Federal Reserve Chair Ben Bernanke (photo: talkradionews via Flickr)

Federal Reserve Chair Ben Bernanke (photo: talkradionews via Flickr)

Now that at least four US Senators have put a hold on Ben Bernanke’s nomination to another term as the chair of the Federal Reserve, what is the process going forward?

Formally speaking, there is no hold system for nominations in Senate committees, or on the Senate floor, for that matter. The hold is an informal process where Senators advise the leadership that they will not give unanimous consent to bring a bill or a nomination to a vote. This Congressional Research Service report about the nomination process has a section on Senate holds:

A hold is a request by a Senator to his or her party leader to prevent or delay action on a nomination or a bill. Holds are not mentioned in the rules or precedents of the Senate, and they are enforced only through the agenda decisions of party leaders. A recent directive of the Senate aims to ensure that any Senator who places a hold on any matter (including a nomination) make public his or her objection to the matter.

The effectiveness of a hold ultimately is grounded in the power of the Senator placing the hold to filibuster the nomination and the difficulty of invoking cloture. The rules governing cloture in relation to nominations are discussed in a later section of this report. In another sense, however, holds are connected to the Senate traditions of mutual deference, since they may have originated as requests for more time to examine a pending nomination or bill.

Senators place holds on nominations for a number of reasons. One common purpose is to give a Senator more time to review a nomination or to consult with the nominee. Senators may also place holds because they disagree with the policy positions of the nominee. Senators have also admitted to using holds in order to gain concessions from the executive branch on matters not directly related to the nomination. Depending on the timing of the hold and the support for the nomination, a hold can kill a nomination by preventing it from ever coming to the Senate floor.

There are ways to circumvent the hold, but they take up floor time and require cloture votes, which the leadership may or may not want to do. In addition, breaking a hold through cloture could motivate a Senator to use any number of other parliamentary procedures to essentially shut down the Senate. In a body operating under the rules of unanimous consent, every Senator has some amount of power. In the Bernanke case, four holds means four Senators who can threaten to stall.

Informally, some committees have a process for holding nominees as well. It may not be called a hold, but the minority can stop a vote in a variety of ways – by denying a quorum on the day of the vote, for example.

Though some of those Senators placing the Bernanke hold are part of the Senate Banking Committee, they for the most part did not allude to bottling up the nomination in that committee before it reaches the Senate floor. Jim DeMint’s statement says “I will also object to floor consideration of Mr. Bernanke’s nomination until the Senate votes up-or-down on the Federal Reserve Sunshine Act,” and the others follow suit.

A Senate aide tells FDL News that there is no hold process in the Banking Committee. The aide also says that Sen. Chris Dodd, chair of the committee, is moving deliberately to consider the Bernanke nomination, which the President made in August and which just got its hearing this week. A committee vote for the nomination has not been scheduled yet. As chair, Dodd could schedule that vote at any time. Bernanke appears to have the votes in committee for now, but even if it didn’t succeed, Bernanke’s nomination could be brought to the floor anyway through a special process.

The point is, if the leadership wants a nominee on the floor, they have considerable latitude for getting him or her there. If Bernanke reaches the floor despite these holds, there would have to be a cloture debate, eating up 30 hours of floor time, and a vote on the motion to proceed to his nomination that would need 60 votes.

Meaning that it’s really up to Harry Reid to decide on whether Ben Bernanke gets a vote. He’s certainly honored lots of holds on the Republican side in the past. He has every opportunity to do so in the case of Ben Bernanke.

Now that at least four US Senators have put a hold on Ben Bernanke’s nomination to another term as the chair of the Federal Reserve, what is the process going forward?

Formally speaking, there is no hold system for nominations in Senate committees, or on the Senate floor, for that matter. The hold is an informal process where Senators advise the leadership that they will not give unanimous consent to bring a bill or a nomination to a vote. This Congressional Research Service report about the nomination process has a section on Senate holds:

A hold is a request by a Senator to his or her party leader to prevent or delay action on a nomination or a bill. Holds are not mentioned in the rules or precedents of the Senate, and they are enforced only through the agenda decisions of party leaders. A recent directive of the Senate aims to ensure that any Senator who places a hold on any matter (including a nomination) make public his or her objection to the matter.

The effectiveness of a hold ultimately is grounded in the power of the Senator placing the hold to filibuster the nomination and the difficulty of invoking cloture. The rules governing cloture in relation to nominations are discussed in a later section of this report. In another sense, however, holds are connected to the Senate traditions of mutual deference, since they may have originated as requests for more time to examine a pending nomination or bill.

Senators place holds on nominations for a number of reasons. One common purpose is to give a Senator more time to review a nomination or to consult with the nominee. Senators may also place holds because they disagree with the policy positions of the nominee. Senators have also admitted to using holds in order to gain concessions from the executive branch on matters not directly related to the nomination. Depending on the timing of the hold and the support for the nomination, a hold can kill a nomination by preventing it from ever coming to the Senate floor.

There are ways to circumvent the hold, but they take up floor time and require cloture votes, which the leadership may or may not want to do. In addition, breaking a hold through cloture could motivate a Senator to use any number of other parliamentary procedures to essentially shut down the Senate. In a body operating under the rules of unanimous consent, every Senator has some amount of power. In the Bernanke case, four holds means four Senators who can threaten to stall.

Informally, some committees have a process for holding nominees as well. It may not be called a hold, but the minority can stop a vote in a variety of ways – by denying a quorum on the day of the vote, for example.

Though some of those Senators placing the Bernanke hold are part of the Senate Banking Committee, they for the most part did not allude to bottling up the nomination in that committee before it reaches the Senate floor. Jim DeMint’s statement says “I will also object to floor consideration of Mr. Bernanke’s nomination until the Senate votes up-or-down on the Federal Reserve Sunshine Act,” and the others follow suit.

A Senate aide tells FDL News that there is no hold process in the Banking Committee. The aide also says that Sen. Chris Dodd, chair of the committee, is moving deliberately to consider the Bernanke nomination, which the President made in August and which just got its hearing this week. A committee vote for the nomination has not been scheduled yet. As chair, Dodd could schedule that vote at any time. Bernanke appears to have the votes in committee for now, but even if it didn’t succeed, Bernanke’s nomination could be brought to the floor anyway through a special process.

The point is, if the leadership wants a nominee on the floor, they have considerable latitude for getting him or her there. If Bernanke reaches the floor despite these holds, there would have to be a cloture debate, eating up 30 hours of floor time, and a vote on the motion to proceed to his nomination that would need 60 votes.

Meaning that it’s really up to Harry Reid to decide on whether Ben Bernanke gets a vote. He’s certainly honored lots of holds on the Republican side in the past. He has every opportunity to do so in the case of Ben Bernanke.

David Dayen

David Dayen