May 06 2010
Amendment 3996 - Requires bills to be publicly available for at least 72 hours before they are voted on and for Senators to affirm in writing that they have read and understand the cost of bills passed by unanimous consent
Senators Wyden and Grassley have proposed an amendment to stop “secret holds” by Senators that delay consideration of bills or nominations.
“Secret holds” are largely the result of an arcane procedure known as “hotlining” that allows the Senate to approve “secret spending” and other legislation without a vote, debate, or any public notice.
Amendment 3875 to the Wyden/Grassley amendment would bring greater transparency and accountability to the Senate by also ending “secret spending” and preventing the passage of legislation that has not been read by the members of the Senate or available to the public for review.
Wyden/Grassley Amendment 3775 would require all Senators who object to proceeding to a bill, nomination, or other matter to submit a notice for inclusion in the Congressional Record that they intend to object, thereby ending the practice of “secret holds.”
While the American people rightly expect their elected representatives to be transparent with their official actions, this amendment alone does not solve the problems associated with how the Senate considers legislation and may have unintended consequences.
Ending holds may make the Senate more transparent, but it also empowers special interest groups and encourages even more “secret spending.”
If Senators are notified that a bill will be passed by unanimous consent, unless they object or hold it, which is a daily routine practice in the Senate a Senator wishing to read or analyze the bill before granting consent will immediately become the target of special interest groups lobbying for the legislation. This empowers lobbyists, special interest groups, and powerful congressional committee chairman to apply pressure to a Senator simply trying to do the due diligence of reading and understanding a bill before agreeing to passage of laws that could have costly unintended consequences.
In the last year, the Senate passed a stimulus bill costing nearly $1 trillion that not a single Senator read before it was approved. Likewise, few if any Senators were provided sufficient time to read and analyze the massive health care bill that will significantly alter the health care delivery system in the United States and cost trillions of dollars.
While “holds” can be abused, they can also be overcome. Contrary to the impression that is often given that a single Senator can block consideration of any bill with a “hold,” no single Senator has the power to stop the Senate from doing the will of the body. A “hold” blocking a bill or nomination can be overcome by a vote of sixty Senators.
So while greater reforms may, in fact, be required to improve transparency to the operations of the Senate, rather than making it easier to pass legislation more quickly with fewer questions, the most needed reform it seems is requiring Senators to read and understand the consequences of the bills they pass.
The Senate routinely attempts to pass hundreds of bills costing tens of billions of dollars or more in secret without debate, votes, or amendments. It does so using an arcane unofficial process known as the “hotline” as well as the daily “wrap up.”
The Coburn amendment would provide transparency and accountability in the legislative process by requiring the following to be available on a public website for 72 hours prior to the Senate passing legislation without a vote:
• A cost analysis by the non-partisan Congressional Budget Office (CBO);
• The number of new programs created by the legislation; and
• The actual legislative text.
This will provide the time and information needed to ensure the full cost of a bill is known before it is passed and expose the secretive special deals that waste taxpayer money often tucked into bills.
The 72 hour rule does not apply to the following:
• Sense of the Senate resolutions;
• Any legislation relating to an imminent or ongoing emergency; or
• A unanimous consent request made when a quorum of the Senate is present.
The U.S. Senate is often referred to as “The world's greatest deliberative body.” This is because Senate rules grant each of the Senate’s 100 members rights that cannot be overridden by a simple majority, including the right to insist on full, complete, and unlimited debate.
Yet, certain Senate practices, such as the “hotline” and “wrap up,” prevent or preclude debate.
The term “hotline” or practice of “hotlining” bills does not appear in the Senate’s official rules, but this procedure is utilized nearly every day the Senate is in session. A “hotline” is an informal term for a request to members of the Senate to agree to allow a bill or resolution to be approved by the Senate without debate or amendment. A measure that is “hotlined” is recorded in the Congressional Record as a being agreed to by unanimous consent (UC).
When a bill is “hotlined,” the public is not informed. Only the offices of Senators are told. It is therefore a form of “secret spending.” Much like a “hold” can be kept from the public, so is the hotlining of bills that can cost billions of dollars.
The “wrap up” is another process conducted by the Majority Leader or his designee at the end of the day when few other Senators are in the chamber in which bills are called up for passage by unanimous consent.
Most of the legislation approved by the Senate is done so via the hotline and the wrap up under the guise of unanimous consent.
According to the Congressional Research Service (CRS), “in the last ten Congresses (110th -101st), an average of 93 percent of approved measures did not receive roll call votes” and “in the 111th Congress through February 1, 2010, 94 percent of approved measures were approved without a roll call vote.”
Every time the Senate passes legislation without full and open debate, the American people are done a disservice. The Senate should not pass a new bill if its text, purpose, and budget estimate are not available to the general public.
Taxpayers and the media should have the right to read and analyze legislation prior to its passage. Senators, likewise, have a responsibility to know the contents of legislation prior to granting consent for its passage.
How “Secret Spending” Is Hotlined
A bill is hotlined at the discretion of the Majority Leader in consultation with the Minority Leader. The leader’s office contacts each Senate office with a message on a special alert line called “the hotline” that provides information on what bill or bills the leader is seeking to pass through unanimous consent. If an office has an objection to the bill being hotlined, they are asked to call the leader’s office and state that they would like to object to the bill being passed by unanimous consent. In practice, instead of requiring explicit unanimous consent to pass a bill, the hotline process only requires a lack of dissent. The process of notifying the leader’s office of an objection to hotline is informally referred to as a “hold.”
In many instances, leadership will hotline bills for which no text, description, or budget estimates have been made publicly available.
In some Senate offices, the hotline, or request for unanimous consent to pass a measure, may never even reach Senators, and the decision to allow a bill to be approved without debate is determined by staff. Staff may also place a hold on a bill without the knowledge of a Senator.
Most Americans do not believe that the lack of an objection from unelected staff should be sufficient to pass legislation that could spend millions or even billions of dollars or significantly alter U.S. laws. Likewise, the power of an unelected staffer to secretly place a hold may also be objectionable to many Americans.
Currently, the hotline process provides the framework to easily pass major spending bills without the American people’s knowledge. Furthermore, if a senator places a hold on a bill for additional time to review, the media immediately labels the senator as an undemocratic obstructionist. By modifying the rules to involve the public to have time to review legislation, democracy and legislative debate will be truly served.
The Senate Often Approves Bills Without Providing Senators Or The Public Enough Time To Read Or Understand The Bills’ Cost Or Impact
In February 2009, Congress passed the stimulus bill less than 24 hours after the final 785 page conference agreement was provided to members of Congress and the public. At that time, the Congressional Budget Office (CBO) estimated the bill would cost $787 billion. Recently, CBO reported the bill’s price had increased $75 billion to $862 billion.
During the health care debate in December 2009, Senators had approximately 30 hours to read and comprehend the 383 page manager’s amendment to the health care bill. Buried in this bill were billions of dollars of pork projects used to secure enough votes for the bill’s passage, such as the now notorious “Louisiana Purchase,” Nebraska’s “Cornhusker Kickback,” and the “Gator-aid” for Florida. Also hidden in the fine print, the congressional staff writing the bill were exempted from being forced into the new federal health care exchanges created by the bill.
In the span of three days in March 2010, Senate leaders hotlined bills that would have cost over $14 billion.
On March 22, H.R. 4851, which provided a 30-day extension of Unemployment Insurance, COBRA, physician payments, and other subsidies adding over $9 billion in debt, was hotlined. At the time, the Senate did not even have the text of the bill publicly available.
On March 25, 2010, the Disaster Relief and Summer Jobs Act of 2010 (H.R. 4899), which would add $5.1 billion to our nation’s deficit, was hotlined.
Hotlining bills takes away the accountability for legislation approved by the Senate. Since there is no recorded vote for most hotlined bills, Senators have no culpability for most of the legislation that is approved by the Senate.
Cooling The Hotline Will Stop Secret Spending And Increase Transparency And Accountability To The Legislative Process
Legislators should not rush the passage of major pieces of legislation based often on artificial political deadlines and without sufficient time to read the bill’s text or understand its impact and cost.
The White House website states “we will publish all non-emergency legislation to the website for five days, and allow the public to review and comment before the President signs it.”
Eight Senate Democrats signed a letter calling for 72 hour to review the recently passed health care legislation. The letter stated:
“The legislative text and complete budget scores from the Congressional Budget Office (CBO) of the health care legislation considered on the Senate floor should be made available on a website the public can access for at least 72 hours prior to the first vote to proceed to the legislation. Likewise, the legislative text and complete CBO scores of the health care legislation as amended should be made available to the public for 72 hours prior to the vote on final passage of the bill in the Senate.”
It is imperative that all bills and their cost be available to the public online at least 72 hours before Congress considers legislation. The American people and members of Congress need and deserve time to read a bill, understand it, and digest its content before Congress is expected to vote on it.
Eighty-three percent (83 percent) of U.S. voters surveyed believe Congress should post legislation online for everyone to read before voting on it, according to a Rasmussen poll.
For amendment text, click here.
For CRS Report on secret spending, click here.