On December 22nd, hours before the end of the 111th congressional session, a Senator used a ‘secret hold’ to stall a piece of legislation called the Whistleblower Protection Enhancement Act, that had previously passed both the Senate and the House, and had made its way back to the Senate for reconciliation. The bill would have strengthened protections for whistleblowers who face reprisals from their employers for exposing government malfeasance. Since the hold was placed so close to the end of the congressional session, it effectively killed the bill, which will need to be reintroduced in this new session if it is to become law.
But not all hope is lost. This past Thursday, as part of a series of reform votes meant to ease Senate gridlock, the Senate voted 92-4 to make new rules governing the secret hold, making the practice significantly harder.
Under the new rules a senator must acknowledge the hold on the Congressional Record within two days of placing one on a bill or nomination. According to the New York Times, if the Senator who placed the hold will not come forward, “the hold would then automatically be attributed to the party leader or another senator who might have initiated the hold at a colleague’s request.” Lawmakers hope this new rule will discourage the practice of placing holds without attribution.
The secret hold has been controversial both inside and outside the Senate for a number of years. It was originally designed as a way to allow a Senator to stall voting on a bill so that they had time to properly research and prepare their vote. Until the 1970’s it was very infrequently used, but it became employed more and more often once Senators realized they could use it as a stalling tactic.
The rule has come under scrutiny many times, most prominently in 2006, when a Senator placed a secret hold on the Federal Funding Accountability and Transparency Act. Bloggers and activists found a bill promoting government transparency an ironic target for the secret hold, and asked constituents to call their senators and request an on-the-record denial of using it. Through this process, it was eventually revealed that Senator Ted Stevens of Alaska and Robert Byrd of West Virginia were responsible.
In 2007, as part of the Honest Leadership and Open Government Act, the rule was changed to require public disclosure of a hold within six days, but a loophole was quickly found by passing secret holds back and forth between Senators as the sixth day approached, effectively allowing the hold to go on indefinitely. This technique has been called “tag-teaming” in the Senate.
Democratic Senators Ron Wyden and Chuck Grassley have been working to eliminate the secret hold for over a decade. “Holds are an important right of individual senators as they work to represent their constituents and for the best interests of the country, but the right ought to be exercised in the light of day,” Grassley said in a statement released yesterday.
The newly founded Tea Party Caucus, composed of Senators Jim DeMint (R-S.C.), Rand Paul (R-Ky.) and Mike Lee (R-Utah), voted against the bill -- along with John Ensign (R) of Nevada.
On January 7, On the Media teamed up with the Government Accountability Project to launch Blow the Whistle, a crowd-sourcing effort to expose the Senator behind the secret hold that killed the Whistleblower Protection Enhancement Act. Since we began the project, we have received hundreds of emails from people who have called their Senators, and have confirmation from the offices of 55 Senators that they were not responsible for killing the bill.
While we are ecstatic that the Senate has chosen to end the use of this tactic, whoever killed this important legislation should still be held accountable for their actions under the cloak of a rule the Senate no longer supports. Voters should have the right know when their elected officials are using backroom tactics to hobble the legislative process. More than half the Senate has already come forward to confirm that they were not involved. With your help, we can contact the rest.
“While procedural reform is welcome, the public is still vulnerable to corruption and abuses of power sustained by secrecy,” says Tom Devine, Legal Director of the Government Accountability Project. “This vote is a mandate for the secret senator who shielded secret government to come out of the shadows about the Senate’s final secret hold.”
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Alex Goldman is a producer with WNYC's On the Media and the editor of the Blow the Whistle project.