• Hold the Delay

    I’ll let the cat out of the bag so I can add to what Ezra Klein has posted on Senate holds. My summer blog project is a six-post series on the filibuster, from history to recent use, from countermeasures to proposals for reform, I’ll cover it all. But it’s not summer yet. So below is just a preview of the bit on reform to Senate holds.

    To motivate it, here’s some of what Klein just wrote on the topic:

    [I]f the problem is that Republicans have bottled up more than 90 nominees, the answer isn’t to get rid of secret holds. The answer is, on the one hand, to make fewer positions Senate confirmable (there’s no reason the Senate needs to vote on the assistant secretary of state for educational and cultural affairs), and on the other, to make it harder to obstruct nominations. In reality, holds work because breaking a filibuster takes about a week even if you have the votes. The Senate has more pressing things to do than spend a week voting on the deputy director of the Peace Corps, so the Peace Corps ends up going without a deputy director.

    An excerpt from my future series discusses some of what has been proposed with respect to holds.

    [Michael] Bennet has proposed to eliminate anonymous holds on nominations and to insert an expiration date on them (30 days if bipartisan, two otherwise).  Ruth Marcus of the Washington Post also suggests that executive (but not judicial) branch nominees be immune from holds, i.e. affirmed with a simple majority vote. Since one can imagine a check on executive appointments being wise and necessary, I favor Bennet’s ideas over Marcus’s: require bipartisan support for executive nomination holds to last longer than is necessary for a senator to have time to collect his thoughts (which is a reasonable justification for a brief delay of a deliberative body).

    That is, Bennet’s idea would change what “hold” means for executive nominations. It would be a temporary delay in objection to unanimous consent, but the delay could be longer if it is bipartisan. In practice it would most often not be bipartisan and this would effectively eliminate the filibuster for executive nominations (it can be modified to only apply to a subset of executive nominations). Allowing a longer delay in the case of bipartisan support would enable the Congress to block a runaway Executive. Maybe 30 days isn’t even enough when the support is strongly bipartisan, though if it is strong enough then getting a simple majority for confirmation would be hard anyway.

    Bennet’s and Klein’s ideas are not mutually exclusive. A reform that eliminated the requirement of Senate confirmation on some class of executive positions and changed how holds operate for others is conceivable.

    By the way, Bennet has other creative ideas for filibuster reform. I’ll review them in my series.

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