Thursday, May 6, 2010

Hold Reform 2

Hold reform is back in the news today, with Democrats led by Claire McCaskill now looking for a legislative solution to "secret" holds.  Also, Harry Reid started talking about referring violations of Senate rules about secret holds to the Ethics Committee

I continue to think this is a big waste of time.  There's no evidence at all that the problem with holds is that they are secret.  Tom Coburn makes his holds public, but it doesn't seem to stop him from using them.  The problem with holds is that there are far too many of them.  Well, if you are a majoritarian, then the problem is that they exist at all.  But even if you agree with me that it's at least plausibly a virtue that individual Senators have a chance to bargain on behalf of the narrow interests of their constituents by using an objection to a nomination or bill as leverage, what's happening now is apparently something else entirely.  Instead of the hold as an opportunity for individual influence, what we almost certainly have is the use of holds as a partisan maneuver by the minority party.  That's an abuse of Senate norms.

The remedy for that isn't publicity. The remedy is for the majority to be willing to force cloture votes on a motion to proceed despite partisan holds.  Rather than make Senators explain themselves and have the Majority Leader judge which holds are legitimate and which are not, the Democrats should play hardball: they should let the Republicans know that unless the total number of holds on nominations shrinks dramatically, the Dems will start calling nominations up anyway, hold or not, and force the GOP to find 41 votes against considering them.  My guess that a good rule of thumb would be one hold per Senator to begin with, or no more than 41 Republican holds in all.  Given that (per Steve Benen) the Senate currently has 97 nominees waiting for Senate action, of whom 53 are subjects of "secret" holds, that should reduce the backlog a fair amount (it's not clear from Benen how many of the 97 are subject to disclosed holds, how many of them are waiting for hearings and votes in committee and of those how many are subject to stalling tactics at that level, and how many are just recent nominees moving normally through the process). 

As I said last week, there's not much the Dems can do if the GOP really does have 41 votes, at least barring the high drama of majority-imposed filibuster reform.  But so far, it appears that Republicans are willing to engage in low-cost or no-cost foot-dragging, but not actually interested in voting against nominees to whom they do not actually object.  Perhaps things would be different if Reid threatened to ignore holds and go straight to cloture votes, but then again perhaps Republicans might just drop some of their holds at that point.

But secrecy?  It may make for a good sound bite, but it doesn't get to the actual problem, which is very simple: not secret holds, but far too many holds.

6 comments:

  1. Isn't the problem here that it takes a long time for cloture to ripen (I think that's the term) so trying to go after each of the holds would tie up the Senate forever?

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  2. No, because (and I think I'm correct about this...I always get worried when I talk about the specific provisions of Senate rules, as opposed to the general incentives and structure of Senate rules)...ech. Sentence failure; I'll start again.

    No, because they don't have to stop working while cloture ripens. And I'm fairly certain that multiple cloture petitions can be filed at the same time. I do think that the post-cloture debate time cannot overlap for two things (IOW, get cloture on Nom A, get cloture on Nom B, then count the ensuing floor time against both post-cloture clocks), but that's where holding the Senate in at night and on weekends can help -- assuming that GOP Senators really want to bother, especially if they aren't actually against the nomination.

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  3. The problem isn't the pre-cloture ripening, the problem is that once a cloture vote is taken, the minority can still force up to 30 hours of delay on the Senate floor. I detail how this works here, http://www.americanprogress.org/issues/2010/07/judicial_confirmations.html, and am copying the relevant passages below. The short version is that it is mathematically impossible to confirm more than a small fraction of a president's judicial and executive branch nominees against blanket holds.

    Ian

    The Senate’s arcane rules require nominees to clear several procedural hurdles before they can be confirmed. Most importantly, the Senate must agree to a “motion to proceed” to debate that nomination, and they have to take a confirmation vote at the conclusion of debate. Senators can filibuster either the motion to proceed or the confirmation vote itself.

    Once a filibuster is broken, Senate rules still permit up to 30 hours of floor debate before taking a vote. The minority can therefore filibuster both the motion to proceed and the confirmation vote itself, and require up to 60 hours of floor debate before confirming a single nominee.

    Forty-eight of President Obama’s judicial nominees await confirmation. At 60 hours per nominee, the Senate would have to spend 2,880 hours—120 entire days—to act on each of these nominations. If Majority Leader Harry Reid (D-NV) were to cancel all recesses on August 1 and require the Senate to work 24 hours a day, seven days a week, doing nothing but considering judicial nominees, the last nominee would not be confirmed until several days after Thanksgiving—and that’s assuming that the Senate passed no bills, confirmed no other nominees, and took up no other matters for this entire period!

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  4. Ian,

    Two things. One is that on nominations, the motion to proceed cannot be filibustered. It used to be, but not since 1980.

    Second, they may take 30 hours of postcloture time -- but will they? I don't believe they would. I'm not sure, but I don't think that Republicans used up the postcloture time on Lael Brainard, which was a controversial nomination; I'm certain that they haven't done so on the noncontroversial nominations, including those that had a cloture vote.

    So, yes, it is possible for Republicans to force that much floor time, but in my opinion very unlike they would do so.

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  5. You're right about the motion to proceed. I will need to print a correction to my piece.

    That said, I do not share your optimism that Reid can simply call the minority's bluff on the 30 hours rule. It's true that, while Reid has been invoking cloture piecemeal that the minority has often declined to spend all thirty hours. There's little strategic advantage to buying just a few extra hours of delay.

    If the cost of invoking cloture suddenly becomes prohibitive, than the minority has every reason to force Reid to pay such a cost. That's what will happen if we ever see mass cloture petitions, as opposed to the very rare ones that we see now.

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  6. "Rare"? Well, I see what you mean, but still...

    Anyway, I don't think there's any real way to know what would happen, but remember: I'm talking about noncontroversial judicial (and perhaps in some cases exec branch) nominees, the ones who eventually get confirmed with unanimous or near-unanimous votes. In other words, the people who are chewing up those 30 hours are going to have to be people who actually support the nomination. As a one-time stunt, sure, they could probably get Fox News and Rush to applaud their brave insistence on fighting for the principle to block nominees whom they don't oppose...but I really think it would get old very quickly. I think it would be fairly difficult for DeMint (or whoever the ringleader would be) to actually round up the Senators needed to tag-team it, if Reid forced them to do so.

    In the case of Gordon Liu, certainly they would have no trouble doing it if they wanted to. But for no-name district judge nominees who have the support of their home state Senators and no opposition, I very much doubt it.

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