The Senate released a memo today detailing how the Senate will recognize and disclose secret holds after changing the rules around holds. The memo brings some more confusion to the subject unfortunately. Brian Buetler reports for TPM:

The gist -- and what will actually cause the cultural ground to shift a bit under the senators themselves -- is that members can no longer expect to keep their objections hidden from each other. While the media might still remain in the dark about who's gumming things up in the Senate (something reporters won't like at all) advocates -- of a bill, nominee, or other issue -- will have a right to know.

Here's how the memo describes it: "[F]rom here on out, after a "hotline" is conducted, after 2 days and a status inquiry from the Democratic requester, the floor staff will inform the requester what offices have concerns about the bill."

In the past, Senators could do this all privately. That created the incentives for holds -- members didn't have to worry about brushing up against colleagues and allies. However, the new regime could lead to a situation where senators enlist proxies to place holds for them. So the real impact is to be determined.

Which brings me to the point that I pointed out my previous blog post about secret holds. As David Waldman has said for some time:

[T]here's simply no way to force a Senator to put his or her name to a hold. So long as the Senate attempts to bring a bill or nomination to the floor by unanimous consent, all anyone needs to do is object and claim that they object on someone else's behalf to prevent the bill from moving. And absolutely nothing about that process, nor any change that can be made to it, can force the objecting Senator to give up that name.But there is a way to put a name there, nonetheless. And it exists right now, and requires exactly zero changes to the rules. And it's simple as all hell: the Senator who objects owns that hold.

If a proxy comes in to offer a hold, than the public should treat the proxy as the Senator with the hold.

The Senate just voted to end the practice of secret holds by a 92-4 vote. The four senators voting against ending secret holds were Sens. Jim DeMint, Rand Paul, Mike Lee, and John Ensign. In the future the names of the senator objecting to a bill, or the name of the senator objecting to a bill on behalf of another senator, will be published automatically.

This new rule is excellent news and it also brings about a much-needed change in how we view holds. Here are the details:

If a senator objects to a bill their name will be published in the Congressional Record and in a new part of the Senate Calendar. If a senator objects on behalf of another senator the objecting senator will have their name printed in the Congressional Record and the Senate Calendar so long as the senator for whom they are objecting on behalf of does not come forward.

David Waldman has repeatedly made the case that the public needs to treat the objecting senator, whether they are objecting on behalf of someone or not, as the senator with the hold. By printing the name of the objector, even if the hold is on behalf of another, the new process treats the objector as the senator with the hold. We should all treat the person who objects to a bill as the person with the hold on the bill.

Congratulations to the Senate for ending this terrible practice. Now the rest of us need to do what David Waldman said and treat the person whose name winds up in the Congressional Record or the Senate Calendar as the person holding the bill up, no matter what they say.

The Senate has yet to convene for its first official legislative day and thus we have to wait for them to return to Washington to pass much discussed new rules that would govern Senate operations. While most of the focus has been on potential changes to the filibuster rule, another long-standing practice appears headed for changes: the secret hold.

A number of senators are organizing to do away with the secret hold for good. Last year, more than sixty-seven senators signed a letter calling for the end of secret holds. Sunlight has long supported the ending of secret holds.

Even while we speak of a possible end to secret holds, a group of good government groups and journalists are seeking the identity of the senator who put a hold on a whistleblower protection bill. This bill would protect government whistleblowers from punishment for exposing corruption, illegality, or waste. Often the most galling examples of the secret hold come when trying to block legislation aimed at making our government less corrupt and more transparent.

Last year, I wrote about the history of these egregious secret holds on transparency bills and the work that Sunlight and others, like Porkbusters, did to expose the secret holder:

Back in 2006, the year of Sunlight's birth, we joined a coalition of blogs and anti-government waste groups like Porkbusters to uncover the secret hold on the Federal Funding Accountability and Transparency Act (FFATA) that went on to create USASpending.gov. FFATA was sponsored by Sen. Tom Coburn and then-Sen. Barack Obama. It was, perhaps, the President's chief accomplishment as a senator.

Over 2007 and 2008, there were a series of secret holds placed on a bill to require senators to file their campaign finance reports electronically. Yet again, we waged an outing campaign against the secret holder. This one was less successful than the FFATA secret hold outing as everyone denied having the secret hold.

Over at WNYC On The Media is working with the Government Accountability Project to expose the senator who placed the secret hold on the whistleblower protection bill. I encourage all of our readers to go the WNYC site and use their tool to call your senator and ask them directly.

Here's an interesting development in the world of secret holds: the Nobel Prize committee just awarded Peter Diamond the Nobel Prize in Economics. Earlier this year Diamond was appointed to the Federal Reserve Board by President Obama. His nomination has since been returned to the President due to a secret hold placed by unnamed Republicans.

This functionally means that Diamond's nomination was rejected due to the intransigence of unknown elected representatives. He was approved by the overseeing committee, but his nomination was refused time to come to the floor as Republicans offered objections based on the stated objection of someone within their caucus.

(Tyler Cowen has a good run-down on Diamond's work here.)

Casting aside the merits of the nomination, it does not seem fair to either the nominee, the President or the people who elect senators to have decisions made in this opaque and clouded manner. The nominee deserves a fair and open hearing. The President, historically, has largely been given leeway in his appointments. And the people of this nation deserve to have an open and honest debate over legislation and nominations that does not involve secret senators blocking action for unknown reasons. That simply breeds mistrust and confusion.

The Sunlight Foundation has repeatedly called on the elimination of the secret hold from the Senate rules. The bipartisan Grassley-Wyden legislation is the best vehicle to end this abusive practice and is supported by nearly 70 senators. Yet the Senate refuses a vote on the legislation and continues to allow bills and nominations to be the scuttled based on the secret objections of unnamed senators. Is this any way to govern?

David Waldman has offered another solution to the whole secret hold mess. Declare that there are no secret holds by proclaiming the objecting senator, whether they say they are objecting on behalf of someone else or not, as the holding senator. Thus, whomever comes to the floor to object is the senator who is responsible for said objection and the blocking of the legislative process. This is also a novel approach that deserves to be looked at.

There seems to be a recurring theme with transparency legislation. Senators just love to block these types of bills. There are three possibilities here: (1) senators fear transparency and openness, (2) senators have legitimate questions, (3) senators have a base need to remind everyone of the true definition of irony (they're still mad at Alanis Morrisette).

Into this theme steps Sen. Jim DeMint, blocker of a bill that would end the practice of secret holds in the Senate. DeMint joins the pantheon of such greats as Sens. Ted Stevens and Robert Byrd who placed secret holds on a bill to create an online database of federal spending (USASpending.gov) and sundry Republican senators who stood up to secretly block a bill to require senators to file their campaign finance reports electronically. Take a bow, senator.

Now, as Politico reports, DeMint, who previously derailed the secret hold legislation successfully with secondary amendments related to guns and other unrelated nonsense, has offered to drop his objection to the bill if another piece of transparency legislation is attached to it. This would be the Coburn-McCaskill bill to require all bills that are "hotlined" to be posted online with a cost estimate three-days before they come to the floor.

This sounds like a far more reasonable compromise than any of the other proposed amendments to the bill that DeMint has offered in the past. It's much better to attatch a related provision than a non sequitor provision about guns or border fences. That being said, I still can't figure out which one of three categories that DeMint fits into above.

Let's hope they find a way to end the secret hold practice soon.

According to POGO and TPM Muckraker, the hold on the nomination of Neil Barofsky to head the bailout oversight office has been released. Still no word on whether the senator who placed the hold was Sen. Jim Bunning. Kagro X, at Congress Matters, speculates as to whether the disclosure rules for holds forced the offending senator's hand.

TPM Muckraker has been all over the hold placed on the nomination of Neil Barofsky to lead the oversight of the bailout. All signs point to the initial suspect, Sen. Jim Bunning. If Bunning stays shut like a bad clam, the identity will have to come out in a few days anyways. In replying to my post from two days ago, Kagro X writes at Congress Matters:

I actually count three session days since Chairman Dodd's November 21st statement noting the hold -- pro forma sessions on the 24th, 26th and 29th. The calendar at Majority Leader Reid's site lists a pro forma session for yesterday, December 2nd, with another scheduled for Friday, plus a working session on Monday. That'd take us to six session days since Dodd's acknowledgment of the hold, which may or may not have been in place for a few days prior to the Dodd statement.

So in all likelihood, next week will see us pass the necessary sixth session day required under the new rule, and we'll know who the chowderhead behind this delay is.

According to TPM Muckraker, a Senate Republican placed a secret hold on the nomination of Neil Barofsky to lead the office of special inspector for the bailout.

Earlier this month, the Bush administration nominated Neil Barofsky, a federal prosecutor, to be the Treasury Department's special inspector general on the bailout program. That's a crucial post, given the astronomical sums at issue, the broad authority that Treasury has been given to distribute them, the concerns that have been raised about possible conflicts of interest, and the general urgency of our efforts to prevent an economic collapse.

So you'd think Congress would be doing everything it could to get Barofsky confirmed right away. You'd be wrong.

Last week, Sen. Chris Dodd, the Connecticut Democrat who chairs the banking committee, issued a little-noticed statement saying that although the nomination "was cleared by members of the Senate Banking Committee, the leadership of the Senate Committee on Homeland Security and Governmental Affairs, and all Democratic Senators," it was "blocked on the floor by at least one Republican member." (itals ours.)

We've had our fair share of experience with secret holds, having fought to reveal the identities of those secretly blocking the Coburn-Obama bill (FFATA) and the campaign finance e-filing bill (S. 223). The first thing of note is that secret holds were, for the most part, abolished during the 110th Congress. The Honest Leadership and Open Government Act mandated the disclosure of the identity of a senator secretly blocking a "measure or matter" "not later than 6 session days" after the initiation of the hold.

The Barofsky nomination provides a good example of the loopholes in this mandate of disclosure. If a bill or, in this case, a nomination comes up prior to a long recess, the disclosure of the offending senator's identity will have to wait until the Senate reconvenes for at least 6 session days, not calendar days. So far, since the nomination was blocked, the Senate convened for two session days. While they are expected to convene tomorrow for a pro forma session, it is unknown whether the Senate will convene for four more days by the end of the year.

TPM Muckraker suspects Sen. Jim Bunning to be the secret hold senator, having opposed the full funding of the office that Barofsky is nominated to lead. If you can't wait another four session days to find out who is blocking oversight of the $700 billion bailout, feel free to call your senator and ask. Leave your findings in the comments or head over to TPM Muckraker and let them know.