[Congressional Record: April 29, 2010 (Senate)]
[Page S2787-S2788]
                      


                      SECRET HOLDS ON NOMINATIONS

  Mrs. McCASKILL. Madam President, I came to the floor of the Senate 
last Tuesday to make 74 unanimous consent motions to trigger a law this 
body voted for by a vote of 96 to 2 back in January of 2007, and this 
law says that once a unanimous consent motion is made for a nomination, 
that people who are secretly holding the nomination must come out into 
the sunlight.
  The law requires that 6 days after that motion is made, whoever is 
holding the nominee must identify themselves and, in fact, that must be 
published in the Congressional Record. Tomorrow would be the day for 
publication for all the dozens of different nominees being held up by 
who knows who for who knows what reason.
  I wished to make sure the leaders of both parties were aware that 
this time had run and, today, I will ask unanimous consent that a 
letter I sent to the minority leader and the majority leader 
acknowledging that the rule has been triggered, with the list of the 
various nominees, asking that they make sure the Members of their party 
have, in fact, come forward and identified themselves for the Record 
tomorrow.
  I ask unanimous consent that the letter I sent to Leader McConnell 
and Leader Reid be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                   Washington, DC, April 29, 2010.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate,
     The Capitol, Washington, DC.
       Minority Leader McConnell: Last week I went to the Senate 
     floor to raise the issue of ``secret holds'' and to call 
     attention to the need for openness and transparency within 
     the United States Senate. As you know, a secret hold refers 
     to the practice where one member of the Senate puts an 
     anonymous hold on a nominee or legislation without publicly 
     raising their objections. In spite of efforts in 2007 to end 
     this practice, we now know that secret holds remain the 
     status quo in the Senate. While efforts are being made to 
     strengthen this rule and eliminate secret holds, I am 
     concerned that Senators continue to ignore the current 
     requirements for disclosure of holds.
       Under the existing rule, after a unanimous consent request 
     is made to confirm a nomination or pass legislation, the 
     Senator with objections to the particular measure or nominee 
     must notify their party leader and then submit a notice of 
     intent specifying the reasons for their hold. Within six-
     session days of the unanimous consent request, the notice 
     must be printed publicly in the Congressional Record. The 
     rule is clear that it is incumbent upon the leaders of each 
     party to enforce the rules should members fail to comply.
       Today marks the sixth session-day since I made seventy-four 
     unanimous consent requests to confirm the non-controversial 
     nominations on the Senate Executive Calendar (a complete list 
     is attached). These nominees were reported out of committee 
     by voice vote or by a unanimous vote of the committee and 
     have no known opposition. To date, there have not been any 
     notices filed in the Congressional Record despite the fact 
     that all seventy-four motions were objected to by Senator Kyl 
     on behalf of his Republican colleagues. While, several of 
     these nominations have since been confirmed by the Senate, 
     the bulk of the nominations remain stalled without any public 
     notification.

[[Page S2788]]

       Therefore, I write today to ask if you have been notified 
     by any member that he/she has objections to any of the 
     confirmation requests I made last week. If so, I urge you to 
     enforce the member's obligation to place a public notice in 
     the Congressional Record stating their objection. Should 
     there be no known opposition to these nominees I ask that 
     they be immediately confirmed by unanimous consent of the 
     Senate.
       Thank you for the consideration of this request. Should you 
     or your staff have any additional concerns or questions, 
     please feel free to contact Nichole Distefano of my staff at 
     [email protected]
           Sincerely,
                                                 Claire McCaskill,
     United States Senator.
                                  ____



                                                  U.S. Senate,

                                   Washington, DC, April 29, 2010.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     The Capitol, Washington, DC.
       Majority Leader Reid: Last week I went to the Senate floor 
     to raise the issue of ``secret holds'' and to call attention 
     to the need for openness and transparency within the United 
     States Senate. As you know, a secret hold refers to the 
     practice where one member of the Senate puts an anonymous 
     hold on a nominee or legislation without publicly raising 
     their objections. In spite of efforts in 2007 to end this 
     practice, we now know that secret holds remain the status quo 
     in the Senate. While efforts are being made to strengthen 
     this rule and eliminate secret holds, I am concerned that 
     Senators continue to ignore the current requirements for 
     disclosure of holds.
       Under the existing rule, after a unanimous consent request 
     is made to confirm a nomination or pass legislation, the 
     Senator with objections to the particular measure or nominee 
     must notify their party leader and then submit a notice of 
     intent specifying the reasons for their hold. Within six-
     session days of the unanimous consent request, the notice 
     must be printed publicly in the Congressional Record. The 
     rule is clear that it is incumbent upon the leaders of each 
     party to enforce the rules should members fail to comply.
       Today marks the sixth session-day since I made seventy-four 
     unanimous consent requests to confirm the non-controversial 
     nominations on the Senate Executive Calendar (a complete list 
     is attached). These nominees were reported out of committee 
     by voice vote or by a unanimous vote of the committee and 
     have no known opposition. To date, there have not been any 
     notices filed in the Congressional Record despite the fact 
     that all seventy-four motions were objected to by Senator Kyl 
     on behalf of his Republican colleagues. While, several of 
     these nominations have since been confirmed by the Senate, 
     the bulk of the nominations remain stalled without any public 
     notification.
       Therefore, I write today to ask if you have been notified 
     by any member that he/she has objections to any of the 
     confirmation requests I made last week. If so, I urge you to 
     enforce the member's obligation to place a public notice in 
     the Congressional Record stating their objection. Should 
     there be no known opposition to these nominees I ask that 
     they be immediately confirmed by unanimous consent of the 
     Senate.
       Thank you for the consideration of this request. Should you 
     or your staff have any additional concerns or questions, 
     please feel free to contact Nichole Distefano of my staff at 
     [email protected]
           Sincerely,
                                                 Claire McCaskill,
                                            United States Senator.

  Mrs. McCASKILL. Madam President, we have gone back and looked at the 
Executive Calendar from a historic perspective. At the beginning of 
this week, we had 84 pending nominations. At the exact same time in 
President Bush's Presidency, we had eight. That is what we call a 
lopsided score--84 to 8. Of the 49 nominations we have voted on as a 
body since President Obama took office, 38 of them were confirmed by 
more than 70 votes. That is a pretty lopsided margin. Twenty of them 
were confirmed by more than 90 votes.
  I am confident that if we took the time--which I think may be the 
desire of my friends on the other side--to file cloture and go through 
individual votes on all these nominees, the vast majority of them would 
receive those kinds of lopsided confirmations. This is a game we need 
to quit playing. The secret hold needs to end.
  I have written some colleagues of mine, including Senator Mark Warner 
and Senator Whitehouse, and we have composed a letter--and we asked our 
colleagues to sign it--saying we will no longer participate in the 
secret hold. No more secret holds for us. We don't need the law to tell 
us we only have 6 days to secretly hold. We have asked in the letter 
that the secret hold be abolished. There is not a good reason for it. 
There isn't. Why does anything such as that need to be a secret? It is 
something that needs to be done publicly. The people whom everyone 
works for need to know why they are holding up a nomination or blocking 
a bill. The secrecy needs to stop.
  You can hold somebody; it is your prerogative as a Senator to hold a 
nominee. Work against that nomination. Try to defeat them in committee. 
Keep in mind that all these nominees came out of committee without an 
objection--no objection in committee. If you want to object, that is 
your prerogative. Come out and tell the world why this is the wrong 
person for the job but don't hide. Don't hide.
  I will be watching with interest tomorrow the Congressional Record. I 
am very worried we are going to have the old switcharoo, which means if 
you withdraw your hold in 6 days, then you can hand it off to somebody 
else. You can say: I no longer have a secret hold, and then you whisper 
to your buddy: Why don't you do it now and then we will have 6 more 
days and then another 6 days.
  I wish to serve notice that I will be making these unanimous consent 
requests every time there is a secret hold, so anybody who does it is 
only going to have 6 days. Seriously, if we start the switcharoo and 
continue to go week after week without knowing who is holding these 
people or why, that is when people should get angry. That means they 
voted for a law that they had every intention of evading. People are 
mad enough at us. That is liable to get them over to the ``flat 
furious'' category if we go into that territory.
  I am hopeful this Congress will be the Congress where we end the 
secret hold. I wish to again acknowledge the work Senator Grassley and 
Senator Wyden have done for years. They have definitely tilled this 
ground, and they, in fact, put this in the law that we voted on in 
2007. I compliment them for their work on this issue. We are continuing 
to work together on this issue. Senator Wyden and Senator Grassley are 
continuing to try to find a way to reform and make this place more open 
and transparent.
  I invite all my colleagues to sign the letter--Republican, 
Democratic, Independent. Sign the letter. We have 43 signatures. That 
means we are almost halfway there. If we can get to 60--we can move 
mountains here when we get that magic 60 number. I hope we can get to 
60 by the end of next week. That means we will have more than a 
majority to say: I don't need a rule or a law; I am willing to make any 
hold I have open to public inspection.
  I wish to also make another unanimous consent request today. We have 
a very important function in government; that is, investigating 
accidents. We are getting ready to enter into the travel season. The 
National Transportation Safety Board is a very important body. In fact, 
they are going to be considering, in the next week, the ``miracle on 
the Hudson'' accident and the problem with aviation as it relates to 
the danger of birds and possible engine failure. In June, they will be 
investigating the tragic Metro accident here in Washington, when 9 
people died. This is one of those boards where a Democrat and a 
Republican are both appointed. The Democrat has been waiting since last 
December, ostensibly, for the Republican. Dr. Earl Weener has been on 
the Executive Calendar for a number of weeks.
  Dr. Rosekind and Dr. Weener are needed on the NTSB. If any Member has 
a reason to recuse themselves, they would not have enough Members to go 
forward with these investigations. This is the kind of work that needs 
to be done. This is what people want the government to do. There is a 
lot of stuff the government does they don't want us doing. They want us 
to figure out what is going on with accidents in our transportation 
system and come up with answers so we can avoid these deadly accidents 
in the future. I think it is important, in light of that, that I go 
ahead and make another unanimous consent request to try to confirm 
these two people so they can begin working on the National 
Transportation Safety Board as we enter into the most heavily traveled 
period in America--the summer vacation months, when so many more 
Americans are traveling with their families.

                          ____________________


[Congressional Record: April 29, 2010 (Senate)]
[Page S2788-S2790]


 
             UNANIMOUS CONSENT REQUEST--EXECUTIVE CALENDAR

  Mrs. McCASKILL. Madam President, I ask unanimous consent that the 
Senate proceed to executive session for the

[[Page S2789]]

purpose of the consideration of Calendar No. 592, Mark R. Rosekind, to 
be a member of the National Transportation Safety Board, and No. 787, 
Earl F. Weener, to be a member of the National Transportation Safety 
Board; that the nominations be confirmed en bloc, the motions to 
reconsider be considered made and laid upon the table en bloc; that no 
further motions be in order; that the President be immediately notified 
of the Senate's action, and that any statements relating to the 
nominations be printed in the Record, as if read.
  The PRESIDING OFFICER. Is there objection?
  Mr. KYL. Madam President, reserving the right to object, I have no 
problem with either nomination. I understand they are in the process of 
being cleared by other Members. I believe that, while I have no 
specific problem, we want to allow all Senators to sign off before 
consent is granted.
  Last week, I objected to some of the nominations to allow the two 
leaders to work their clearance process on the Executive Calendar. I 
understand that the two leaders worked to confirm four U.S. attorneys 
later today.
  Under the circumstances, as to the specific request of my colleague, 
I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. McCASKILL. Madam President, if I could inquire of the Senator 
from Arizona for the purpose of making a clear record.
  Mr. KYL. Madam President, I objected.
  Mrs. McCASKILL. Madam President, I wish to make sure that the 
objection--the reason I am asking to inquire is it has to be clear that 
the objection is being made on behalf of someone else and not on behalf 
of the Senator from Arizona.
  Mr. KYL. Madam President, reserving the right to object, let me 
explain this process. When a nomination is sought to be cleared by both 
sides, there is what is called a hotline. All offices receive a quick 
notice that a particular bill or nominee is being hotlined. If you have 
a question or a concern, you register that. It is registered as an 
objection until it can be cleared up. In many cases, it is cleared up 
very quickly--sometimes overnight. Sometimes the two leaders need to 
work out a process for it to be cleared. It is, in one sense, a hold.
  As I said, I have no objection to these two people, so I am not 
holding them. I am objecting on behalf of the Republican leadership in 
order to enable the two leaders to clear both of these nominees; that 
is, to make sure there is no objection on either side, so they can both 
go forward. That is the basis for my objection.
  Mrs. McCASKILL. Madam President, let me make a couple comments 
concerning that.
  First, Mr. Weener has been on the Executive Calendar since March 24. 
So this isn't something that happened in the last couple days.
  Second, it was very clear that the Senator from Arizona said he 
wasn't objecting, so he is objecting for someone else. This notion that 
this has something to do with the leaders working together, none of 
these nominees are being held by anybody. This is not about the leader 
asking for time to clear names. It is not whether somebody can hold. 
Certainly, somebody can hold. The question is, After they have done it 
for 6 days, they can't be secret anymore. What I am trying to do--and I 
know the Senator from Arizona understands this. I am not quarreling 
with somebody's ability to hold. I just need to know who is holding. It 
cannot just be that we are working on it and it came over on the 
hotline and give us a few days. The 6 days are up. The people who are 
holding these nominees now have to say who they are.
  I wished to make it clear that your objection was not your objection 
to these nominees. In other words, you are not claiming the objection, 
you are claiming it on behalf of someone else who will not identify 
themselves. That is the point. Tomorrow is the day that all these 
people need to be identified as to who is holding them. If it is 
Senator McConnell holding every one, then he needs to claim them and 
say: I am holding all the nominees. If it is other Members of the 
caucus, then they need to claim it. It is the same for any Democrats 
who are holding. I believe we had two or three nominees being held by 
Democrats. They need to be published in the Congressional Record 
tomorrow. But this notion that it is being held up because the two 
leaders are working together, Senator Reid doesn't have anybody 
being held. So I wish to make sure we got that clear.

  Mr. WHITEHOUSE. Will the Senator yield for a question?
  Mrs. McCASKILL. I yield to the Senator from Rhode Island for a 
question.
  Mr. KYL. If my colleague will yield first for a minute, I wish to 
make it clear that it is precisely on the basis that I stated that I am 
objecting this evening. I believe the two leaders will be able to clear 
the two specific nominees my colleague asked unanimous consent for 
tonight. It is truly a matter of the clearance process through the 
hotline. As a result, what I said is true. It is nothing more than 
that, to my knowledge.
  I take all the other points my colleague made. As to my objection 
this evening, I prefer to have my colleague acknowledge that what I 
said is what I believe; namely, that this is a clearance process for 
the two leaders through the hotline and that it is my expectation that 
these nominees will be cleared through that process. It is simply not 
completed.
  Mrs. McCASKILL. I apologize. I didn't mean to intimate that the 
Senator was saying something he didn't believe. I apologize if that is 
the way it was taken.
  The point is pretty obvious. We have 84 nominees backed up at the 
train station, compared to 8 under the Bush administration. If anybody 
can't see what is going on, they need to tune in and pay attention. 
This is stall and block, stall and block, stall and block. Fine, but 
own it. If you are going to stall and block, let's see who you are. 
Claim it. That is all this is about. Claim it.
  If you are proud of slowing the process down, we just want to know 
who you are. To say this is about the two leaders clearing the hotline, 
that is not what this is about. This is about the law that says you 
cannot have secret holds once a unanimous consent request is made. I 
will be here as many times as it takes to reform this process and end 
the secret hold.
  I yield to my colleague from Rhode Island.
  Mr. WHITEHOUSE. First of all, I thank the Senator for her continuing 
efforts on this point. I had the privilege of joining her on the first 
day in moving some of these unanimous consents. She brought up 73, I 
think, in 1 day, to tee up all these names under the Senate rules that 
require that once a unanimous consent has been proposed, the identity 
of the Senator with the hold has to be divulged in 6 legislative 
days. As I understand it, the 6 legislative days run today.

  Mrs. McCASKILL. Correct.
  Mr. WHITEHOUSE. Therefore, tomorrow is the day when one of three 
things has to take place. We can come to the floor and clear these 
folks by unanimous consent because there will no longer be a secret 
hold is option 1. Option 2 is a Senator would have stood up, filed the 
papers that the rules of the Senate require and admit to the secret 
hold, making this process transparent and open. The third is they will 
have done what Senator McCaskill and I have both called the switcheroo, 
and they will have gone quietly to some other Senator and said: I only 
have 4 days left; I don't want to hold it till 6. If you pick up my 
hold now for me, then you are after the unanimous consent request, and 
we think we can dodge the rules this way.
  Is it the understanding of the Senator from Missouri that those are 
the three options we will discover tomorrow as to all of these 80 
nominees, which category they are in?
  Mrs. McCASKILL. I believe under the law, those are the only three 
options available: to either withdraw the hold and let the nomination 
go forward or claim the hold and publicly identify yourself or evade 
the law.
  Mr. WHITEHOUSE. With respect to the observation that the 
distinguished Senator from Arizona made that they had just, after this 
process, allowed four U.S. attorneys to be cleared, in the light of the 
fact that at this time in the Bush administration there were eight Bush 
administration officials who were the subject of Democratic holds, but 
it is more than 80 Obama officials who are now still the subject of

[[Page S2790]]

almost exclusively Republican holds, notwithstanding what is clear 
under the pressure of this initiative, we are actually down from over 
100, but we are still holding at over 80 officials who are tangled up 
in secret holds.
  Is it a fair statement of mine to put, ``Gosh, we released four'' 
into the context of, ``Yeah, but we are holding 84''? That is the way 
the ratio works right now; does it not?
  Mrs. McCASKILL. To be fair, I know we had 84 pending at the first of 
the week. I think our raising a ruckus is beginning to have a little 
bit of an impact because the iceberg moved slightly this week. We may 
have confirmed 14 this week of the 74, I believe, that I moved by 
unanimous consent last week.
  Keep in mind, all 74 I moved last week had been unanimously reported 
out of committee, with no opposition from the Republican Party in 
committee. None.
  Mr. WHITEHOUSE. Indeed, votes in favor by the Republicans on the 
committee.
  Mrs. McCASKILL. Exactly. In fact, many of them were voice-voted. We 
even checked to make sure no one said nay at the committee level. These 
were unanimously agreed to out of committee. There were 74 last week. I 
made the requests last Tuesday on the 74. The Senator from Rhode Island 
made a few requests on some that were not in that group that had been 
unanimously agreed to. I believe this week some of the group--maybe 
some of the Senator's, maybe some of the ones on which I made unanimous 
consent requests. I know we had 14 that moved. I think we are around 70 
total right now. But of those, 60 of them are in this unanimous-consent 
category and ones we have no idea who is holding them.
  Mr. WHITEHOUSE. Of those, if I may ask another question, who have 
been cleared, some have been allowed to come forward for votes on the 
Senate floor. The last was Judge Chin who had been held for a 
considerable period of time. We actually, if I recall correctly, had to 
file cloture and take more time. There is a process built around 
cloture so it burns up Senate floor time. We were forced to do that.
  When the nomination was finally voted on in the Senate, is my 
recollection correct that he cleared the Senate 98 to 0?
  Mrs. McCASKILL. He was held for a long time. And, yes, the Senator is 
correct, we had to go through all the procedural hoops that take time. 
Time is money when you are working for the taxpayers. Every hour we 
spend on something is an hour we cannot spend on something else. 
Everyone--all the good people who are working in this room, in the 
cloakrooms, and in all the offices--is paid by the taxpayers. We took 
time to go through cloture. Then there was not one ``no'' vote. If that 
is not a great example of obstructionism for the sake of obstructing, I 
cannot think of a better one--forcing the Senate to take days to 
confirm unanimously a nominee after they have held for a long period of 
time.
  Mr. WHITEHOUSE. Just by a process of elimination, unless one of the 
two absent Senators was the one who had the hold, whoever was holding 
Judge Chin actually ended up voting for him after months and months of 
having delayed the nomination.
  Mrs. McCASKILL. I don't know about the Senator from Rhode Island, but 
I would love to know how many people secretly hold a nominee and end up 
voting yes. Nine times out of ten--I should not say that. I don't know. 
It is secret. I have to believe that most times people secretly hold a 
nominee because they want something from an agency. In fact, I had a 
Member actually acknowledge to me: I don't care what happens to that 
nominee, but I need something from this agency. It is a leverage: I am 
going to hold your nominee hostage until this agency gives me what I 
want.
  I think we remember, there was an instance that came out in public 
that some people were being held for projects in their State.
  Mr. WHITEHOUSE. That is the right of the Senator to do, so long as 
they do it publicly.
  Mrs. McCASKILL. Right.
  Mr. WHITEHOUSE. They can still do that even after the secret holds.
  Mrs. McCASKILL. Absolutely. If someone is trying to leverage--I do 
not agree with it, but that is their right as a Senator--if they want 
to leverage a project in their State by saying to the administration: I 
won't let you have any nominees to go to work in that agency until that 
agency gives me what I want--that is their right. People should know 
about it. I don't think it would be very popular. People might have a 
problem with that. That is the beauty of the secret hold. They never 
have to tell that they are leveraging a nominee to get something they 
want out of an agency. That is why we need to end the secret hold. 
Simple.
  Mr. WHITEHOUSE. Madam President, if I may conclude, I thank the 
Senator for indulging me in these questions and allowing me to ask them 
and for her energetic and principled leadership on this issue.
  Mrs. McCASKILL. Madam President, I thank my colleague from Rhode 
Island. There are so many things about the Senate I respect--the 
traditions, the service. Make no mistake about it, there are so many of 
my Republican colleagues who serve whom I admire and respect. They care 
deeply about their country. Sometimes we disagree on issues, but that 
does not diminish my respect for them as public servants and as people. 
We all get along better than people probably realize we do. But there 
are certain traditions around here, frankly, that are more like a bad 
habit.
  The tradition of comity is wonderful. The tradition of debate is 
wonderful. The tradition of collegiality is wonderful, the tradition of 
seniority and respecting people who have been here for a great deal of 
time. So much of it has been built up over the history of this Nation, 
and I am so proud to be a Member of this body in so many ways.
  But there are some bad habits that are traditions of which we should 
not be proud, and this is one of them. This is a tradition that needs 
to end. The secret hold is a bad habit. It is a luxury in which we 
should not indulge as members of a public body to serve the public on 
behalf of the people for whom we work.
  Our work should be open. The word ``secret'' does not have a place of 
honor in this democracy. Secret, good government, that is a little bit 
like oil and water. Let's do away with this bad habit. Let's demolish 
this tradition for all the right reasons and go forward and have a new 
tradition that from now on, if a Senator feels strongly enough about a 
nominee to block their nomination, that they come forward, explain 
their reasoning, and allow the people they work for to judge for 
themselves whether that is a valid reason to stop a nomination.
  In many instances, the people they work for may believe it is a valid 
reason and may applaud them for it. But if it needs to be secret, I 
don't know, I bet maybe they might not. Let's end the tradition.
  I thank the Senator from Rhode Island. I also, obviously, thank, once 
again, Senator Grassley. He has so many times been the conscience of 
this place for so many different reasons, so many different issues. I 
have greatly admired his work in the inspector general community. He 
has done so much with inspectors general to strengthen them, make sure 
they have independence.
  He has been a great champion for accountability and transparency in 
the Senate. I am proud he has worked as long as he has on trying to 
stop the tradition of secret holds. He and Senator Wyden get the lion's 
share of the credit that has been done on this issue over the years.
  We now have 43 Senators who are willing to say: Enough already. Now 
if we can just get a few more, we can nail the coffin shut on secret 
holds once and for all.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.

                          ____________________