Comment: Senators’ ‘holds’ are undermining their own power

By Jonathan Bernstein / Bloomberg Opinion

The slow decline of the United States Congress continues.

The latest example is a practice that has helped individual senators wield disproportionate influence: the “hold.” Once a justifiable way for senators to bring attention to a problem or issue germane to their state, senators are increasingly using the hold as a publicity stunt on matters of national policy.

Three senators currently have holds on various executive-branch nominations. Republican Tommy Tuberville of Alabama, upset about what he sees as the military’s support for abortion, is blocking many military promotions; Republican J.D. Vance of Ohio, in a tantrum over former president Donald Trump’s federal indictment, is blocking Justice Department nominations; and Democrat Bernie Sanders of Vermont is blocking all nominees for health-related positions until the administration has a plan for lowering prescription drug prices.

A “hold” is simply a request from a senator that the chamber not take up a bill or a confirmation vote, typically because that senator is trying to get some issue resolved. Oftentimes a hold is an effort to get a federal agency to do something. Holds exist in part because all senators want this kind of influence available for themselves, and so are willing to defer to their colleagues even when they disagree about the reason for the hold.

It’s another example of how in the Senate, outcomes are often dictated by more than simple majority rule. Each senator has the capacity to change public policy, especially when there’s something that they care deeply about and about which most of their colleagues are indifferent. Holds on executive-branch nominations are a way for senators and the chamber to influence federal departments and agencies.

That’s generally a good thing, because it allows citizens — through their senators — to have a greater voice in the policy process. It’s also a good thing because policymaking isn’t a zero-sum game; involving more people and institutions can produce better overall results.

That said, more people and institutions can also yield chaos, or give the minority the power to override the preferences of the majority. But the House tends to strongly reflect the views of the majority party, as does the presidency. The Senate has traditionally given greater deference to the minority, not only through the hold but also with the filibuster.

Indeed, holds are really nothing more than requests backed up by the threat of filibuster. But the threat of a filibuster isn’t quite what it used to be. The filibuster is just the reality now, with the minority party filibustering almost everything already.

Which brings us to Tuberville’s hold. Military promotions, many of which have to approved by the Senate, are exceptional in that they are not normally filibustered. That means that a hold on them is more difficult to defeat than a hold on, say, a judicial nomination. If Tuberville were trying to get the Department of Defense to address some problem in Alabama, his hold would be understandable: Theoretically, it would raise the issue to the attention of someone able to address it, it would be addressed, and everyone would then move on. Instead, Tuberville is trying to bully his way to winning on a national policy issue (abortion rights) where he’s opposed by the president and a majority in the Senate.

Similarly, Vance’s attempt to tell the Department of Justice which laws to enforce on which defendants isn’t something particular to Ohio, or a relatively low-interest policy question that he can use a hold to help answer. It’s hard to see why his minority view should prevail over not only rule-of-law concerns about prosecutorial independence, but also the views of the majority of his Senate colleagues.

In fact, it’s unlikely that Tuberville or Vance expects to win on policy. They’re just using their holds to publicize their positions. If there were no such thing as a hold, they might give a press conference or call a one-day filibuster on the Senate floor. Attention-grabbing stunts, are, after all, standard practice in politics. But Congress is about more than stunts, or should be. Using the tools of policymaking just to to gain publicity will eventually erode policymaking.

If the hold continues to be abused, it will eventually die out; and probably should. And that will be a sad day for the Senate, and for the constitutional system.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.