According to a recent report by Citizens for Responsibility and Ethics in Washington (CREW), a number of Senators have failed to abide by Section 512 of the 2007 Honest Leadership and Open Government Act (HLOGA) which prohibits the use of “secret holds” on legislation and nominations but provides no mechanism for enforcement of the law. Under the system of holds, in effect since 1914 but, more commonly used since the 1960’s, a single senator can block or indefinitely stall votes or use a hold as a bargaining chip or to buy more time to study proposed laws and nominations.

The problem, from a free expression and right to know perspective, arises from the key word “secret.” Senators can, with apparent impunity, engage in censorship to hide their activities from the electorate. They anonymously use this quintessentially undemocratic maneuver while keeping the public totally in the dark about both the fact of the hold and the reasons for it.  This is the very antithesis of open government.

Under the provisions enacted on HLOGA, a senator must now, among other procedures, place a notice of the hold on the appropriate Senate calendar with his or her name attached to it but since the HLOGA has been in effect, there have been only two public holds placed on the calendar. In order to determine if there were, in fact, other holds during that period, CREW made a day-by-day analysis of the Senate Calendar of Business for the relevant period. They identified several nominations and bills, pending after HLOGA was passed, that appeared to have secret holds on them but which had no objections and no public statement from the “holder” were found. These included, ironically, the Presidential Records Act Amendments, a public transparency bill and the nominations of Dr. John Holdren as Director of the White House Office of Science and Technology and Jane Lubchenco as Administrator of the National Oceanic and Atmospheric Administration (NOAA), both agencies implicated in the censorship of science by the Bush Administration. In some instances the senators later admitted their roles while in other instances there was only speculation, or not even that, as to who put on the secret holds and why.

CREW addresses these issues from the perspective of ethics and has requested that the Senate Select Committee on Ethics investigate the matter. NCAC views the problem through the lens of censorship and the public’s right to know. Either way, it is a disappointing bolt on the reputation of the so-called “world’s greatest deliberative body.”