Friday, May 7, 2010

Why Secret Holds, Anyway?

As I've been saying, the idea that the problem with holds is that they're secret is wrong; the problem with holds is that they're being abused: holds, if they are justified, are used to give individual Senators bargaining power on behalf of their narrow constituency interests, not as part of a partisan stalling strategy. 

Ezra Klein agrees that secret holds are not the problem, but wonders why there are secret holds, anyway:
I've never been able to get a straight answer on why, exactly, senators should be able to place anonymous holds on nominees. I can see the arguments for holds themselves: They allow senators to express strong opposition and, from a bargaining standpoint, they give senators leverage to use on other priorities. But making a hold anonymous undermines both arguments: It means no one knows why there's opposition and no senator can bargain on the issue.
He asks, and I answer!  The hold may be "secret" within the Senate, but is probably not secret to whoever the Senator in question is bargaining with.  That may be the nominee (the Senator may want something specific from either the nominee or the relevant agency), or it may be someone else in the administration.  Or another Senator -- say, a committee chair who won't schedule a markup on the hold-placing Senator's bill.  Of course, the other party to such negotiations is also keeping the may be a condition insisted upon by the hold-placing Senator, or in the case of internal negotiations it may because Senators want to protect the norm of anonymous holds (after all, the other Senator may have his or her own secret hold on something else).  Why keep it secret?  Well, if the purpose is for the Senator to protect a narrow interest, almost by definition it's going to be nationally unpopular, and Senators never like negative publicity, even if it's a popular position back home -- and as seen in the Benator's health care mess, our political culture is often so toxic to acting on interests that cutting deals might be unpopular back home even if it benefits the state.  Even if Constitutional institutions and practices sanction such deals.

As long as single Senators are actively using the hold to try to get something, it shouldn't be a problem, and in the past it usually hasn't been.  Oh, sure, some nominations were delayed, but the overall costs were small.

It does become a problem when holds are abused -- when a single Senator tries to block a lot of nominees, or when the minority party (or a faction of that party) uses holds to delay, not to bargain.  I believe that's what's going on now, and I think the Democrats should take action, not whine about secrecy because it makes for a good sound bite.

Where I don't agree with Klein (and others who have suggested it) is about confirming fewer people.  The way the system works now is that the Executive Branch -- the departments and agencies that actually carry out the business of governing -- is responsive to both Congress and the president.  Actually, it's responsive to lots of things: the White House, Congress, state governments, interest groups, the courts, and the parties.  That's a very good thing, in my view; the alternative is for the government to respond only to its own bureaucratic norms and incentives.  It's the difference, to put it bluntly, between political control and bureaucratic control.  The appointment and confirmation of very large numbers of people at the policy-making level is a big part of that.  It's not the only weapon that Congress and outside groups have, but it's an important one, and the fight is tough enough with it.  Of course, no one is talking about eliminating all appointments, but each political appointee traded in for a bureaucrat not only is one more policy-maker that's hard for the political system to touch, but also one more ally for the bureaucracy in its never-ending quest to neutralize and capture agencies heads and department secretaries.  One of the things, in my opinion, that Athe United States really gets right is far more political -- democratic -- influence on the government than most other nations to which the US is usually compared.  That's why fixing the Senate is so important.  The other solution, to me, is giving up on one small, but very important, piece of democracy.

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