Hold on

As we’ve previously written, many lawyers are familiar with the use of the term holding to describe a court’s ruling. However, lawyers and public policy professionals in the US use hold in another, very specific context. As the news has reported in recent days, one senator can hold up action on any and all items in the Senate through the use of a hold. Indeed one senator, Senator Richard Shelby, has in the past week, though he subsequently reduced the broad scope of it. Until this week he had been holding Senate action on 70 presidential nominations.
In this context, a hold describes an anonymous objection one or more senators may have to scheduling a matter for consideration. When a senator places a secret hold on a measure it signals serious opposition to the leaders of the Senate. In most instances, Senate leaders suspend action on the measure until the objecting senator is ready to move forward. While in theory holds are not binding, they often are in practice. And they are so easy to place, that there are often hundreds in effect.
Holds are a Senate custom designed to speed up, not to obstruct, business. They work because the Senate rules promote deliberation by permitting Senators to debate without limitation and by precluding a simple majority vote from ending debate. In addition, Senators may generally offer as many amendments as they wish to pending legislation. These rights of extended debate and unlimited amendments make the Senate’s schedule unpredictable because any one Senator can stall the Senate simply by exercising these basic rights. In practice, Senate leaders negotiate unanimous consent agreements which limit debate by placing voluntary restrictions on debate and amendment thereby expediting Senate business. To reach unanimous consent all Senators must agree, or consent, to a pending request to accept limits on their right to debate and offer amendments. Traditionally, Senate leaders work to ensure that all senators agree to a unanimous consent agreement before raising it on the Senate floor, and it is during this process that senators can privately inform leaders that they object.
Senate leaders like to use – some would argue abuse – holds for behind-the-scenes negotiations to leverage changes in legislation or in government policies. Although abused and often criticized as undemocratic, the tradition of honoring holds remains. Today, however, there are efforts to change the Senate rules by removing the cloak of secrecy which surrounds holds by requiring lawmakers to identify themselves when they want to hold a bill.