January 27, 2016

Senator Ed Markey provided a civics and public policy lesson on the significance of the Senate this past week by putting a “hold” on the nomination of Dr. Robert Califf to head the Food and Drug Administration.

The President nominated Califf, a Duke researcher and cardiologist, in September.  He received the support of the Senator Lamar Alexander; the Republican chair of the Senate Health, Education, Labor and Pensions Committee and his nomination was moved to the floor for consideration. 

Markey’s hold prevents the Senate from taking up the nomination.

Article I, Section V of the Constitution allows both Houses of Congress to “determine the Rules of its Proceedings” and Senate rules, unlike those of the House of Representatives, allow power to flow to individual Senators. 

According to the standing rules of the Senate, under morning business, “no motion to proceed to the consideration of any bill, resolution, report of a committee, or other subject upon the Calendar shall be entertained by the Presiding Officer, unless by unanimous consent.”

Unanimous consent is an empowering rule.  Individual Senators, representing the interests of their state, can impede the workflow of the Senate.

A hold, for example, stops a presidential nomination from advancing.  It’s not an unlimited power: Senate rules allow for a cloture vote to bring debate on a nomination or bill to an end.   Sixty votes are needed to invoke cloture.

Until 2011, Senators could place a hold anonymously.  A hold, like the filibuster, is an increasingly used, and often abused, tactic in the Senate to disrupt the affairs of government.  It is a power that allows any one Senator to weigh in on any matter before the body.  

Markey’s hold on Califf’s nomination is not the only hold pending in the Senate.

Senator Marco Rubio has a hold on the nomination of Roberta Jacobson to be Ambassador to Mexico because of her role in opening diplomatic relations with Cuba.   This fall, Senator Tom Cotton held up the nominations of three prospective ambassadors.   Senator Ted Cruz vowed last summer to hold all nominations in the State Department over the Iran nuclear deal. 

Holds were also placed on the nominations for Secretary of the Army and the Treasury Department's undersecretary for terrorism and financial crimes.

In response to Republican holds on these nominations, Democratic Senator Sherrod Brown demanded the following: “Republicans need to stop holding our national security apparatus hostage to political demands, which is exactly what this has been" 

A hold is perhaps only a hostage situation if you don’t have a policy ax to grind. 

 And Senator Markey does.  At last week’s New England Council luncheon, the Senator spoke passionately about the role of the FDA in regulating, or failing to regulate, the amount and type of prescription pills routinely distributed by doctors and pharmacies.

The Senator was speaking of the opioid crisis that is impacting his state and the country.  He is rightfully angry that the process of prescribing powerful painkillers has helped to further the crisis.   As the Senator was speaking I was thinking of the full bottle of Oxycodone sitting in my medicine cabinet.  A few weeks worth of the pills were prescribed to my 13 year old when she had her wisdom teeth removed recently.   Her pain lasted a few days but we have a prescription for much, much longer.

The amount of opioid pain medication flooding the Commonwealth is a serious health and public policy issue.   Markey’s hold on Califf is designed to force a conversation within the FDA and between that executive agency and the Senate on the kinds of regulatory policies that can be changed or implemented to help tackle the opioid epidemic.

It is worth noting that there is a bipartisan hold on Califf.  Independent Vermont Senator Bernie Sanders has a hold over his ties to the pharmaceutical industry and Alaska Republican has a hold over the FDA’s regulation of genetically modified salmon.

Holds can certainly be abused but they are an important tool to force policy changes.

Senator Cotton’s response to criticism over his use of the hold noted “This is about a constitutional clash between the executive and the Legislature. In divided government, one critical check that the Senate has is the power of confirmation.”

He’s right and so is Markey’s use of this important tool to demand action by a regulatory agency. 

Senate, FDA, Robert Califf, Ed Markey

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