Secret hold not so secret any more

by Charles N. Davis

Congress, apparently content to explore ever new depths in public disapproval, is on the verge of having a single member derail the most meaningful reform in years of the federal Freedom of Information Act.
How, you ask, when overwhelming majorities support the legislation in both the House and Senate? The secret hold, of course. Ever heard of the secret hold? Its a beauty a real relic of the stuffed shirts of yesteryear, smoke-filled rooms and fat cats with stogies guffawing over the latest bamboozle of the taxpaying schmucks. Think country clubs, secret handshakes and bizarre rituals.
Members of the Society of Professional Journalists, the nations largest journalism-advocacy organization, used the power of the blogosphere to find out whose legislative bludgeon was buried in the back of open government. We called every senator, one by one, until at last when it became clear he could hide no longer Sen. Jon Kyl (R-AZ), came blinking and grimacing into the sunlight and admitted that it was he who placed a secret hold on a bill that addresses secrecy in government. You cant make this stuff up.
This is how it works in Washington, kids: Sen. Kyl this years Secrecy Champion has several as-yet-unstated objections to the Freedom of Information Reform Act, a truly wonderful bill that would significantly improve one of the strongest tools Americans have to supervise the inner workings of government and to hold elected officials accountable.
The bill has plenty of bipartisan support. It is the product of tireless work and advocacy by many open government and press freedom groups and fine legislative craftsmanship by Senate Judiciary Committee Chairman John Cornyn (R-TX) and Sen. Patrick Leahy (D-VT). The U.S. House of Representatives in March approved a version of the bill with 80 Republicans joining 228 Democrats for a 308-117 vote. The Senate Judiciary Committee then unanimously sent the measure forward to the full Senate for a vote.
In your civics book, this would be the moment where our senators hold a public debate on the merits and demerits of the legislation at hand, then vote. The votes are then counted, and if the senators who support the bill outnumber those who oppose it, well, you get the idea.
But no, not when senators, using an archaic parliamentarian parlor trick, can stop a bill dead in its tracks merely by telling their partys Senate leader or secretary that they wish to place a hold on the bill. Thats when Sen. Kyl who routinely charts a brave course on the immigration debate, and can often be counted on to reason rather than bloviate slipped in the hold.
The practice of honoring secret holds has no basis in law and has no support in Senate rules. Its a good-ol-boy creation and another of the seemingly endless perks of the Senate, where the rules always seem to benefit the representatives far more than the pesky public.
Oh, I know whats coming: the inevitable blathering about the worlds greatest deliberative body and its need for timeless soul-searching and candor and how terribly hard legislating can be. Well hear all about collegiality and efficiency and the grand traditions that make the Senate special.
Spare me. Tear down the whole argument in favor of secret holds, and it comes down to cowardice: it allows a senator to cower behind anonymity while signaling their dislike for a piece of legislation. More to the point, it takes what would be a single losing vote on the floor of the Senate and converts it, magically, into stoppage of legislation. Thats awesome power with absolutely no accountability.
Sen. Charles Grassley (R-IA), who discloses his holds as a matter of practice, introduced an amendment in 2006 to force all senators to identify themselves when placing a hold on a bill. That proposal has gone nowhere fast. Are you surprised?

Charles N. Davis, a member of SPJs Freedom of Information Committee, serves as the executive director of the National Freedom of Information Coalition at the University of Missouri School of Journalism.

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