Proposals to Reform “Holds” in the Senate

Walter J. Oleszek
Senior Specialist in American National Government

“Holds” are an informal senatorial custom unrecognized in Senate rules or precedents. They allow Senators to give notice to their respective party leader that certain measures or matters should not be brought up on the floor. Implicit in the practice is that a Senator will object to taking up a bill or nomination on which he or she has placed a hold. The Senate’s majority leader, who exercises primary responsibility for determining the chamber’s agenda, traditionally in consultation with the minority leader, is the final arbiter as to whether and for how long he will honor a hold placed by a Member or group of lawmakers.

The exact origin of holds has been lost in the mists of history. Their ostensible purpose is to provide advance notice to Senators as to when a measure or matter, in which they have expressed an interest by placing holds, is slated to be called up by the majority leader. However, since the 1970s, holds came into greater prominence in the Senate as more Members began to employ holds as a way to try to accomplish their policy or political objectives.

In a Senate with a large and complex workload, and more dependent than ever on unanimous consent agreements to process its expanding business, holds provide significant leverage to Members who wish to delay action on legislation or nominations. Given the heightened potency of holds, there have been many initiatives over the years to reform the Senate’s hold practices.

This report examines, over a more than three-decade period, a wide range of proposals to reform holds. In general, the objective of these recommendations is not to abolish holds but to infuse more accountability, uniformity, and transparency in their use and to make it clear that holds are not a veto on the majority leader’s prerogative of calling up measures or matters. The historical record underscores that it has been difficult to revise a practice, now a regular feature of the Senate’s workways, that provides parliamentary influence and leverage to every Senator. The reform proposals examined are as follows: 

(1)   Impose time limits 

(2)   Abolish holds 

(3)   Uniform procedure for holds 

(4)   No indefinite, or permanent, holds 

(5)   Prohibit blanket holds 

(6)   End secret holds 

(7)   Require more than one Senator to place a hold 

(8)   Permit a privileged resolution to terminate holds 

(9)    Restrict filibuster opportunities (10) Determination by majority leader to proceed

(10) Determination by majority leader to proceed

Date of Report: August 31, 2011
Number of Pages: 23
Order Number: RL31685
Price: $29.95

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Protection of Classified Information by Congress: Practices and Proposals

Frederick M. Kaiser
Specialist in American National Government

The protection of classified national security and other controlled information is of concern not only to the executive branch—which, for the most part, determines what information is classified and controlled—but also to Congress. The legislature uses such information to fulfill its constitutional responsibilities, particularly overseeing the executive, appropriating funds, and legislating public policy. Congress has established numerous mechanisms to safeguard controlled information in its custody, although these arrangements have varied over time, between the two chambers, and among offices in each. Both chambers, for instance, have created offices of security to consolidate relevant responsibilities; but these were established nearly two decades apart. Other differences exist at the committee level, regarding the availability and use of information in committees’ custody. Proposals for change, some of which are controversial and could be costly, usually seek to set uniform standards or heighten requirements for access.


Date of Report: August 31, 2011
Number of Pages: 13
Order Number: RS20748
Price: $29.95

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Cost-Benefit and Other Analysis Requirements in the Rulemaking Process

Curtis W. Copeland
Specialist in American National Government

Regulatory analytical requirements (e.g., cost-benefit and cost-effectiveness analysis) have been established incrementally during the last 40 to 50 years through a series of presidential and congressional initiatives. The current set of requirements includes Executive Order 12866 and OMB Circular A-4, the Regulatory Flexibility Act (RFA), and the Unfunded Mandates Reform Act (UMRA). These requirements vary in terms of the agencies and rules they cover, and the types of analyses that are required. The most extensive and broadly applicable of the requirements are in Executive Order 12866 and OMB Circular A-4, but they do not apply to independent regulatory agencies. The statutes that provide rulemaking authority to independent regulatory agencies often require them to “consider” regulatory costs and benefits, but do not specifically require cost-benefit analysis. An Office of Management and Budget report indicated that independent regulatory agencies did not estimate both costs and benefits for any of the major rules they issued in FY2010. Cabinet departments and other agencies estimated monetary costs and benefits for some, but not all, of their rules.

A number of bills have been introduced in the 112th Congress that would codify and expand the executive order’s requirements for cost-benefit analysis (S. 602, H.R. 1281, S. 1219, and H.R. 2204); apply the executive order’s principles to independent regulatory agencies (S. 358); require cost-benefit analysis for certain agencies’ rules (H.R. 1840, H.R. 2175, H.R. 2308, and S. 1292); or improve the implementation of the RFA and UMRA (S. 474, S. 1030, H.R. 527, S. 817, S. 1189, and H.R. 373). Enactment of some or all of these bills would add to the existing incrementally developed patchwork of analytical requirements, and some would significantly increase the number of rules for which analyses would be required.

Congress could decide to keep the existing analytical framework in place, or could enact one or more of these reform proposals. Another more comprehensive approach could be to consolidate all of the analytical requirements in one place, and perhaps expand those requirements to include more agencies or rules, or to require different types of analysis. To do so, or to simply cover independent regulatory agencies by the executive order, the President could arguably amend Executive Order 12866 and OMB Circular A-4, or Congress could enact legislation. Any such changes must be cognizant of the state of existing law in this area, and the resources and data required for agencies to carry out the analyses.


Date of Report: August 30, 2011
Number of Pages: 43
Order Number: R41974
Price: $29.95

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Pages of the United States Congress: History, Background Information, and Program Administration

R. Eric Petersen
Specialist in American National Government

For more than 180 years, messengers known as pages have served the United States Congress. Pages must be high school juniors and at least 16 years of age. Several incumbent and former Members of Congress as well as other prominent Americans have served as congressional pages.

Senator Daniel Webster appointed the first Senate page in 1829. The first House pages began their service in 1842. Women were first appointed as pages in 1971. In August 2011, House leaders announced the termination of that chamber’s page program.

Senate pages are appointed and sponsored by Senators for one academic semester of the school year, or for a summer session. The right to appoint pages rotates among Senators pursuant to criteria set by the Senate’s leadership. Academic standing is one of the most important criteria used in the final selection of pages. Selection criteria for House pages was similar when the page program operated in that chamber.

Prospective Senate pages are advised to contact their Senators to request consideration for a page appointment.


Date of Report: August 30, 2011
Number of Pages: 7
Order Number: 98-758
Price: $19.95

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The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation

Todd Garvey
Legislative Attorney

Edward C. Liu
Legislative Attorney

The state secrets privilege is a judicially created evidentiary privilege that allows the federal government to resist court-ordered disclosure of information during litigation if there is a reasonable danger that such disclosure would harm the national security of the United States. Although the common law privilege has a long history, the Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds, 345 U.S. 1 (1953). In Reynolds, the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department that has control over the matter, after actual personal consideration by that officer. Second, a court must independently determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very matter the privilege is designed to protect. If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by a court.

A valid invocation of the privilege does not necessarily require dismissal of the claim. In Reynolds, for instance, the Supreme Court did not dismiss the plaintiffs’ claims, but rather remanded the case to determine whether the claims could proceed absent the privileged evidence. Yet, significant controversy has arisen with respect to the question of how a case should proceed in light of a successful claim of privilege. Courts have varied greatly in their willingness to either grant government motions to dismiss a claim in its entirety or allow a case to proceed “with no consequences save those resulting from the loss of evidence.” Some courts have taken a more restrained view of the consequences of a valid privilege, holding that the privilege protects only specific pieces of privileged evidence. In contrast, other courts have taken a more expansive view, arguing that the privilege, with its constitutional underpinnings, often requires deference to executive branch assertions and ultimately, leaves a party with no other available remedy.

The state secrets privilege arises in a wide array of cases, generally where the government is a defendant or where the government has intervened in a case between private parties to prevent the disclosure of state secrets. Recently, the privilege has been characterized by a number of highprofile assertions—including invocation of the privilege to defend against claims arising from the government’s “extraordinary rendition” practices, challenges to the terrorist surveillance program, and claims against various national security agencies for unlawful employment practices. The government has also intervened and invoked the privilege in a significant number of cases involving claims against government contractors. Most recently, in May of 2011, the Supreme Court held that the valid invocation of the state secrets privilege could render a defense contracting dispute nonjusticiable, leaving both the defense contractor and the Pentagon without any judicial remedies to enforce the contract.

This report is intended to present an overview of the protections afforded by the state secrets privilege; a discussion of some of the many unresolved issues associated with the privilege; and a selection of high-profile examples of how the privilege has been applied in practice.


Date of Report: August 16, 2011
Number of Pages: 22
Order Number: R41741
Price: $29.95

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