Commentary

Why the Senate Is Sitting on 309 Bills


By Madisonian design, the U.S. Senate is meant to be the saucer that cools the passion of the House of Representatives. In the 111th Congress, it's become a freezer. There are currently 309 bills that have passed the House and sit waiting for action—any kind of action—in the Senate. The legislation on ice affects everything from improved training for commercial flight crews to extending life insurance benefits for disabled veterans. This is not trivial stuff.

Any number of tactics can halt a bill. Previous generations favored the stay-up-all-night filibuster, which, for expediency's sake, has been replaced with the mere threat of a filibuster. (Thus the Democratic gambit to use so-called reconciliation, with its need for a simple majority, to ram through health-care legislation.) Many of the 309, however, have been buried by a single tactic, the secret "hold," which allows any senator to halt floor consideration of any matter. The hold isn't in the Senate rule book; it's an informal practice that, as viewed by Donald Ritchie, the Senate's official historian, is "symbolic of the hardening of party lines and polarization. Even with Richard Nixon and Jimmy Carter, people didn't block things like this."

Walter Oleszek of the Congressional Research Service says the origin of holds "appears lost in the mists of history." The clearest beginning dates to Lyndon Johnson's tenure as Senate Majority Leader between 1955 and 1961, when one could proclaim a nomination "personally obnoxious," according to Johnson biographer Robert Caro. For decades its use was benign; if a senator was running late to a vote, hadn't read a bill, or just wanted to seek a few small changes, he could phone in a hold. The late Ohio Democrat Howard Metzenbaum, never able to get on the Finance Committee, held up tax bills to give himself time to go over them and make sure he wasn't being hoodwinked.

Now a senator or aide simply calls the party's secretary and announces that he or she is halting a bill's consideration, with his or her identity disclosed to the party leader but not to the other side. The Honest Leadership & Open Government Act of 2007 amended the Senate rules—even though holds aren't in the rules—to require public notice of a holder's identity after six days. So what did senators do? Find a way around the rule by "tag-teaming"—in which one senator releases a hold after five days and another swoops in immediately to put on another hold. Then they trade places indefinitely. Assistant Majority Leader Dick Durbin of Illinois, the Senate's No. 2 Democrat, can't say exactly how many Republican holds there are and who placed them. His "strong suspicions" aside, he's not allowed to know.

The 309 pending bills constitute 70% of those sent the Senate's way this session, according to Durbin. This obliterates the norms of past decades, with both parties to blame. As Rutgers University historian Ross Baker put it: "The Senate is now one of the few places in the world where adults can have tantrums, where the power of the individual to cause mischief is pretty much unlimited."

What's most notable—and galling—is how important some of these bills are and how many made it through the usually fractious House with bipartisan support. There's the 409-11 vote for the Airline Safety & Pilot Training Improvement Act that provides more training for crew members and limits the number of flight hours allowed for pilots. There's the bill reauthorizing the $9.9 billion appropriation for the Coast Guard that squeaked by 385-11. Reauthorized funding for the Transportation Security Administration passed 397-25. The $234 million for the Job Creation Through Entrepreneurship Act that generates jobs through small business and veterans' business centers was a winner on a 406-10 vote.

Other bills whizzed through on voice votes, including $50 million to assist homeless military veterans. Americans depend on these services and presume that their senators will have the grace to do their jobs. But if "the era of Senate comity is over," as Durbin frustratedly puts it, how does this movie end? Former Majority Leader Howard Baker, a retired Tennessee Republican famous for his civility, tells me he was never too bothered by Democratic holds. He just sought out his unhappy colleague and started listening. Of course, that's impossible if the Senate leaders don't know the identity of the obstructionist. So rather than eliminate holds, let's demand that they subject them to full disclosure and accountability. Wouldn't it be nice to know who's slowing down the people's work? Then we could tag-team them right out of office.

Warren is a reporter for Bloomberg News.

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