WASHINGTON — Nearly 100 people are sitting on their hands, prevented from filling jobs as judges, diplomats and top government officials, because of an arcane Senate custom that allows a single lawmaker, often silently and anonymously, to prevent a yes-or-no confirmation vote.
That singular power is playing havoc with crucial nominations, say Democrats, who complain that the Republican minority is using the practice of "holds" to obstruct the Obama administration's agenda. Holds are also used to indefinitely block legislation to fund agencies or projects.
These holds, which frequently have nothing to do with the qualifications of the nominee, have become more prevalent as the Senate becomes more partisan. The Senate's No. 2 Democrat, Dick Durbin of Illinois, said Thursday that there are currently 96 nominees waiting for a confirmation vote. There were 20 at a similar moment during George W. Bush's administration, he said.
Many of President Barack Obama's stalled nominees are in line for what appear to be noncontroversial jobs in agencies such as the Peace Corps, Amtrak and the Marine Mammal Commission. Some confirmation delays, however, are clearly disruptive.
Durbin said Larry Robinson, waiting six weeks to become assistant secretary of commerce for oceans and atmosphere, got a confirmation vote Thursday only because of the Gulf oil spill. "The embarrassment level for the hold became overwhelming," he said.
The National Transportation Safety Board met Tuesday to discuss findings from last year's splashdown of an airliner in New York's Hudson River. But only three board members – instead of five – were there, because the Senate hasn't acted on two nominees, one a Democrat and one a Republican. The Democrat has been on the Senate's docket since December.
Freshman Sen. Claire McCaskill, D-Mo., tried unsuccessfully last week to get a Senate vote on the two NTSB nominees and is now leading a campaign against secret holds.
McCaskill recently tried 76 times in one day to get the Senate to take up Obama administration nominees to fill top government jobs. In every case, she was blocked. But McCaskill said she hoped to expose those engaged in secret holds.
She said Thursday that so far only one senator, Republican Tom Coburn of Oklahoma, had come forth to acknowledge his holds.
She was joined by another freshman, Rhode Island Democrat Sheldon Whitehouse, who made similar challenges to what he referred to as the "bare-knuckles politics of obstruction." He said those nominations subject to secret holds have been stalled an average 106 days.
Not all holds are secret. Sen. Jim Bunning, R-Ky., left Miriam Sapiro, nominated to be deputy U.S. trade representative, dangling for more than six months because he wanted the Office of the U.S. Trade Representative to go after Canada for banning flavored cigarettes.
Bunning allowed a vote on Sapiro in December but, still unsatisfied, slapped holds on two other nominees, including Michael Punke, who was to lead the USTR in World Trade Organization negotiations. Obama last month included the two in a list of 15 recess appointments. That's a stopgap move taken when Congress is out of town that allows a nominee to fill a job until the end of a congressional session.
Most people who hear about Senate holds "probably think it is a hair spray or a wrestling move," said Sen. Ron Wyden, D-Ore. But it's "one of the most powerful tools a member of the Senate has today to influence policy," said Wyden, who has introduced a bill to curtail the practice.
There's no mention of holds in the Senate's rules, but they have become increasingly used in recent years because the Senate has shifted to doing much of its work by "unanimous consent" agreements between the party leaders. If a single senator notifies the leaders he objects, that bill or nomination can't advance without a time-consuming process usually requiring a 60-vote majority.
There's no serious effort to ban holds, but there is growing sentiment that senators should at least be more open about applying them. "If any of my colleagues have holds on either side of the aisle, they ought to have the guts to go public," said Sen. Charles Grassley, R-Iowa, Wyden's longtime partner in opposing secret holds.
In a 2007 ethics bill, Wyden and Grassley succeeded in winning a six-day limit on anonymous holds, after which the senator placing one must identify himself and give a reason for wanting to block a vote on a nomination or bill. But that clock begins to tick only when someone – as McCaskill did – goes to the Senate floor and tries to bring up a nominee or bill.
Senators can also still keep a hold secret by abandoning it before the six days is up and getting a colleague to take it up.
Now, Wyden and Grassley want to make senators disclose their holds within two days of placing them, whether or not anyone has made the formal effort to bring a nomination to the floor for consideration. The bottom line, Wyden said, "is that if you can't make a good public case for why you are doing something, you shouldn't be doing it."