Note 29. Holds
A Senatorial Tragedy of the Commons?
“The shadowy practice of Senate ‘holds’ — the power of one lawmaker to block nominations or legislation indefinitely — is a big reason that the Senate is gridlocked.” That was the lede in a McClatchy story on the Senate in 2010; it was a big story in 2023 when a Republican senator held up action on all military promotions that require Senate confirmation for months. It is a sentiment that continues to be reflected in critics of Senate procedure, often as a part of discussion about the filibuster and obstructionism.
Is it true? If so, how did this come about?
Essential Background[1]
A hold is the notice a senator gives to his or her floor leader that he or she objects to the consideration of a bill or nomination on the floor. It has no force unless the floor leader honors the request. A majority leader may honor the request by not scheduling its consideration; a minority leader may honor the request by informing the majority leader that he will object to a unanimous consent request to bring up the bill or nomination or actually object if the majority leader makes a unanimous consent request to proceed anyway.
The practice developed as an informal adaptation by Senate leaders to the difficulties they faced in managing the floor in the 1960s and 1970s. Holds became a recognized feature of floor scheduling practices under Majority Leader Mike Mansfield with guidance of Robert C. Byrd (D-WV), who gladly took over floor duties while serving as secretary to the Democratic Conference and then as party whip. The practice became regularized in the 1970s as leadership staff recorded holds on their copies of the daily Senate Calendar, which quickly became known as the “marked calendar.” Lobbyists began to request that senators place holds on bills to delay action. And senators found that a hold could be used to hold hostage a bill or nomination for some unrelated purpose, such as to get a committee chair to commit to considering another bill.
At about the same time, the majority leadership team began to clear its plans for taking up measures on the floor with their own membership in advance and, of course, with the minority leader. Clearance helped the majority leader avoid surprise objections to his request to consider a measure, but the practice also contributed to making holds appear to be a right and prompted more holds to be registered. The practice of keeping confidential the identity of a senator placing a hold, which floor leaders may have used to their advantage at times, also may have encouraged holds.
During the 1970s and 1980s, repeated announcements by majority leaders that holds are not a right and could be ignored did not make much difference. Leaders still wanted advance notice of problems and senators appreciated the opportunity to exercise something approaching a personal veto, at least for legislation of only modest importance. Wherever they could, Mansfield (with Byrd’s assistance), Byrd, and Howard Baker, the Republican majority leader for the 1981-1986 period, sought a time agreement before debate on a bill started and gain agreement to a debate limit for all amendments.[2]
Holds gained their effectiveness as implicit threats to object to a unanimous consent request to proceed to the consideration of a bill or nomination and then to filibuster. The threats became more credible and the floor leader’s need for predictability increased as the number of actual filibusters increased in the 1970s. It seems likely that time constraints, willingness to obstruct, and leadership practices were mutually reinforcing.
As early as 1973, Byrd complained about senators exploiting holds, objected to staff members placing holds without the knowledge of their principals, and observed the serious problems that holds were creating for the majority party leadership. By the 1980s, holds became a regular subject of complaints from majority leaders, bill managers, and other senators. Social scientists would call this a tragedy of the commons.[3] That is, individual senators, acting in their self-interest, cause the overuse of a resource to the detriment of all senators. Leaders did their best to work through the problems that stimulated holds and to repeatedly say there was no right to have a hold observed, but their need, as elected leaders, to operate by unanimous consent whenever possible and have cooperative colleagues limited their ability to do much about the practice.
Holds came to be used for a wide variety of purposes. Some holds were simply requests to be given advance notice of floor action, usually from senators who wanted to be prepared to offer amendments or speak. In other cases, senators placing holds wanted to make sure that any unanimous consent agreement related to a bill accommodated their amendments. Holds also became used as all-purpose hostage-taking devices—holds were placed in order to get a concession on an unrelated matter, such as scheduling a committee hearing on an unrelated bill. A few, but only a relatively small number, sought to block action on a bill or nomination. “Rolling” holds were sometimes orchestrated by a set of senators intent on delaying action by taking turns in placing holds on a measure.[3]
Further complicating matters, minority party senators registered their holds with their party’s leader, who, in turn, would note their objections to the majority leader and usually keep secret the identities of senators placing holds. Even the majority leader would feel obliged to keep confidential the identity of a party colleague placing a hold if requested. For bill authors or nominee advocates, the secrecy of holds could be a serious and frustrating obstacle to clearing the way for floor action. The only records were private communications to the party leaders and the notated calendars kept by floor staff. The minority leader, it was claimed, sometimes used the excuse of the anonymous hold of a party colleagues to obscure partisan purposes for objecting to the majority leader’s plans.
How big was the problem? The records on holds registered with floor leaders belong to senators and the two parties. Some are available in the personal papers of a few senators, but they are not a part of the Senate’s official records. In the years Dole was Republican leader (1995-1996), Republican holds numbered more the 400 per Congress.[4] The problem was huge.
Reform
Not much had changed by 2000, but concern about holds had captured the attention of outside observers and even the general public. On several occasions in the 1990s and 2000s, senators, reform committees, and party task forces proposed self-restraint on the part of senators and more assertive action by floor leaders, but little came of these efforts until 2007. A handful of senators who were fed up with holds looked for ways to change things. It wasn’t obvious what could be done. Holds were not mentioned in Senate or party rules so new rules risked creating a formal right that did not exist. The private communications between leaders and other senators were not something that could be regulated. And leaders’ pronouncements about how they would treat holds had proven to make only a small dent in the number of holds.
Reformers took the view that disclosing the identity of senators placing holds with produce more self-restraint and add an element of accountability. That was the approach of Senators Charles Grassley (R-IA) and Ron Wyden (D-OR) had worked on the issue for years and persuaded former floor leader and Rules Committee chair Trent Lott (R-MS) to pursue reform. They proposed that a senator must provide written notice of a hold to his or her leader and submit a notice to the Congressional Record. Officially, these were called “notices of intent to object to proceeding.” To ease senators’ concerns about giving away a long-standing practice, Lott suggested making the terms of the reform a standing order, which would have expired at the end of that Congress, rather than adopting the reform as a new standing rule. No action was taken, Wyden claimed, because an anonymous Republican objected to taking up the resolution on the Senate floor!
In 2007, a modified version of proposals discussed in 2003 was incorporated in an ethics reform bill.[6] The rule did not ban holds but rather was intended to make public the identity of senators placing holds under certain circumstances. It provided direction to majority and minority floor leaders that they recognize a “notice of intent” to object only if a senator, “following the objection to a unanimous consent to proceeding to, and, or passage of, a measure or matter on their behalf, submits the notice of intent in writing to the appropriate leader or their designee,” and then “submits for inclusion in the Congressional Record and in the applicable calendar” a notice not later than six session days.
The 2007 rule established a convoluted process full of ambiguity, which reflected the difficulty of regulating what had been, and remains, an informal, intra-party process. Disclosure was not required until after objection to taking up a bill is made publicly on the floor and even then the identity of the senator placing the hold need not be publicly disclosed for six days. Until actual objection was made to a unanimous consent request, the hold remained secret and a private matter between a senator and the leader, as it always had been.
The 2007 did not accomplish much. In 2010, 69 senators signed a letter in which they pledged that they would not place secret holds and demanded changes in Senate rules to end the practice. Perhaps an era of self-restraint had begun. Not so. By early 2011, senators had experienced many more holds, including an episode in early 2010 that senators of both parties found embarrassing. Richard Shelby (R-AL) objected to Senate action on nearly 70 executive branch appointments because of his interest in acquiring an Air Force tanker project and an antiterrorism center for his state. Shelby’s move brought White House criticism and national media attention. In a few days, surely under pressure from his own leadership, Shelby lifted his hold. The toothless rule, however, had gained the spotlight.
In response, the Senate’s party leaders agreed to tighten the standing order governing holds.[6] The order addressed “secret” holds, but it did not deal with a situation like the one created by Shelby in which a senator is quite willing to publicly object to the consideration of a measure. The rule gives senators two days to place a notice of intent in the Record, allows the requirement to be set aside if the senator who objects to a unanimous consent request mentions the senator for whom the objection is made, and, if the two-day requirement is not met, provides that the Record list the senator who made the objection. The rule is intended to apply to “hotline” process within each party: When a leader seeks permission to take up a matter on the Senate floor through the party’s internal notice system and a senator objects, the two-day notification requirement applies.
Even this disclosure rule is limited in effect. It does not ban holds. A floor leader can object to a unanimous consent request to consider a bill or nomination on his or her own even when another senator has placed a hold. Moreover, senators can place and remove holds in rapid sequence (a “rolling hold”) so that no senator must submit a notice of intent. The penalty for failing to comply is that the objecting senator, most commonly the minority leader, will have his name placed in the Record, which is not a problem for a minority leader and rank-and-file senators in most circumstances.
Where We Stand
Only two or three dozen “objection notices” have been published in the Record in most Congresses since 2011. The number is far, far short of the number of measures for which floor action is delayed or denied on the basis of objections from individual senators. Several features about the current state of play should be noted.
First, nominations, you might think, are less of an issue because the minority party began forcing cloture on most significant nominations since the filibuster was “nuked” for nominations in 2013, making it easier to move nominations through the Senate without unanimous consent to consider them. Nominations became even easier to move after the post-cloture debate limit was reduced from 30 to 2 hours for nominations to sub-cabinet posts and district judges.
Nevertheless, holds remain a major problem. In 2021, Senator Ted Cruz (R-TX) placed a hold on nearly all Department of State nominations and slowed Senate approvals to a record low rate during the first eight months of the Biden administration. He did so, he claimed, to protest the administration’s move to waive some sanctions against Russia on the completion of a Russian natural gas pipeline into Western Europe. By blocking dozens of nominations, Cruz makes the use of cloture—filing a petition, holding votes, conducting two hours of debate on each one—very time consuming at a time when the minority already is slowing action on all major legislation. The majority leader, who is trying to set priorities to use limited time before deadlines and adjournment is reached, finds it difficult to find time to act on them one at a time. None of them is important enough to delay action on other matters, but collectively they leave the State Department with dozens of jobs filled by temporary appointees or no one at all.
Second, one of the challenges of the reformers’ approach is that it relies on party leaders to name the holding senators. In fact, there is no way to police private communications and staff checks that inform floor leaders of their colleagues’ expectations, which leaders must receive in order to do their jobs. In the case of the majority leader, he simply does not make a request to bring up a bill, leaving the reason for doing so unstated and unrecorded. The minority leader can inform the majority leader of his intent to object to the consideration of a bill and often the majority leader sets aside the issue, at least for the time being.
Third, the reformers’ hope that transparency may reduce the number of holds may have been a reasonable hunch, but transparency hardly stands in the way of senators who gladly claim responsibility for blocking action on a bill or nomination. On August 11, Cruz took the floor cat 5:00 a.m. to object to requests to take up a few on the nominations that he was blocking. The majority leader may be experiencing fewer holds that are placed for strictly personal reasons, but the core feature of a hold—a threat to object to a unanimous consent request to take up a bill or nomination—remains.
Finally, for obvious reasons, minority obstructionism, in the form of overt filibusters, has overshadowed holds as a procedural issue in the Senate. The convenience of holds, in comparison with conducting open filibusters, continue to make the practice attractive to senators who value their personal influence in Washington. For the majority leader, they continue to signal problems that might arise if they schedule action on the affected measures or nominations.
[1] Most of the background provided here comes from my books, Call to Order: Floor Politics in the House and Senate(1989) and The Senate Syndrome (2014).
[2] The term was coined by ecologist Garrett Hardin in a 1968 paper. Political scientist Elinor Ostrom won the Nobel prize in economic science for her analysis in Governing the Commons, in which she considers solutions to the challenges to the commons problem.
[3] For counts of the types of holds in the leadership eras of Howard Baker and Robert Dole, see two papers: C. Lawrence Evans and Daniel Lipinski, “Holds, Legislation, and the Senate Parties,” (prepared for delivery at the Conference on Senate Parties, University of Oxford, April 1-3, 2005); Nicholas Howard and Jason Roberts, “The Politics of Obstruction: Republican Holds in the U.S. Senate,” Legislative Studies Quarterly, vol. 40, no. 2 (May 2015), pp. 273-294.
[4] Howard and Roberts, ibid.
[5] The Honest Leadership and Open Government Act of 2007 (P.L. 110-81), Section 512.
[6] S.Res. 28, 112-1, January 27, 2011.