Explaining Senate Holds
Reports suggest that Tommy Tuberville, R-Ala., is singlehandedly preventing the Senate from taking action on more than 200 military nominations. Tuberville placed a so-called “blanket hold” on all Department of Defense nominations in February to protest its abortion policy.
President Joe Biden called Tuberville’s actions “bizarre.” And Biden’s press secretary said it was “shameful, and asserted that it undermined national security. Defense Secretary Lloyd Austin concurred, describing Tuberville’s actions as “irresponsible.”
Tuberville’s Senate colleagues have also his actions. Majority Leader Chuck Schumer, D-N.Y., called them dangerous. Chris Van Hollen, D-Md., argued that Tuberville was “putting our national security at risk.” Even Minority Leader Mitch McConnell, R-Ky., commented that he does not support Tuberville’s effort.
Tuberville’s blanket hold has prompted many of his colleagues to call for changing the Senate’s rules to stop a senator from holding presidential nominations in the future. But the rules are not why Tuberville can hold 200+ military nominations. Holds happen when senators try to waive the rules, not when they follow them.
What is a hold?
A hold is an informal practice in which a senator indicates that they intend to object to a unanimous consent request when another propounds it on the Senate floor. A senator can only hold something when others try to approve it unanimously. When that happens, that senator can force their colleagues to follow the Senate rules instead by objecting to their request for unanimous consent to waive them. In other words, a senator can't hold something unless another allows them to do so first.
The Senate presently conducts almost all of its business by unanimous consent instead of by its rules. Senators appear to believe that following the rules takes them longer than waiving them by unanimous consent and makes legislative debates too uncertain. As a result, senators have many opportunities to place holds on bills and nominees.
How do holds work?
A senator can't hold something unless they - or their proxy - is on the Senate floor to object when another asks unanimous consent to approve it. Senators have delegated the job of monitoring the floor to their party leaders (i.e., their floor leaders). The Democratic and Republican floor leaders (i.e., Majority Leader Schumer and Minority Leader McConnell in the 118th Congress) manage the Senate on behalf of their rank-and-file senators by negotiating unanimous consent requests with each other daily. The two leaders – and their leadership staffs – keep track of their senators’ holds and ensure they are respected – at least most of the time.
In general, a senator places a hold by informing their leader - usually by letter - of their intent to object to something should it come up. Alternatively, a senator may request that their leader and the leadership staff consult them before entering into a unanimous consent agreement relating to the Senate's possible consideration of whatever they hold.
Holds are, therefore, a service that leaders provide for the rank-and-file senators in their party. How leaders provide this service varies by the leader. For example, Howard Baker, R-Tenn., and Bob Dole, R-Kan., changed how the hold process worked in the Senate Republican Conference when they became floor leaders in 1982 and 1986, respectively. In 1982, Baker informed Republican senators that he would not treat their holds as binding. Baker also reserved the right to disregard a senator's hold in certain circumstances. Dole maintained Baker's hold policy when he succeeded him as floor leader in 1986. Dole also informed Republican senators that he would no longer keep their identity secret when they placed a hold on something. Moving forward, interested senators could learn who had a hold on a bill or nominee by asking Dole or his leadership staff.
The Senate can also alter the hold process. For example, The Senate overwhelmingly approved a resolution (S. Res. 28) in 2011 to end secret holds. Specifically, the resolution created a new standing order that required a senator to publicly disclose a notice of intent to object (i.e., to hold) to a unanimous consent request. However, the resolution has not significantly altered the practice. A senator triggers its disclosure requirements only when they request unanimous consent on the Senate floor to approve something. The senator objecting may be doing so for themselves. Or they may be doing so on behalf of another, who remains anonymous if the leader and leadership staff refuse to disclose their identity to interested parties.
The Takeaway
Tuberville's blanket hold on 200+ military nominations only works if senators let it. The rules do not allow Tuberville to stop the Senate from acting on those nominations singlehandedly. And changing them won't stop similar efforts in the future as long as senators process almost all of the Senate's business by unanimous consent. Senators can't fix this problem by changing the rules because they give Tuberville power when they request to waive them by unanimous consent. However, Tuberville – or his proxy – must be on the floor to enforce his hold if another senator asks unanimous consent to confirm those nominees. And Tuberville’s proxy – Minority Leader McConnell – does not support his effort.