Citizens for Responsibility and Ethics in Washington (CREW), a Washington, DC-based watchdog group, recently called upon the Senate Committee on Ethics to investigate the ongoing use of secret holds. The organization contends that senators have failed to abide by Section 512 of the Honest Leadership and Open Government Act of 2007 (HLOGA), which ended the use of secret holds. The group requested the committee discipline senators from both parties who have failed to abide by the procedures, as well as issue guidance to govern future conduct.

In the House, where strict majority rule prevails, the order of business is controlled by the Speaker, in consultation with the majority party leadership and the majority-dominated Committee on Rules. The Senate lacks such a centralized structure, and much of the chamber’s business proceeds by unanimous consent. Holds are among the numerous procedural tools available in the Senate to ensure, ostensibly, that the minority is represented. Officially, a hold is simply a “notice of intent to object to proceeding” without actually objecting, which is used to block votes, as a bargaining tactic to gain concessions, or to buy time to study legislation. Under a secret hold, a senator informs his or her party leader, who informs the Majority Leader that the senator objects to proceeding, but the rest of the Senate and the public are left in the dark as to the identity of the senator placing the hold and the reasons for the hold.

The relevant section of HLOGA was passed in 2007 to bring transparency and accountability to the use of holds by prohibiting their secret use. As CREW explains, the new procedure works as follows:

(1) a colleague objects to a unanimous consent request on behalf of an unnamed senator; (2) that senator must then submit a “notice of intent to object” letter to leadership explaining his objection; (3) within six days the senator must place the notice, with his name, on the appropriate Senate calendar, under a newly created section.

No new rule or standing order, nor any enforcement mechanisms, were created by the legislation, and subsequently, it relies on self-compliance. CREW found that only twice has the new procedure been followed, whereas for numerous nominations and bills since HLOGA was signed into law, secret holds have continued.

In its request for investigation, CREW argued:

The Senate Ethics Manual provides that “[c]ertain conduct has been deemed by the Senate in prior cases to be unethical and improper even though such conduct may not necessarily have violated any written law, or Senate rule or regulation.” Such conduct has been characterized as “improper conduct which may reflect upon the Senate.” This rule is intended to protect the integrity and reputation of the Senate as a whole.

HLOGA was passed to bring greater honesty and openness to government writ large, and Section 512 was designed to bring such transparency to the Senate itself. The requirements to publicly announce holds and the reason why they were placed can restore the hold as a legitimate tool to air concerns of the minority, rather than simply as a tool of willful obstructionism. With clarity on why the hold is being placed and by whom, the Senate may choose to address the concerns raised and then continue its business without undue delay.

The Committee on Ethics is responsible for ensuring that Senate procedures do not violate the laws that the Senate itself has passed. Neither the committee as a whole, nor Sens. Barbara Boxer (D-CA) or Johnny Isakson (R-GA), the chair and vice-chair, respectively, has issued any comment. It also seems unlikely the committee will take comprehensive action on this issue without greater pressure, as each branch of government is notorious for poor self-policing.