Porkbusters is doing some great work trying to expose the secret holder of a transparency in government bill. But with all the excitement over outing the holder, there appears to be momentum building to abolish the secret hold in general. On its face, that seems to make sense. But conservatives should rethink abolishing the secret hold.

More often than not it is conservatives — anti pork, limited government types — who employ the secret hold. They use the hold to slow down legislation that is incessantly offered by liberals in the Senate. Legislation that would appropriate x amount of billions of dollars to this or that socially acceptable and politically popular cause is often the target of these holds. Why? because without a hold the bill goes to the Senate floor and passes with unanimous consent for fear of opposing a politically popular piece of legislation that is often either not constitutional or further bloats the federal government. In this case, unamous consent is often anything but…it is more like unanimous ignorance.

Secret holds should not be employed at length and indefinitely, but they should be used to slow down bad legislation (and it seems as if 90 percent of what is being passed for as legislation these days qualifies as such). Furthermore, as Porkbusters is demonstrating, secret holds can and will be smoked out if the public outcry is strong enough.

I commend to you a floor speech by Alabama Senator Jeff Sessions in which he defends the practice. You can read it in the extended section.

UPDATE: I didn’t have time to write this earlier, but here are two more thoughts on this issue.

In many instances, secret holds increase transparency and the ability of the blogosphere specifically to shine light on the legislative process. When this fall in anticipation of the elections a liberal Senator offers legislation to fund a 2 million dollar new low income community center in his state, an anonymous hold can be placed on this legislation. The anonymous holder would place the hold because he knows that this is just an added expansion of the federal government and that it has no business passing the Senate because it is purely political in nature. The holder would do so anonymously because he most likely would not want to deal with the deluge of demagoguery that would come his way should his hold be public. In the meantime, the holder and his staff can use backchannels to inform the conservative bloggers and the porkbusting conservatives about the pending taxpayer ripoff. Hopefully, because the holder bought bloggers an extra couple of weeks this bill would fall on the merits. Transparency is now present where it would not have been had the bill been placed on the hotline sheet and passed by unanimous consent.

Speaking of the hotline sheet, this appears to be the bigger problem. Every evening that the Senate is in session offices get a phone call from the Senate cloakrooms. That phone call lists all the bills on the hotline sheet that are to be passed by unanimous consent every night. The Senator’s staff must in rapid fashion determine whether anything objectionable is on the sheet. If they do not object, everything passes unanimous consent — or secret consent.

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

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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.

This entry was posted on Tuesday, August 29th, 2006 at 11:47 am and is filed under Congress, pork. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.