The legislative hold, the Senate's darkest secret.

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Sept. 1 2006 6:05 PM

The Senate's Darkest Secret

The cloak-and-dagger history of legislative holds.

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Two senators who put "secret holds" on a government accountability bill at the beginning of August were outed this week. Alaska's Ted Stevens admitted to having used the parliamentary tactic on Wednesday, and West Virginia's Robert Byrd fessed up the following day. What's a secret hold?

An anonymous objection that's made before a bill hits the floor. The Byzantine rules of the Senate make it very easy for individual lawmakers to stall ongoing debates. Since anyone can slow down or halt the chamber's business, the Senate must rely on collegiality to keep business moving forward. To that end, the Senate majority leader sets an agenda using "unanimous consent agreements" on what will be discussed and for how long. (In the House of Representatives, the majority leader can more easily set and enforce ground rules for debate.)

Daniel Engber Daniel Engber

Daniel Engber is a columnist for Slate

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The majority leader will try to make sure that no one's going to object to a unanimous consent agreement before it's raised on the floor. She'll consult with her own members ahead of time, and then check with counterparts from across the aisle. At this point, senators can tell party leaders in private that they object to that unanimous consent agreement—or that they would object to if it were brought to the floor. The majority leader takes this into consideration and in most cases holds the bill until the problems can be resolved. In principle, the only people who know the identity of the "holder" are the leader and secretary of his party. (Party leaders sometimes spill the beans to the relevant committee chairs or bill sponsors.)

Unanimous consent agreements have been around since the mid-19th century, and they became official and binding in 1914. But the hold has only been important since the 1960s. As the legislative workload grew, it became more important for the majority leader—then Democrat Mike Mansfield *—to set a rigid schedule. To make things run smoothly, Mansfield began to set up a procedure to ensure that consent agreements would be approved ahead of time. Robert Byrd took over the scheduling a few years later and formalized the system of legislative holds.

Holds have always been a custom rather than a rule, designed to speed up business rather than obstruct the passage of bills. But abuses are rampant, and lawmakers have made a hobby of decrying the system as undemocratic. Ohio's Howard Metzenbaum, for example, liked to place a hold on every tax bill so he could read it before it hit the floor. The Ohioan was so freewheeling with his holds that party secretaries took to calling them Metzes—as in, "We've got a Metz on that bill." Other senators used "revolving holds" or "rolling holds." One would put a hold on a bill contingent on some modest demand. After party leaders finagled the necessary concessions, another senator would pop up with a new hold and a new demand.

Party leaders don't always honor a hold request. If they ignore it, they're essentially calling a lawmaker's bluff and guessing he won't try to filibuster or stall the law once it hits the floor. Several senators have tried to eliminate the practice of secret holds. In 1999, leaders Trent Lott and Tom Daschle worked out a deal that all holds had to be reported to the bill sponsor and committee chair and put in writing to the party leader. But the deal fell apart four months later, when several senators put secret holds on the nomination of Richard Holbrooke for ambassador to the United Nations.

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Explainer thanks Don Ritchie of the Senate Historical Office and Steven Smith of Washington University.

Correction, Sept. 2: This piece mistakenly identified Mike Mansfield as a Republican. In fact he was a Democrat. (Return to the corrected sentence.)

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