Congressional Record: August 1, 2003 (Senate)
Page S10923-S10926

                         SUBMITTED RESOLUTIONS



  Mr. LOTT (for himself, Mr. Byrd, Mr. Grassley, and Mr. Wyden) 
submitted the following resolution; which was referred to the Committee 
on Rules and Administration:

                              S. Res. 216

       Resolved, That (a) 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) submits, within 3 session days after the submission 
     under paragraph (1), the following notice for inclusion in 
     the Congressional Record and in the applicable calendar 
     section described in subsection (b):
       "I, Senator ____, intend to object to proceeding to ____, 
     dated ____."
       (b) The Secretary of the Senate shall establish for both 
     the Senate Calendar of Business and the Senate Executive 
     Calendar a separate section entitled "Notices of Intent to 
     Object to Proceeding". Each such section shall include the 
     name of each Senator filing a notice under subsection (a)(2), 
     the measure or matter covered by the calendar which the 
     Senator objects to, and the date the objection was filed.
       (c) 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 the following notice for 
     inclusion in the Congressional Record:
       "I, Senator ____, do not object to proceeding to ____, 
     dated ____."
       (d) This resolution shall apply during the portion of the 
     108th Congress after the date of the adoption of this 

  Mr. LOTT. Mr. President, today I am submitting a resolution that 
addresses the issue of anonymous "holds" that Senators use to prevent 
consideration of legislation and nominations. I am pleased to be joined 
in this effort by the distinguished former Majority Leader, Senator 
Byrd, along with the Chairman of the Finance Committee, Senator 
Grassley, and the distinguished Senator from Oregon, Senator Wyden.
  The resolution we are submitting today builds on the work of Senators 
Grassley and Wyden who have pursued this issue for years. On June 17, I 
chaired a hearing at the Rules Committee to consider a resolution, S. 
Res. 151, that Senators Grassley and Wyden introduced that would have 
amended the Senate's Rules to require the publication of the names of 
Senators who have placed holds on legislation or nominations.
  Many Senators and witnesses who testified before the Committee 
expressed concern about the propriety of incorporating an informal 
custom designed to obstruct--the hold--in the Senate's rules. Others 
were concerned that there could be unintended consequences to making 
this permanent change in the rules of the Senate.
  As a result of that hearing, I worked with the sponsors of the 
resolution and with Senator Byrd to develop what we believe is an 
appropriate way to resolve the problem of anonymous holds. The 
resolution we are introducing today reflects that work.
  During my tenure as Majority Leader, I, along with Senator Daschle 
attempted to address the issue of secret holds. We sent a letter to all 
Senators and indicated that members placing holds on legislation or 
nominations would have to notify the sponsor of the legislation, the 
committee of jurisdiction, and the leaders. Unfortunately, we had no 
mechanism to enforce those requirements and secret holds continue to 
plague the Senate.
  The resolution we are submitting today would place a greater 
responsibility on Senators to make their holds public. Our resolution 
creates a Standing Order that would stay in effect until the end of the 
108th Congress. The Order 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, three days after the notice 
is provided to a leader.
  New sections would be created in the Legislative and Executive 
Calendars that would identify the names of Senators with holds on 
particular measures and nominations. The order also provides a brief 
written format that a Senator must use to indicate his opposition to 
proceeding. In addition, a format is provided to remove a hold.
  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. As leader, I could not 
establish a rational and timely agenda for the institution to perform 
its business without having to first consult with, effectively, every 
other member of the Senate.
  One day, a Senator would have a hold on a bill and after I convinced 
him to lift the hold, the next day I was told another Senator had 
placed a hold on the same bill. And don't get me wrong, these weren't 
just holds from Democrats, they were holds from some of my best friends 
on this side of the aisle.
  This Order 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. I, for 
one, would consider eliminating the hold, by for example, limiting 
debate on the motion to proceed. However, I believe before we consider 
such a drastic step, we should, at the very least, eliminate the secret 
hold and I believe this Order will achieve that goal.
  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 can 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 has no 
place in this revered institution.
  I believe that if we adopt this Resolution, the public will have 
greater trust in the Senate. Secrecy and anonymity in an institution of 
the people does not engender trust among our constituents. Holds belong 
in the wrestling ring, not in this hallowed chamber.
  This resolution is an experiment in making the Senate and Senators 
more accountable. At the end of the 108th Congress, the Senate will be 
able to determine whether it wants to make this a permanent Standing 
Order or whether it wants to modify the Order. I hope my colleagues 
will give the Senate the opportunity to see if this approach will 
eliminate the secrecy surrounding holds and facilitate dialogue that 
breaks the logjam on legislating in this body.
  I ask unanimous consent that the text a copy of the February, 1999, 
letter I sent with Senator Daschle be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                  U.S. Senate,

                                Washington, DC, February 25, 1999.
       Dear Colleague: As the 106th Congress begins, we wish to 
     clarify to all colleagues, procedures governing the use of 
     holds during the new legislative session. All Senators should 
     remember the Grassley and Wyden initiative, calling for a 
     Senator to "provide

[[Page S10924]]

     notice to leadership of his or her intention to object to 
     proceeding to a motion or matter [and] disclose the hold in 
     the Congressional Record."
       While we believe that all members will agree this practice 
     of "secret holds" has been a Senatorial courtesy extended 
     by party Leaders for many Congresses, it is our intention to 
     address some concerns raised regarding this practice.
       Therefore, at the beginning of the first session of the 
     106th Congress, all members wishing to place a hold on any 
     legislation or executive calendar business shall notify the 
     sponsor of the legislation and the committee of jurisdiction 
     of their concerns. Further, written notification should be 
     provided to the respective Leader stating their intentions 
     regarding the bill or nomination. Holds placed on items by a 
     member of a personal or committee staff will not be honored 
     unless accompanied by a written notification from the 
     objecting Senator by the end of the following business day.
       We look forward to working with you to produce a successful 
     new Congress.
           Best regards,
     Trent Lott
       Majority Leader, U.S. Senate
     Tom Daschle
       Democratic Leader, U.S. Senate.

  Mr. GRASSLEY. Mr. President, I rise to say just a few words about the 
Senate Resolution being submitted today by Senator Lott along with the 
distinguished Senator from West Virginia, Senator Byrd, myself and 
Senator Wyden. This resolution aims to end the practice of secret holds 
in the Senate; an issue on which Senator Wyden and I have worked long 
and hard.
  On May 21 of this year, I resubmitted with Senator Wyden our simple 
resolution to amend the Senate Rules to require Senators placing a hold 
to make that hold public in the Congressional Record. I was very 
pleased by the support and encouragement we received from Chairman 
Lott, who subsequently held a hearing on our resolution in the Senate 
Rules Committee. This was a very positive step in bringing this issue 
to the forefront. In fact, I was gratified by the many positive 
comments and expressions of interest from members of the Rules 
Committee in response to the testimony from myself and Senator Wyden.
  Following the hearing, my staff and Senator Wyden's staff were able 
to engage in very productive discussions with Chairman Lott's staff and 
staff for Ranking Member Dodd and Senator Byrd. The product of those 
discussions is this resolution and I'm very pleased with the result. 
This resolution is a little longer and not as simple as our original 
resolution, but it does precisely what Senator Wyden and I have been 
seeking. In some ways it is even better than what we started with.
  Unlike our previous resolution, this measure establishes a standing 
order instead of amending the Senate Rules. Some Senators are 
understandably nervous about making a permanent change to the Senate 
Rules. In fact, this order is only written for the remainder of the 
108th Congress to allow Senators to see what effect this change has in 
practice before deciding whether to renew to requirement or make 
changes. Nevertheless, it's important to point out that a standing 
order has essentially the same force and effort in practice as a Senate 
Rule. Also, I'm confident based on my own experience in practicing 
public disclosure of holds in the Congressional Record, that Senators 
will find public holds don't hurt a bit. Therefore, it's my expectation 
that this standing order will be renewed in future congresses.
  This new standing order would also spell out the exact format and 
content required when Senators publish notices of holds so there is no 
ambiguity or room for misunderstanding. Having a standard format will 
also make it easier in practice for Senators to submit notices of holds 
for the Record. It will be as simple as adding a cosponsor to a bill. 
Our resolution would also provide for publication in the Senate 
Calendars of notices of holds on legislation or nominees as well as a 
standard procedure for removing a Senator's name from the calendar when 
a hold is released.
  One other change we made from our previous resolution was to allow 
for three session days instead of two after a hold has been placed for 
the public notice to be included in the Record. I want to be clear that 
I support immediate public disclosure of holds because I believe in the 
principle of open government and I can find no legitimate reason why a 
Senator placing a hold should remain anonymous. However, it's necessary 
to allow for a short window of time to permit Senators and their staff 
to prepare a notice and submit it for the Record. I've found that two 
session days has been more than adequate for myself and my staff, but 
not all Senators' offices are the same. Senator Byrd suggested that 
three session days might be more appropriate and since the practice of 
disclosing holds will be uncharted territory at first for most 
Senators, a deadline of three session days to publish holds seems 
  I should add at this time that I'm very honored to have the support 
of Senator Byrd on this initiative. No one knows Senate procedure 
better or has more institutional knowledge of the Senate than Senator 
Byrd. Both he and Senator Lott have a unique understanding of the 
problem of secret holds, having both served as Senate Majority Leader. 
Having Senator Byrd's name on this resolution should send a strong 
message to the Senate that secret holds are a serious problem that 
should be dealt with for the good of the Senate as an institution.
  I believe that this change will lead to more open dialogue and more 
constructive debate in the Senate. Moreover, it will make the Senate 
process more transparent and reduce public cynicism. I look forward to 
continuing to work with Senator Lott, Senator Byrd, and the rest of the 
Rules Committee to move this needed reform through the legislative 
  Mr. WYDEN. Mr. President, the submission of this resolution marks a 
very important milestone in the seven-year effort I have pursued with 
Senator Grassley to bring the Senate practice of holds out of the 
shadows and into the sunshine. Throughout this time we have labored as 
a bipartisan team to champion the cause of the "sunshine" hold. I 
especially want to thank Rules Chairman Lott and the Senate's foremost 
authority on the Rules, Senator Byrd, for their commitment to working 
with us on this resolution. They know all too well the havoc "secret" 
holds can wreak on the Senate agenda.
  Whether public or secret, the hold in the Senate is a lot like the 
seventh inning stretch in baseball: there is no official rule or 
regulation that talks about it, but it has been observed for so long 
that it has become a tradition. Its capacity to tie the Senate and 
Senators in knots is notorious, and it has even given birth to several 
intriguing offspring: the hostage hold, the rolling hold and the Mae 
West hold.
  The secret hold is a practice of Senatorial courtesy extended by the 
respective Leaders. Even though it is one of the Senate's most popular 
procedures, it cannot be found anywhere in the United States 
Constitution or in the Senate Rules. It is one of the most powerful 
weapons any Senator can wield in this body, and in its stealth version, 
known as the secret hold, it is even more potent.
  The target of this resolution is specifically "holds," which we 
define as a Senator's intent to object to proceeding to a motion or 
matter. The resolution does not deal with so-called "consults," which 
are confidential communications between a Senator and the respective 
Leader informing the Leader of a Senator's interest in a bill or 
nomination. This resolution would say to those who want to kill or stop 
a bill or nomination that they must come forward and notify their 
respective party leaders. It would not affect the process known as the 
"consult" insofar as it is used to alert a Senator when a bill or 
nomination is moving toward the floor so that the Senator may prepare 
for floor consideration.
  The resolution would establish a Senate Temporary Standing Order for 
the duration of the 108th Congress allowing "sunshine" holds. The 
resolution would require a Senator who wishes to object to a motion or 
matter to publish notice of the intent in the Congressional Record 
within 3 session days of notifying the respective Leader. The 
resolution would in no way limit the privilege of any Senator to place 
a "hold" on a measure or matter, it would simply say that the notice 
of intent to object to a measure or matter be published.
  Throughout the Senate's history some of the most potent weapons--
procedural and otherwise--often have not

[[Page S10925]]

been rules but rather the absence of them.
  Beginning in 1997 and again in 1998, the United States Senate voted 
unanimously in favor of amendments Senator Grassley and I sponsored to 
require that a notice of intent to object be published in the 
Congressional Record within 48 hours. The amendments, however, never 
survived conference.
  So, Senator Grassley and I took our case to the leadership, and to 
their credit, Tom Daschle and Trent Lott agreed it was time to make a 
change. They recognized the need for more openness in the way the 
Senate conducts its business. The leaders sent a joint letter in 
February 1999, to all Senators setting forth a policy requiring "all 
Senators wishing to place a hold on any legislation or executive 
calendar business [to] notify the sponsor or the legislation and the 
committee of jurisdiction of their concerns." Their letter said: 
"written notification should be provided to the respective Leader 
stating their intentions regarding the bill or nomination," and that 
"holds placed on items by a member of a personal or committee staff 
will not be honored unless accompanied by a written notification from 
the objecting Senator by the end of the following business day."
  At first, this action seemed to make a real difference: many Senators 
were more open about their holds, and staff could no longer slap a hold 
on a bill with a quick phone call. But after some time, the clouds 
moved in on the sunshine hold, obscuring the progress that had been 
achieved. Legislative gridlock resumed, and the Senate seemed to have 
forgotten the Lott/Daschle letter.
  The problem the Senate faces today is not that a significant number 
of our colleagues make their holds public, but that a small number of 
Senators do not. It is their abuse of secret holds that contributes to 
legislative gridlock. By calling for publication of the intent to 
object in the Congressional Record, I believe the resolution puts the 
burden where it ought to be: not on the leadership, where it is today, 
but squarely on the shoulders of the objector. An objector who seeks to 
kill a bill by hiding behind a curtain of secrecy is hurting the 
leaders' ability to run the body and is obstructing rather than 
facilitating the Senate's business.
  Public notice of holds may be an inconvenience for a few, but not a 
hardship. In any given week, Senators insert more than two dozen 
statements in the Record on subjects such as sports teams winning 
championships and charitable fundraisers. These important events should 
be recognized, and I would hope that the intent of a Senator to block 
action on a bill or nomination would be considered of equal importance.
  The sponsors of the resolution have discussed at great length, most 
recently at the Rules Committee hearing on the subject, the matter of 
enforcement. My sense is that no Senator will ever go to jail for 
failing to give public notice of a hold, just as no Senator has gone to 
jail for violating the Standing Order adopted in the 98th Congress 
requiring Senators to vote from their assigned desks during the 
"yeas" and "nays." There are any number of provisions even in the 
  Rules that are not enforced at all or rarely today. Senate Rule XXVI 
requires the inclusion of various items of information in written 
committee reports, but Senate Rules do not require committees to file 
written reports on bills. Senate Rule VII, para. 5, provides committees 
shall make every reasonable effort to have printed hearings available 
for Senators before a measure comes to the floor for debate, although 
the Senate has debated any number of measures without the benefit of a 
printed report.
  This resolution signals to all members the Senate's preferred manner 
of doing business. I think most Senators believe the Senate's business 
should be conducted in public, and I think the American people would 
  Sunshine holds would strengthen the Leaders' hands as well as their 
options. A Leader may opt to continue to honor a secret hold, but a 
Leader wishing to move a measure or matter would be under no obligation 
to honor a hold unless the objecting Senator had complied with the Rule 
and published notice in the Record.
  The resolution is constructed so as to become a part of the Temporary 
Standing Orders, or the series of unanimous consent agreements that are 
renewed at the outset of each new Congress. Because there may be 
unintended consequences and because I have no desire to inflict 
irreparable harm on the Senate Rules, I deferred to the experience and 
wisdom of Senator Byrd whose wise counsel urged that the terms of the 
resolution be limited to the 108th Congress. My intent is to revisit 
the matter with Senators Grassley, Lott, and Byrd at the end of the 
108th Congress to determine the benefits of making the resolution part 
of the Senate Rules at that time.
  As United States Senators we occupy a position of public trust, and I 
believe the exercise of the power that has been vested in us should 
always be accompanied by public accountability. I would argue that it 
is not the hold, but the anonymity of the hold that is so odious to the 
basic premise of our democratic system. The Lott-Byrd-Grassley-Wyden 
resolution would bring the anonymous hold out of the shadows of the 
Senate. It would assure that the awesome power possessed by an 
individual Senator to stop legislation or a nomination would be 
accompanied by the sunshine of public accountability.
  At its hearing in June, the Rules Committee weighed the merits of the 
Grassley-Wyden Resolution, and considered several fundamental 
questions: Whether the practice of secret holds is consistent with a 
democratic system; whether the elimination of the secrecy would disrupt 
the Constitutional balance of power between the various branches of 
government; and whether the removal of the secrecy would tip the 
balance between the rights of the majority and the minority in the 
  My response is that removing secrecy from the hold will not alter the 
practice, merely its form. Removing secrecy from the hold will not tip 
the balance in Senate Rules and procedures between majority and 
minority rights. And removing the secrecy will not alter the balance of 
powers created under the Constitution. On the contrary, surrendering 
secrecy will strengthen public accountability and lessen the gridlock 
that has increasingly come to plague the world's greatest deliberative 
  I would like to close by quoting the foremost authority on Senate 
Rules, who served as Majority Leader in the 95th, 96th and 100th 
Congresses. In Chapter 28, "Reflections of a Party Leader," of Volume 
II of The Senate, the Honorable Robert C. Byrd wrote: "To me, the 
Senate rules were to be used, when necessary, to advance and expedite 
the Senate's business." Giving the sunshine hold a place in the 
Senate's Rules would surely serve this worthy goal.