Friday, February 5, 2010

Hold On

If reports are to be believed, Senator Richard Shelby has placed holds on all of President Obama's currently pending nominees, apparently because he didn't get a couple of earmarks for Alabama.

This kind of behavior is an example of how absurd things are getting in the Senate. It's bad enough that any 41 Senators can block the other 59 from doing just about anything. But a hold allows one Senator to wreak havoc with the Senate's schedule.

One might ask, why doesn't the majority leader simply stop allowing holds? Unlike the 41-Senator filibuster, which at least has a firm basis in the Senate's rules, the "hold" practice is an informal custom. Originally, holds were designed as a courtesy to Senators who had a scheduling conflict with an important vote, but they've metastasized into a constant stalling tactic. So why not stop recognizing them?

The problem is that the Senate does almost everything by unanimous consent. A hold, while not formally recognized in the rules, amounts to a threat to conduct a filibuster, which is recognized. It particularly amounts to a threat not to consent to a unanimous consent request.

So when the majority leader seeks unanimous consent that the Senate vote on a nomination at a particular time, the "holder" can object. Then the majority leader would have to move that the Senate take up the nomination, and that motion could be filibustered. And while the majority leader might easily have the votes to invoke cloture, cloture doesn't result in a vote; it just starts the clock on thirty hours of debate. Then there's a vote. And that's just the vote on the motion to take up the matter. Then another cloture vote is needed to bring debate to a close, following which debate takes another thirty hours. So the "holder" is threatening that if he or she is not appeased, the matter will eat up nearly a whole week of precious Senate calendar time.

So as usual, what is really needed is a fundamental reform of the Senate's rules. The House of Representatives is famous for allowing individual members and the minority party as a whole too little influence on what happens. But the Senate allows too much. One member can tie the whole body up in knots. The result is too much appeasement of minority interests.

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