that
Senator has got to be held publicly accountable. What we require is
that a Senator who exercises a hold would have to so state in the
Congressional Record. They could still use their procedural rights to
make sure they have a chance to oppose the legislation and to oppose it
strongly, but they would be identified as the person who was so
objecting.
The intelligence reauthorization bill is now being prevented from
coming to this Senate as a result of a secret hold.
[[Page S2439]]
A lot of Senators give lengthy and eloquent speeches about fighting
terrorism, but now a bill that is vital to national security is being
held up in secret. It has been held up for months and months as a
result of this secret hold. That ought to change.
Certainly, it ought to change if Senators are serious about lobbying
reforms because one of the best ways for lobbyists to work their will
is to have procedures that help them behind closed doors. That is what
the secret hold is all about. It is written nowhere in the Senate
rules, but it has become one of the most significant and powerful tools
a Senator can exercise. It is done without any public accountability at
all.
There has been a bit of irony in the last couple of days about this
legislation. I thought it was going to come up already, given the fact
that we had come back from the recess. I was under the impression that
would be the first order of business. But we could not get to the
bipartisan measure to abolish secret holds because, lo and behold,
there was a secret hold on an amendment to try to get the Senate to do
its business in public. That pretty much says it all. Not only do we
have secret holds on national security legislation, legislation that
would make a real difference in terms of striking a balance between
fighting terrorism ferociously and protecting civil liberties, not only
do we have national security legislation being held up, but even
efforts to bring about basic reforms such as openness and sunshine for
the Senate are being held up as a result of this secret procedure.
I emphasize what the change will mean for the Senate. No longer if
this change is put in place will staff be able to keep secret from
Members an objection; no longer will leadership be the only one to know
about an objection; no longer will it be possible for a Senator to be
kept in the dark about something they have worked on for years and
years. The fact is, Senator Grassley and I have worked on this
legislation for a full decade.
Senator Lott, the chairman of the Rules Committee, has been
particularly helpful in terms of working with us on this measure. There
have been hearings. Senator Byrd, who, of course, knows more about the
Senate rules than anyone in the history of this Senate, has been very
helpful in terms of giving us background about what we ought to do.
This amendment puts the burden on the person who ought to be held
publicly accountable: squarely on the shoulders of an objector. The
person who exercises a hold will be identified and colleagues can
discuss with that person how to move forward in a bipartisan way.
No Senator is going to be stripped of their rights. No Senator is
going to be kept from protecting constituents that have serious
concerns about legislation. But with the right to stand up for your
view and to object to a piece of legislation, there ought to be some
responsibility. There ought to be some accountability.
I find it stunning the Senate would even consider lobbying reform
without an effort to do its business in public. We have already spent
several days on this legislation. Hopefully, it will be completed
shortly. It seems to me one of the most obvious reforms that Senators
ought to be in favor of, if this Senate is serious about reform, is
doing its business in public.
Nowhere in the Senate rules does it say anything about secret holds.
Nowhere is it written down that a Senator can exercise this enormous
power and do it without any accountability at all.
Senator Grassley and I believe it is time to bring some sunshine for
the Senate and for Senators to do the people's business in public.
Secret holds have been the bane of the Senate for decades. Back in the
101st Congress, then-majority Bob Dole said:
I have never understood why Republicans put a hold on
Republican nominees. Maybe I will figure it out some day. I
have been working on it. I have not quite understood it.
In that same Congress, former Senator John Glenn observed:
. . . as one hold would come off, there was agreement
another one would be put on, so that no one really had to
identify themselves. The objecting Senator would remain
anonymous. So much for sunshine in the United States Senate.
Those are the words of one of our most respected colleagues, John
Glenn, words that I hope Senators will remember later in the day when
we will have a chance to vote on a bipartisan amendment to bring some
sunlight to the Senate and some openness in the way the Senate conducts
the public's business.
When we have important national security legislation held hostage
today by a secret hold, that alone says that this Senate needs to
change the way it does business. It ought to do its business in the
open. It ought to do its business in a way that will hold Senators
accountable.
After 10 years, Senator Grassley and I have watched these secret
holds block legislation, block nominations in a way that does a
disservice to all the people we represent.
We are going to have a chance to end this. We are going to have a
chance to ensure that while Senators can exercise their rights and
debate topics that they feel strongly about, they can also be held
publicly accountable.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Burr). Without objection, it is so
ordered.
____________________
Amendment No. 2944
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. I assume Senator Inhofe will have time after I conclude
my 10 minutes and I ask unanimous consent to that effect. He is on the
other side of this issue.
The Wyden amendment provides a new advantage for those who want
bigger and more expensive Government. Senators who want time to study a
bill before granting consent would have to put their names in the
Record as objecting to it even though they may quickly decide they do
not have an objection to the bill.
First, the Senator from Oregon stated that this amendment--and this
is a good example of what happens in the Senate--that this amendment
was being blocked by a secret hold. But there was no secret hold. The
leadership of the Senate knew that I had an interest in participating
in the debate, but I had a meeting at the White House this morning and
so I asked if they could accommodate that and set the debate at a time
I could participate. That apparently was worked out.
Under the Senator from Oregon's amendment, I would have had to submit
a written request to the majority leader in order to participate in the
debate, but I was at the White House and that was not very practical.
Is telling my leader I would like an opportunity to be in the Senate to
debate this issue now an unreasonable request? The Senator from Oregon
has also stated that the intelligence authorization bill is being held
up based on a secret hold. In truth, it is not a secret. I will tell
the Senator who is holding that important intelligence bill: It is the
two Senators from Massachusetts. Senators Kennedy and Kerry have
objected to considering the bill because they want to offer amendments.
Some say they are poison-pill amendments, but they are amendments they
want to offer. So if the Senator has a problem about that, he should
talk to his colleagues. The Senators may say this only applies to
proceeding to a bill. This is an important thing, because in 99 percent
of the cases, proceedings of the bill and passage of the bill happen at
the same time. The bill is called up and asked to be passed by
unanimous consent. It is all the same request. Frankly, the problem
with this bill goes further than the mechanical application. It makes a
statement. It basically says that passing bills is inherently a good
thing, and we should assume any Senator who has never heard of a bill
should consent to it. Anyone who dares not to grant promptly and
immediately any such consent is some scoundrel who needs to be exposed
to misdeeds.
Senator Coburn has offered an amendment that says if we are going to
have this hold amendment, he would offer one that says if you want to
pass a bill and there is no quorum present, and you want to ram it
through with no quorum present, you need to have a petition signed by
100 Senators saying they are prepared to let the bill go through.
Why not? It is not practical, perhaps, but the system is not designed
to be practical. Frankly, it is too easy to pass bills. Bills flow
through this body like water.
I want the American people to know how bills are passed in this
Senate. We were talking about some sunshine here. Let's talk about it.
There is a system we have called a hotline. What is a hotline? In each
Senate office there are three telephones with hotline buttons on them.
Most evenings, sometimes after business hours, these phones begin to
ring. The calls are from the Republican and the Democratic leaders to
each of their Members, asking consent to pass this or that bill--not
consider the bill or have debate on the bill but to pass it. Those
calls will normally give a deadline. If the staff do not call back in
30 minutes, the bill passes. Boom. It can be 500 pages. In many
offices, when staffers do not know anything about the bill, they
usually ignore the hotline and let the bill pass without even informing
their Senators. If the staff miss the hotline, or do not know about it
or were not around, the Senator is deemed to have consented to the
passage of some bill which might be quite an important piece of
information.
So that is the real issue here. The issue is not about holds. The
rules say nothing about holds. Holds do not exist. The issue is
consent. Nobody has a right to have an individual Senator's consent to
pass a bill. They act as though you have a right to get it. You would
expect if you are going to say you have unanimous consent, you have
consent. But that is not always the case.
If staff do not have time to read the bill--some of these bills are
hundreds of pages long--they frequently assume someone else has read
it. Staff in the Senate offices do not read all these bills, and they
go back to whatever they were doing before the hotline phone rang.
Presumably, some committee staffer has read the bill at some point
along the way, but in almost no case have actual Members of the Senate
granted their intentional consent to the bills that pass during the
day's wrapup that we often see late into the night on C-SPAN.
In many cases, even Senators sponsoring the bill have never read it,
unfortunately. Committee reports are filed on bills. Very few staff
have read the committee reports. How do I know about this? I have the
thankless task of chairing the Senate Steering Committee. One of our
commitments is to review every bill that is hotlined in the Senate. My
staff actually reads them. It is a service to my colleagues, I suggest.
They read the CBO scores which tell how much the bill costs the
taxpayers. A lot of times they do not want you to know that. Some
committee, group, or someone has moved a bill on the floor--they move
it along--and nobody has read the score. Many contain massive, new
spending programs. Some bust the budget. We think Senators who are
looking out for the taxpayers and taking the time to study bills should
have the same rights as Senators who are willing to let big spending
bills pass without reading them. This amendment is not good government.
It will make it more likely that bills will pass in the middle of the
night filled with pork and who knows what else.
The current process established by the two leaders provides for 72
hours for Senators to withhold consent and to read a bill. Beyond that,
the objections become public. Under this amendment, if a Senator in an
offhand conversation with the leader says, ``I
[[Page S2455]]
think we ought to take a hard look at this bill,'' does that mean his
name should be printed in the Record? That is not workable. If I am on
the floor, and the leader asks me if we ought to go to such and such a
bill, and I say, ``No, don't do that, I think something else should go
first,'' do I then immediately have to go to the floor and publish that
in the Record?
According to this resolution, any communication with the leader
suggesting we not proceed to a bill would need to be printed in the
Record and submitted to the leader in writing. However, if I
communicate to the leader that we should proceed to some big spending
bill, I can do that in secret. This gives a new advantage to those who
want to pass legislation without review.
Now, I take very seriously holding up a bill. We stay on our team,
and we look at the matter promptly and try to give an honest response.
And if we have a problem with a clause or two in a piece of
legislation, we share that with the Senators who are promoting the
legislation. Usually an agreement can be reached, and usually the
legislation is cleared, anyway, without any significant delay.
Line 4 of the Wyden amendment says:
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 [blank], intend to object to proceeding to
[blank], dated [blank].''
If a Senator tells their leader on the phone they have concern with a
bill that was offered that night, must they quickly run down to his
office and hand the leader a piece of paper? This says it must be
submitted in writing; otherwise, the leader cannot recognize it.
If the leader decides against proceeding to the bill, does that mean
he has violated the rule?
How can we prove that the leader did not simply change his mind, but
rather that he illegally recognized an oral hold, which was not
submitted in writing?
Who is to make such a determination?
Is the Parliamentarian going to be put in the uncomfortable position
of trying to divine the motivations of a party leader?
I am not sure what the purpose of the 3 days is, but here is what its
effect is:
If a bill is hotlined at 7:30 at night, and the leaders say it will
be passed at 7:45 unless there is an objection, and my staff calls them
to say please do not proceed, we would like to review the bill, rather
than reading the bill, they would have to run to the leader's office
with a piece of paper saying we object to the bill.
Then, let's say they run back to the office, start reading, and after
review, the bill looks fine. Let's say they even call back within the
15-minute window that was given. The bill passes that night. The next
day it passes the House, and is signed by the President. It is now law.
On the third day, I would still need to insert a statement in the
Congressional Record saying ``I, Senator Jeff Sessions, intend to
object to proceeding [blank], dated [blank].''
I intend to object to a bill that has already been signed into law?
The amendment has been so poorly drafted that it is not even clear
what it does. This is what we are dealing with.
This poorly drafted amendment is intended to stack the deck, in favor
of other poorly drafted legislation passing in the middle of the night
with little or no review.
Let's look at section (c) line 18:
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 [blank], do not object to proceeding to [blank],
dated [blank].
This is the flip side: Maybe you looked at the bill and do not like
it, but are willing to let it pass by a voice vote.
Now, to get the ``scarlet letter'' I removed, you need to put a
statement into the Record saying you do not object to the bill, which
may not be altogether true.
Further, what if you simply want to offer an amendment, or debate,
but the leadership wants to pass the bill clean. How does this bill
apply?
I suppose one interpretation is it would not apply at all, because it
only purports to apply to ``proceeding to a bill.''
What if you want to offer a thousand amendments? What then? What if
you prefer to proceed to a different version of the bill?
What if you would simply like a rollcall vote on the motion to
proceed, or would like time to debate, but the leadership does not want
to grant you that. Technically, you are objecting to proceeding under
those circumstances.
I could stand here for hours discussing all the many ways this
amendment is going to damage the Senate, and the many ways this
amendment is absolutely worthless as a tool to prevent blocking of
legislation in secret.
But what I object to most is that this amendment says passing
legislation is always preferable to slowing it down, that letting a
bill pass is good no matter how poorly drafted, how costly, how late in
the evening, or how few Senators have studied or even heard of the
bill.
How much pork is there? Passing bills is good: In many cases, that is
not correct.
There is a widely quoted story about the ``coolness'' of the Senate
involving George Washington and Thomas Jefferson. Jefferson was in
France during the Constitutional Convention.
Upon his return, Jefferson visited Washington and asked why the
Convention delegates had created a Senate. ``Why did you pour that
coffee into your saucer?'' asked Washington. ``To cool it, `` said
Jefferson. ``Even so,'' responded Washington, ``we pour legislation
into the senatorial saucer to cool it.''
The Framers intended the Senate to deliberate, to thoughtfully review
legislation, not be a rubber stamp.
This amendment says those Senators who are willing to grant consent
to legislation they have never read or have perhaps never even heard
of--those are the good Senators.
But those Senators who dare to say: I would like time to read this
legislation, to see how much it costs, to see whether it is within the
national interests--they are the troublemakers. These scoundrels need
to be exposed to the public.
So, in summary, here is where we are.
Passing midnight spending boondoggles with two Senators in the
Chamber: Good. Reviewing legislation: Bad. Objecting to big spending
legislation: Really bad.
Lobbyists must be thrilled with this. Lobbyists who are pushing
special-interest legislation will now have a ready-made target list.
All they need to do is get the leadership to hotline the legislation,
and within 3 days they will know who they need to talk to or jump on or
``sick the dogs on.''
I believe we need to return to the ``cooling'' Senate, not a
``freezing'' Senate, where obstruction is the rule, nominees are
blocked endlessly; not a ``greased'' Senate, where bad legislation
passes at lightning speed late at night with no time for review, but a
Senate where Senators are encouraged to take the time to pick up a bill
and read it, to weigh the consequences for the American taxpayers.
This amendment runs directly contrary to the spirit of reform this
bill purports to address.
I urge my colleagues to oppose the amendment.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SESSIONS. Mr. President, I see several of the sponsors of the
amendment here. Probably they disagree with some of my views, but I
think they are worthy of their consideration.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, parliamentary inquiry: How much time is
available on my side? My understanding is we have 10 minutes.
The PRESIDING OFFICER. The Senator from Oregon controls 10 minutes.
Mr. WYDEN. Mr. President, it is my desire to yield the first 3
minutes to Senator Inhofe, the next 3 minutes to Senator Grassley, and
then I will
[[Page S2456]]
speak. I thank my friend from Oklahoma.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, first, let me say to my friend from
Alabama, I do not think we have ever been in disagreement on anything.
I have a little different take on this issue than he does and a little
different background because of an experience I had when I served in
the other body.
First, I think realistically, looking at this, you may say ``in
writing,'' but if you call your leader and tell him, ``I plan to go
ahead and object to this,'' and he knows it is going to come in
writing, unless you don't get along with the leader very well, I don't
think that would be a real serious problem. But I do agree with the
Senator from Alabama that passing laws is not necessarily a good thing.
My feeling is we have too many laws, not too few laws. I have said that
many times.
But let me share with you an experience I had in the other body. When
I was first elected in 1986 to the House of Representatives, I found
there was a process used to keep the signatures of a discharge petition
from being open to the public. So there could be something very
popular. For example, a gun control bill might not be popular in West
Texas, but there might be a West Texas Democrat whose party tells him
for the national scene, ``We want lots of gun controls, and I know it
is not popular in the State, but there is a way you can go home and say
you opposed gun controls and at the same time you can get by with
appeasing the leadership.''
That is what they did. They would put the discharge petition in the
drawer of the Speaker's desk, and you could not get it out unless a
majority of people signed the discharge petition. Consequently, they
would go ahead and tell people they had signed it when, in fact, they
had not.
I had a one-sentence bill that totally reformed that. It stated that
all signatures on a discharge petition shall become public record. We
actually had seven editorials by the Wall Street Journal. We had all
these things saying: Finally, there is light.
All I want--all I want--is to be able to have everyone being
accountable for what they are saying. I have two holds right now, and I
have said publicly that I am the one who has the holds. I have never,
in the 12 years I have been here in this body, not specifically stated
that I had holds when I did. So I think that is the main thing. There
are similarities between the situation that occurred in the House, and
I agree with Reader's Digest, the Wall Street Journal. They said that
was the greatest single reform in the last 60 years.
So when I first came to this body, I made this statement: that it
appeared to me that being able to put on holds without being
accountable is a very similar practice to the inability of knowing what
the signatures were on discharge petitions. Consequently, I started
back 12 years ago working on this issue. I am very happy to join
Senator Wyden and Senator Grassley in what I consider to be a reform
that is badly needed in the Senate.
Mr. President, I ask unanimous consent that a November 1994 article
in Reader's Digest by Daniel Levine be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Reader's Digest, November 1994]
How the Trial Lawyers Finally Met Defeat
A story of democracy and Capitol Hill
(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 plane
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 statute 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.
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 Capitol 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 reelection 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 Capital 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 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 Democrats 82-
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,
[[Page S2457]]
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
needed 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 way 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
consumers, 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.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Iowa.
Mr. GRASSLEY. Mr. President, thank you. And I thank Senator Wyden for
his leadership and the time.
Everything this body has heard the Senator from Alabama say about
what is wrong with this piece of legislation is entirely inaccurate.
Everything he said we need to do to study bills--to hold them up until
we get a feel about everything in a bill before enactment by this
body--this amendment, which brings transparency to holds, does not in
any way prevent any of that from happening. All it simply says is, if
you are going to put a hold on legislation, you ought to have guts
enough, not be a sissy that the public might find out who you are, why
you are holding something up. State for the entire country why you
think this person or this bill ought to be held up in the Senate. You
can hold it up for a year. You can hold it up for 1 day.
I have been putting things in the Record of why I put holds on bills,
just as this amendment requires, for several years. And I can assure
you, not one of my colleagues has beaten me up because they knew who I
was. Not one of my colleagues has bloodied my nose. Not one of my
colleagues has given me a black eye. Not one of my colleagues has done
anything. It does not hurt. You can be a Senator. You can be out in the
open. You can be transparent and still do the job you need to do.
But after all, this is the Senate. The public's business ought to be
public. That is what this legislation is all about. But it also has
something to do with the practical workings of the Senate. If somebody
does not like a bill you propose, and they want to slow it up, you can
sit down and talk to them. Now you do not even know who they are, in
many instances. If you are going to do business, you have to know who
to talk to. Being a part of a collegial body, as we are, talking to
each other is how you get things done and move the ball along.
It is about open government. It is about reducing cynicism and
distrust of public officials. It is about public accountability. It is
about building public confidence. It is about making sure that as to
what is being done here, the public knows who is doing it and why they
are doing it. I do not see why there can be any opposition to this
amendment.
A hold is a very powerful tool and must be used with transparency. I
believe in the principle of open government. Lack of transparency in
the public policy process leads to cynicism and distrust of public
officials.
There is no good reason why a Senator should be able to
singlehandedly block the Senate's business without any public
accountability. The use of secret holds damages public confidence in
the institution of the Senate.
Our amendment would establish a standing order of the Senate
requiring Members to publicly disclose when they place a hold on a bill
or nominee. For several years now, I have made it my practice to insert
a notice in the Congressional Record whenever I place a hold.
Under our proposal, disclosing holds will be as simple as filling out
a cosponsor sheet and Senators will have 3 days to do it.
This proposal was drafted with the help of Senators Lott and Byrd,
who as former majority leaders know how this body operates and how
disruptive secret holds can be to the Senate's business. Senator
Stevens has expressed his concerns about the use of secret holds. It
says a lot that the longest-serving Members of this body oppose the use
of secret holds and see them as a real problem.
If Senators support the goal of the underlying bill to increase
legislative transparency and accountability, then they should support
this amendment.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Oregon.
Mr. WYDEN. Mr. President, I yield to Senator Lott.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. LOTT. Mr. President, very briefly, I rise in support of this
amendment. I think the misuse of the hold in the Senate has become a
fundamental problem. I do not see how anybody could support the concept
of secret holds.
Now, this may drive holds into some other category, but I think it is
a step
[[Page S2458]]
in the right direction. I commend Senator Wyden and Senator Grassley
for offering it.
This proposal is an experiment in making the Senate and Senators more
accountable to their colleagues and to the American people. This
proposal addresses the issue of anonymous holds that Senators use to
prevent consideration of legislation and nominations. This amendment
would place a greater responsibility on Senators to make their holds
public.
It requires that the majority and minority leaders can only recognize
a hold that is provided in writing. Moreover, for the hold to be
honored, the Senator objecting would have to publish his objection in
the Congressional Record, 3 days after the notice is provided to a
leader.
I believe that holds, whether anonymous or publicly announced, are an
affront to the Senate, the leadership, the committees, and to the
individual Members of this institution.
This amendment does not eliminate the right of a Senator to place a
hold. Some day, the Senate may decide that holds, in and of themselves,
are an undemocratic practice that should no longer be recognized.
Secret holds have no place in a publicly accountable institution. A
measure that is important to a majority of the American public and a
majority of Senators should not be stopped dead in it's tracks by a
single Senator. And when that Senator can hide behind the anonymous
hold, democracy itself is damaged.
How do you tell your constituents that legislation they have an
interest in, legislation that has been approved by the majority of a
committee, is stalled and you don't know who is holding it up? What
does that say about this institution?
I think the secret hold should have no place in this institution, and
I urge my colleagues to support this amendment.
Mr. DODD. Mr. President, I understand this amendment requires public
disclosure of certain holds--namely, those that rise to the level of
expressing an intent to object to proceeding to a measure or matter.
Any such objection would have to be submitted in writing and
disclosed in the Congressional Record and printed in the Senate
calendar of business. Quite frankly, if a Member's objection rises to
that level, it is probably appropriate to publicly disclose such.
But the term ``hold'' is used to apply to a much broader form of
communication between Members and the leader. A hold is generally
considered to be any communication in which a Member expresses an
interest in specific legislation and requests that the Member be
consulted or advised before any agreement is entered with regard to the
issue.
In that sense, a hold is a Senate mode of communication, rather than
a procedural prerogative, and when used to communicate a Member's
interest in a matter, it is more of an informal bargaining tactic, not
an intent to derail or delay consideration of a measure.
Such informal communication is not only important to the workings of
this body, but it facilitates the development of unanimous consent
requests and facilitates the consideration of legislation.
In some respects, such informal holds act much like the Rules
Committee proceedings in the House whereby Members present their
position with regard to offering amendments to legislation.
There is no such process in the Senate and often times informal
holds, or consent letters, are the only means by which the leadership
knows who has an interest in an issue and needs to be consulted in
order to craft a unanimous consent agreement.
This amendment does not affect such informal consultation and so will
not impede the ability of the leadership to move the business of the
Senate. However, when the communication rises to the level that a
Member will object to proceeding, it is appropriate that it be
disclosed.
Consequently, consistent with the purpose of the bill before us, this
amendment would provide greater transparency of the legislative process
and increase public confidence in the outcome.
I urge adoption of the amendment.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I think Senator Lott, Senator Inhofe, and
Senator Grassley have said it very well. This amendment is about a
simple proposition; and that is, the Senate ought to do its most
important business in public, where every Senator can be held
accountable. We have offered this bipartisan amendment to eliminate
secret holds on the lobbying reform legislation for the same reason
Willy Sutton robbed banks: Banks are where the money is. And secret
holds are where the power is.
Secret holds are one of the most powerful weapons available to
lobbyists. I expect that each of our offices has gotten at least one
call asking if the office would put a secret hold on a bill or nominee
in order to kill it without any public debate, and without a lobbyist's
fingerprints anywhere.
Getting a Senator to put a secret hold on a bill is like hitting the
lobbyist jackpot. Not only is the Senator's identity protected, but so
is the lobbyist's. A secret hold lets a lobbyist play both sides of the
street and gives lobbyists a victory for their clients without
alienating potential or future clients.
In my view, secret holds are a stealth extension of the lobbying
world. It would be particularly ironic if the Senate were to claim it
was adopting lobbying reform legislation without doing away with what
is one of the most powerful tools available to a lobbyist.
This has been a bipartisan effort. It has gone on for literally a
decade. Senator Lott, to his credit, tried a voluntary approach with
Senator Daschle. We want to emphasize--for example, the Senator from
Maine, Ms. Collins, was involved in this--that this in no way
eliminates the right of a Senator to have a consult, to have the
opportunity to look at legislation, to review it when it comes out of
committee. A Senator can seek that. In my mind, a consult is similar to
a yellow light that says proceed with caution. A hold, on the other
hand, is similar to a red light, a stop light. It is when a Senator
digs in and says they are going to do everything they possibly can to
block a piece of legislation from going forward.
I want to protect Senators' rights, but Senators' rights need to be
accompanied by responsibilities. We are talking about legislation that
can involve billions of dollars, millions of our citizens, and the
public's business ought to be done in public.
What this amendment does is ban a staff hold, the so-called rolling
hold where the hold is passed secretly from Senator to Senator. And
when a Senator exercises the power of a hold to deal with an issue that
is important to them, in the future, they will be held publicly
accountable.
This is long overdue. Senator Dole, when he was majority leader,
spoke out on this, more eloquently than perhaps any of us are doing
today. Senator Grassley, myself, Senator Inhofe, Senator Lott believe
that it is time to bring sunshine to the Senate and for the Senate to
do the people's business in public. I can't think of a more appropriate
place to do it than on the lobbying reform bill we are working on
today.
I urge my colleagues to pass the amendment and to bring some sunshine
to the Senate.
The PRESIDING OFFICER. All time has expired.
Mr. WYDEN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Mr. President, shortly we will vote on the Wyden-
Grassley amendment. First, we will vote on the Collins-Lieberman-McCain
amendment which is the second-degree amendment. I applaud the
initiative of Senators Wyden and Grassley. When this amendment first
came up, I spoke in favor of it. I believe we do need to end the
practice of secret holds.
I ask unanimous consent to be added as a cosponsor to the Wyden-
Grassley amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Vote on Amendment No. 2944
The PRESIDING OFFICER. The question is now on agreeing to the Wyden
amendment No. 2944. The yeas and nays have been ordered. The clerk will
call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from South Carolina (Mr. Graham).
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) is necessarily absent.
I also announce that the Senator from West Virginia (Mr. Byrd) is
absent due to death in the family.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 84, nays 13, as follows:
[Rollcall Vote No. 78 Leg.]
YEAS--84
Akaka
Alexander
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brownback
Burns
Cantwell
Carper
Chafee
Chambliss
Clinton
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
Dayton
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Enzi
Feingold
Feinstein
Grassley
Hagel
Harkin
Hatch
Hutchison
Inhofe
Inouye
Isakson
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McCain
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Salazar
Santorum
Sarbanes
Schumer
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Talent
Thomas
Vitter
Voinovich
Warner
Wyden
NAYS--13
Allard
Bunning
Burr
Coburn
DeMint
Ensign
Frist
Gregg
Kyl
McConnell
Sessions
Sununu
Thune
NOT VOTING--3
Byrd
Graham
Rockefeller
The amendment (No. 2944) was agreed to.
Mr. REID. Mr. President, I move to reconsider the vote.
Mr. FRIST. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The majority leader.
[Congressional Record: March 28, 2006 (Senate)]
[Page S2461-S2462]
HOLDS ON INTELLIGENCE AUTHORIZATION
Mr. KERRY. Mr. President, earlier today, my colleague from Alabama,
Senator Sessions, alleged that I have a ``hold'' on the Intelligence
Authorization Act. Nothing could be further from the truth.
I know that in the heat of debate on the Senate floor, words can
sometimes come out faster than a Member might intend, so I harbor no
ill will toward my colleague. But in the interest of accuracy, I wish
to set the record straight.
Last autumn, many of us were shocked to read allegations in the press
of secret clandestine prisons operated around the world by the CIA as
part of the war on terror. Congress has a responsibility to perform
oversight in all things, including the intelligence community's conduct
in the war on terror. In discussing this amendment last fall, I said,
and I repeat today, no one is passing judgment on whether these alleged
facilities should be closed. We are simply saying that Congress--and
specifically the duly established intelligence committees of the House
and Senate--need to know what is going on.
On November 10, 2005, I offered an amendment to the National Defense
Authorization Act requiring the Director of National Intelligence to
provide a secret report to the Intelligence Committees of the House and
Senate on the operation, past or present, of these alleged facilities.
It would also have required a report on the planned disposition of
those allegedly held at these facilities and a determination as to
whether interrogation techniques at these facilities were consistent
with U.S. obligations under the Geneva Convention and the Convention
against Torture.
In debating this amendment, I was delighted to work with my
colleague, Senator Roberts, the chairman of the Senate Select Committee
on Intelligence, and his vice chairman, Senator Rockefeller, to perfect
the text of the amendment so they could support it. It passed with
overwhelming bipartisan support by a vote of 82 to 9.
About 1 month later, the House of Representative voted 228 to 187 to
urge
[[Page S2462]]
House-Senate negotiators to include the amendment in their conference
report. The House Armed Services Committee, however, was concerned that
the amendment was beyond the scope of their jurisdiction and the
provision was stripped out in conference.
I turned then to the Intelligence Authorization Act and again worked
with Senator Roberts and Senator Rockefeller to prepare the amendment
anew for inclusion in that legislation. The amendment was identical to
the provision passed previously in the Senate and endorsed by the House
and was cleared by Senator Roberts for passage by unanimous consent.
But someone objected to the unanimous consent request to pass this
vital bill by voice vote. Since that time, the legislation has lingered
because someone doesn't want a vote on this amendment or the amendments
offered by my colleague from Massachusetts, Senator Kennedy.
I know my friend from Alabama voted against my amendment when it was
on the floor in November. I am sure he would vote against it again. We
can agree to disagree on this issue, but his assertion that I have
placed a hold on the intelligence bill is simply not true.
Mr. KENNEDY. Mr. President, earlier today, the Senator from Alabama,
Senator Sessions said that Senator Kerry and I objected to Senate
consideration of the intelligence authorization bill because we wish to
offer amendments.
In fact, neither Senator Kerry nor I have objected to this bill and
no other Democrat has objected to considering it. The bill is cleared
on the Democratic side. That means an unidentified Republican Senator
or Senators have placed a hold on the bill and are preventing the
Senate from considering it.
I do have two amendments to the bill. My first amendment would
require the administration provide to the Intelligence Committee with
the presidential daily briefs on Iraq from 1997 to the first day of the
Iraq war as part of the committee's investigation on the use of prewar
intelligence. I would certainly be willing to support a time agreement
allowing reasonable debate and a vote on the amendment.
My second amendment would guarantee that detainees held by the
intelligence community would be treated humanely, and that treatment
would be verified independently.
Apparently, to prevent debate on this very important issue, a
Republican Senator is willing to let the whole intelligence bill fail.
That's an outrage.
It's important for the Senate to approve the intelligence
authorization bill, and it's important for the Senate to get to the
bottom of the abuse of intelligence the administration used to justify
war.
____________________
