When U.S. Senator Marco Rubio, a Republican, put a hold on President Joe Biden’s nominees to serve as ambassadors to China and Spain earlier this month, he was making a move commonly used by American senators since the 1950s.
Rubio last week objected to R. Nicholas Burns and Julissa Reynoso Pantaleón, U.S. ambassador nominees to China and to Spain, on the grounds they each had conflicting interests in the countries in which had been selected to serve as representatives of the United States.
But what happens next with their nominations is anything but straightforward since the written rules – and unwritten expectations – for this informal procedure have changed over the years?
What is a Senate hold and how does it work?
The U.S. Senate is governed by parliamentary procedure. Before senators can vote on a presidential nominee or a piece of legislation, a motion must be made to bring that nominee or bill up for a vote on the Senate floor. Because the chamber deals with so much business, some decisions are effectively fast-tracked under a process called unanimous consent, bypassing that motion to proceed.
The Standing Rules of the U.S. Senate allow senators to express their preferences on whether to proceed to unanimous consent. Any senator can inform the Senate majority leadership that he or she objects to unanimous consent, holding up the process.
Holds are only allowed in the U.S. Senate – one of two chambers of Congress – and reflect the importance that body holds in the governance of the United States. A senator’s vote is recognized as having such importance that he or she has wide-ranging say in how the Senate operates.
What happens after a Senator places a hold?
Just as Senate rules recognize the importance of any one senator’s say in the business of the Senate floor, the rules also acknowledge that ultimately the Senate majority leader controls the schedule.
The leader can choose whether or not to honor the hold request. Usually, the majority leader does honor the hold request because the senator (or senators) could filibuster in response. A filibuster is a means of taking up all the time on the Senate floor talking, debating or offering motions as a way of blocking action on any other matters. Since the U.S. Senate has so much business to conduct, the leader does not want this to happen.
In practice, the majority leader would rather negotiate with the senator to reach a satisfactory agreement and work on other Senate business in the meantime. In past decades, the procedures for Senate holds were much more permissive. At one time “secret” holds, or holds that were not publicly announced, were allowed. Senate rules also used to allow the minority leader much more power in determining Senate schedules, which allowed the leader to support senators in delaying certain matters for consideration.
How common is a hold? How often does it permanently obstruct a nomination?
The practice of placing holds is very common. Senators often use holds only temporarily as a way of drawing attention to their concerns or as a negotiation tactic for other legislation.
In the past, if the majority leader and the objecting senator (or senators) could not reach an agreement, there were two ways to proceed. The White House could withdraw a nomination and nominate someone else who will not receive an objection. Or the majority leader could decide the nomination is so important he or she will risk a filibuster – and all other Senate business – for a vote.
But holds became much less important after the U.S. Senate invoked the so-called “nuclear option” allowing nominees from the majority party to be passed with only 51 votes.
Democrats currently hold the thinnest of margins in the U.S. Senate. There are currently 50 Republicans and 48 Democrats serving as senators, along with two independents who usually vote with Democrats.
That leaves Vice President Kamala Harris as the tie-breaking 51st vote in her role as president of the U.S. Senate.
Despite Democrats’ ability to confirm Biden’s nominees so long as they maintain party unity in the Senate, Republicans retain the ability to slow the process down – and could block them entirely if they take control of the Senate in next year’s midterm elections.