02.05.10

The Republican Holding Government Hostage

Senator Richard Shelby's threat to block all of Obama's nominees is unprecedented obstructionism. Benjamin Sarlin on the new poster child of the dysfunctional Congress.

UPDATE: Talking Points Memo notes that Senate Majority Leader Harry Reid once employed a blanket hold himself in 2004 to prevent nuclear waste from being stored in Nevada's Yucca Mountain. Unlike Shelby's hold, the move came near the end of President Bush's first term when key posts had mostly been filled and the hold excluded any nominees related to national security.

Americans wondering why Congress has failed to pass major legislation or fill crucial national security jobs amid terrorist attacks should get acquainted with Republican Senator Richard Shelby of Alabama.

Overnight the Alabama lawmaker has become the new face of obstructionism in a Congress already beset by a minority party that proudly employs every trick at its disposal to slow business to a halt. On Friday, Sheby admitted to placing a “blanket hold” on at least 70 of President Obama's nominations for appointed positions in an attempt to keep a $40 billion Air Force earmark in his state.

“Sixty votes is now the new normal. Holds are just a symptom of how the process has become a super-majoritarian system.”

Under the Senate's arcane rules, any individual senator can anonymously block votes on nominees for any reason, from principled ideals to political extortion. While Shelby's actions technically follow the letter of the law, experts say the scope and audacity of his move put him in a league of his own.

“Shelby's move to put a hold on all of the president's pending nominations is without precedent,” a senior fellow at the Brooking Institution, Thomas Mann, told The Daily Beast. “It reveals a new low in the decline of Senate norms that have prevented individual senators and minority parties from completely obstructing the functioning of government. All for a little military facility in his home state. It's an outrage and a very sad day in the history of the Senate.”

A professor of history at the University of Texas, Lewis L. Gould, had to reach back over 100 years to New York state politics to recall anything resembling Shelby's political hostage crisis.

“That is certainly new ground for the Senate,” Gould said. He likened Shelby's move to a 19th century group of state legislators in New York known as the “Black Horse Cavalry,” who were notorious for introducing bills that targeted profits of specific corporations—only to withdraw them when the targeted business paid a sizable contribution.

“Senator Shelby is a one-man 'Black Horse Cavalry' who—if he gets his way on the [defense bill] from the White House—will then withdraw his comprehensive holds in return for cash on the barrelhead for his constituents,” he said. “[It] tends to confirm the remark of Mark Twain that 'it could be shown by facts and figures that there is no distinctly American criminal class except Congress.'”

The White House hit back hard on Friday, with Press Secretary Robert Gibbs addressing the issue in his morning briefing.

"If that's not the poster child for how this town needs to change the way it works, I fear there won't be a greater example of silliness throughout the entire year of 2010," Gibbs told reporters. "It boggles the mind to hold up qualified nominees for positions that are needed to perform functions in a government because you didn't get two earmarks."

Thus far, Senate Republican leaders have remained silent on Shelby’s actions. The hold seemed to catch Senate Minority Leader Mitch McConnell by surprise.

There appears to be no principle behind Shelby’s move beyond his anger over the earmark. In a statement through a spokesperson Friday, Shelby confirmed he had placed a hold on the nominees, oddly using the occasion to lash out at the Obama administration’s handling of terror suspects: "If this administration were as worried about hunting down terrorists as it is about the confirmation of low-level political nominations, America would be a safer place." But he offered little compelling explanation for how his criticism connected to the scale of his obstruction, complaining that a single $45 million earmark he demanded for an FBI research center in Alabama would jeopardize national security if it were scrapped.

“It is more commonly the case that holds are targeted at nominees who have some relation to a senator's concerns; most of the 70 plus nominations in question have little bearing on Air Force procurement or FBI spending,” Gregory Koger, author of the forthcoming book Filibustering: A Political History of Obstruction in the House and Senate, told The Daily Beast and said Shelby's hold was historically unmatched in scope. He said the closest example was an effort by then-Senator Larry Craig, an Idaho Republican, to hold up 850 Air Force promotions to secure more C-130 cargo planes for an Idaho base, a roadblock he withdrew in the face of public pressure.

Polls show Americans are mostly unfamiliar with the myriad techniques employed by members of the minority party, but they provide easily the most direct explanation for why the Democrats' and Obama's agenda have stalled. The GOP has threatened to filibuster nearly all major legislation, a technique in which they delay a simple majority vote by protracted debate, and which requires 60 votes in the Senate to break. A secret hold, like the one employed by Shelby, declares a senator's intention to filibuster a bill or nominee and has also been employed on a number of appointments by obstructionist Senators Jim DeMint, a South Carolina Republican,  and Republican Tom Coburn of Oklahoma. Nominees held up this way usually end up easily confirmed after the hold is released; the head of the GSA recently passed the Senate 96-0 after being blocked for nine months in this manner. But a filibuster can take many hours to break even with 60 votes lined up, making it tough for the Senate to take up the issue with so many other priorities on the clock already.

Despite the proliferation of the tactic and its crucial role in blocking health-care legislation, financial reform (also held up by Shelby), and national security posts like head of the Transportation Security Administration, only 26 percent of Americans know that 60 votes are needed to overcome a filibuster, according to a recent Pew Research Center survey. And for those that are aware, the increased acceptance of the practice may hurt the Democrats’ ability to showcase the sheer destructive scale of Shelby's move.

“Obviously, one could argue that equally glaring is the more fundamental dynamic—that as a result of the constant use of filibuster, or threat of filibuster, 60 votes is now the new normal. Holds are just a symptom of how the process has become a super-majoritarian system,” Julian Zelizer, a professor public affairs and history at Princeton University said. Nonetheless, he added that Shelby appears to be “pushing the use of holds to a new level.”

Benjamin Sarlin is a reporter for The Daily Beast. He previously covered New York City politics for The New York Sun and has worked for talkingpointsmemo.com.