What I Learned From Blow the Whistle

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Over the past few months, On the Media has been working on a project called Blow the Whistle, in which we were trying to find out which Senator was behind a secret hold that killed a bill called The Whistleblower Protection Enhancement Act.

We asked our listeners to call their Senators and ask them to confirm that they were not responsible for the hold that killed the bill. Hundreds of listeners participated, and at the end of the project we narrowed the list of possible Senators to just two (Jon Kyl of Arizona and Jeff Sessions of Alabama), both of whom have repeatedly refused to comment on the hold.

This was our first long-form investigation into the machinations of the Senate. To adhere to the classic adage “write what you know,” I thought I would talk about what I learned from this project as a member of the media. Below are just a few of the many eye-opening things I learned from this process.

1. Senate Rules are complex. Very complex. There are the 44 rules that make up the “standing rules of the Senate” and to an outsider, the application of these rules might not make a lick of sense. Just as one example, did you know that a legislative “day” can actually last weeks or months? For example, the first legislative day of the current Senatorial session started on January 5 and ended on January 25. Additionally, a solid understanding of the Senate requires a decent understanding of Senate vocabulary. Sure, you may have heard of a filibuster and a lame-duck session, but have you ever heard of a “Christmas tree” Bill?

To make things even more complex, there is a rule called unanimous consent that is paramount in understanding the way the Senate works. Unanimous consent allows the Senate to make end runs around some of the standing rules in order to fast track certain bills and nominations to a vote as long as all the members of the Senate agree. Unanimous consent has its own set of rules that Senators must abide by. Unanimous Consent is used all the time in the Senate.

The secret hold is a function of unanimous consent. If a Senator objects to a unanimous consent vote or wants more time to study legislation, they can “hold” a bill. A secret hold is simply a way to do this without revealing the holder’s identity or their motivation behind doing so.

2. Doing a story about rules of the Senate is difficult due to their complexity.

Since the rules and procedures of the Senate are so byzantine, they are incredibly hard to explain in the course of a story without turning the story itself into a referendum on the rules and procedures. Take for example our attempts to try and explain the secret hold. As of December 22nd, when the Whistleblower Protection Enhancement Act was killed, the secret hold allowed Senators to hold a bill for six days before their name was recorded in the congressional record. However, Senators could “tag team a bill” where one would place a hold on the bill, remove it on the fifth day, and then have another Senator do the same thing, bouncing the hold back and forth between the two of them for as long as they wanted.

In the case of the Whistleblower Protection Enhancement Act, however, the hold was placed on the bill on the last day of the legislative session, allowing the bill to die without having to enter their name in the congressional record, since the record for that session ended at the end of that day. At the end of a legislative session, any bills that have not been passed have to be completely reintroduced in the following session, so the hold is no longer on the bill because the bill is dead.

Confused? You’re not alone. Trying to explain all of this with the 6 minutes of airtime we generally have for a story became an exercise in using the simplest, ost direct language possible to describe an incredibly arcane process. For the most part, I think we were successful, but there were times when I honestly wished I could go back into a recorded story and add some clarification and conditions.

3. Contrary to popular belief, the secret hold still exists

If you look up the secret hold on Wikipedia, it will tell you that on January 27th, a resolution introduced by Ron Wyden (D-Oregon) and Chuck Grassley (R-Iowa) ended the secret hold. Many in the press parroted this notion – that the secret hold is now just a distant memory. Heck, the resolution that the Senate passed is even called “Eliminating Secret Senate Holds.” However, the secret hold is very much still with us.

Prior to this reform, a secret hold could be placed on a bill for six days, but that has been shortened to just 48 hours, at which point either the Senator that placed the hold has to come forward, or the hold will be attributed to party leadership. The logic behind this new rule is that it will discourage Senators from using secret holds because the party leader won’t be willing to accept responsibility for them. Senator Wyden said in a New York Times article about the hold (and again on our show) that hey thought they had “plugged the holes.”

But the devil is in the details. There is nothing in the resolution that specifically bars the use of the “tag teaming” technique, even though the 48 hour limit will make the process more difficult. Additionally, 48 hours gives Senators plenty of time to use the same technique that killed the Whistleblower Protection Enhancement Act: placing a hold hours before the session ends. Doing so will allow a Senator to kill a bill without the name of the holder ever entering the congressional record.

4. Elected Officials Don’t Necessarily Feel the Need to Answer Questions
As a show that doesn’t typically communicate with the offices of the Senate, we don’t have an established relationship with them. While most Senate press secretaries were happy to talk to us, there were some who essentially set up staff firewalls between us and the press secretaries of their offices.

Senator David Vitter’s office adopted the habit of simply forwarding us to the voicemail of their press secretary, who would never return our calls. When we called back to ask them why we weren’t getting calls back, they started hanging up on us, or not picking up when we called from our office phones. It was only through reporters Jonathan Tilove and Bruce Alpert of the New Orleans Times-Picayune that we were able to eventually get a confirmation.

With Jon Kyl’s office, they would again refer all our questions to their press office. When one of our listeners gave us a name of a Kyl staffer that she was over the phone, his office wouldn’t even confirm the spelling for us – they simply sent us along to their press secretary. Who never called back.

Alabama Senator Jeff Sessions’ staff was very evasive, with one of his staffers infamously telling us that he wouldn’t answer our requests for comment on the secret hold because he was “a very private person.” But even though his press office repeatedly refused to comment or even acknowledge our repeated requests, he appeared on CNBC’s The Kudlow Report, ABC News’ Jonathan Karl, The Glenn Beck show, several Fox News appearances as well as op-eds in The Washington Post and USA Today.

Unless there is a public mandate for information, it appears that there is no need for Senators to respond to requests for public comment. In the case of Senator Sharrod Brown, it was only because listener Susan Schibler, (who appear on the show to discuss) made his office aware of the Blow the Whistle website that it felt sufficient pressure to comment.

5. Citizens don’t trust their elected officials to tell them the truth.

I suppose this could be chalked up as naïveté, but one of the most surprising components of this story was the fact that so many people who contacted us about this project asked the same question again and again – “How to you know that they are telling the truth?”

Well, the simple answer is that we don’t. Since secret holds that are lifted before the grace period runs out (6 days from when the hold is placed prior to January 27th, 2 days thereafter) aren’t recorded anywhere, we are going simply on the word of the Senate offices recorded by our listeners.

It was this very reason why we asked participants to get the name of the person they spoke to within a Senator’s office. Now, this wasn’t always possible, and some Senators’ offices requested to speak to us on background, but if you look at the responses, they are overwhelmingly on-the-record.

Additionally, during this campaign we operated on the belief that Senators would rather tell the truth than to be exposed as lying should the truth later come out. The fact that there are a couple Senators remaining who refuse to comment seems to bear that assumption out.