WASHINGTON – Rep. Lynn Westmoreland thought he had a noncontroversial bill.
The Coweta County Republican's proposal to force the government to study policies that might have led to bank failures seeks answers for a district and a state ravaged by dying banks. Since 2008 Georgia has seen 70 fail, by far the most in the country. The bill passed the House unanimously in July, and Westmoreland hoped for speedy consideration in the Senate.
But the bill remains lost in a procedural thicket known as the “secret hold.”
The filibuster is the most commonly known Senate roadblock, but the upper chamber – famously described by George Washington as the saucer that cools the hot tea of the House – has myriad rules and traditions to slow or halt legislation.
In the case of a secret hold, one senator can keep a bill from being approved by “unanimous consent,” without even revealing his or her identity. A hold can be broken by bringing a bill to the floor, but that can consume days of valuable floor time.
“It’s just typical Senate,” Westmoreland said. “I guess they don’t care if . . . it’s not just Georgia. You look at Nevada where [Senate Majority Leader] Harry Reid’s at, I think they’ve had 40 percent of their banks closed. You’d think they’d want to have a hearing on it or just pass it. It’s not controversial.”
So why is it being held up?
The bill’s House backers hoped to move it swiftly before the August recess through what is known as a "hotline." That way, the bill bypasses the committee process and moves straight to the floor where it can be approved by unanimous voice vote – as the House did July 29.
But Sen. Mike Enzi, R-Wyo., placed a hold on it. An accountant, Enzi had “questions about the study’s potential impact on accounting standards,” according to spokesman Daniel Head.
“Senator Enzi doesn’t use holds lightly and wanted more time to learn about the bill and what the studies would accomplish before moving forward. After our office worked with several stakeholders and other delegations during the August recess, Sen. Enzi lifted his hold,” Head said.
Enzi was working with the American Institute of Certified Public Accountants, which claimed no qualms with the bill. The group suggested a few tweaks in how the study is conducted, but the group’s chief Congressional lobbyist, Mark Peterson, insisted, “We’ve never had any interest in killing this bill.”
Although Enzi is satisfied, Head said the “there are still several Democrat holds on the bill from members of the Senate Banking Committee.”
The Atlanta Journal-Constitution sought comment from each Banking Committee Democrat, but they did not respond or denied placing the hold. Others involved in the process claimed ignorance about who is blocking it and why. Turns out, secret holds are tightly held.
The hold was never written into Senate rules and traces its origins not to the Founding Fathers, but to the days when Lyndon Johnson ran the Senate in the 1950s, according to Senate historian Donald Ritchie. Johnson envied the efficiency of the House and started conducting more Senate business by unanimous consent, waiving rules about debate time and reading bills aloud.
The hold developed as a signal to leadership that a senator wished to object to unanimous consent, avoiding an embarrassing moment for a Senate leader on the floor. Ritchie said leaders tolerated holds remaining secret -- party secretaries tell each other which bills or nominations have holds without revealing the senator -- because it made it easier for the senator to back down without having to explain it to the public.
Holds were typically used because a senator wanted to read a piece of legislation before it got to the floor or meet a nominee before a confirmation vote, until Sen. Jesse Helms, R-N.C., started using the tool frequently to derail legislation in the 1970s, Ritchie said.
The present-day King of Holds is Sen. Tom Coburn, R-Okla., who forced an amendment to the Democratic health care reform bill to be read aloud for hours by objecting to the standard-issue unanimous consent agreement to waive the reading of bills. More recently he held up funding for surface transportation because he did not like money going to beautification projects and bike trails.
But most holds do not involve public showdowns.
"Leadership could certainly jump through all the hoops, file cloture motions and do all of that," Ritchie said. "It just eats up an enormous amount of time. It keeps everyone busy. It's just easier to move on."
The Senate voted to change the rules this year to mandate that a senator must reveal a hold in the Congressional Record within two days of placing it. Ritchie said this is the first time the hold has actually appeared in written Senate rules. But a loophole allows senators to pass holds around so no one senator is holding a bill for more than two days at a time.
That appears to be the case for Westmoreland’s bill – but, again, it’s a secret.
The bill would require studies from the inspector general of the Federal Deposit Insurance Corporation and the independent Government Accountability Office into whether certain FDIC practices might have led to bank failures. Westmoreland believes overregulation at the FDIC was at least a partial culprit.
Agency officials said the FDIC was not aiding the road block, and it has publicly stated that it is not opposed to the bill.
But FDIC deputy Inspector General Fred Gibson said Westmoreland could have accomplished his intent without all the legislative hullabaloo. Gibson said he would conduct an investigation into FDIC policies if Westmoreland simply wrote him a letter requesting one.
“I wouldn’t even say this moves [the study] to the front of the line,” Gibson said of the bill.
Yet GAO spokesman Chuck Young said a simple request to his agency could languish, while it would be required to complete a study as part of a law.
And Westmoreland was dubious that he could get what he wanted without the force of law.
"Have you ever known a federal agency to do a report, a complete inspection because of a letter?" Westmoreland said. "... That sounds good but it would never happen."
So Westmoreland waits. Georgia Republican Sens. Saxby Chambliss and Johnny Isakson have vowed to help free the bill but their efforts have been fruitless so far, as the hold remains hidden.
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