On November 15, The New York Times published an op-ed by Martin B. Gold and Dimple Gupta, who were identified by the Times only as “lawyers and former Congressional aides.” The op-ed criticized a provision of the Honest Leadership and Open Government Act, which the authors say changes Senate rules to “make[] it easier for last-minute proposals to be inserted into legislation behind closed doors.” According to Gold and Gupta, “Buried in a law intended to promote transparent government is a tool for those who wish to push bills through Congress, and a new problem for those who rely on the Senate to slow or halt problematic legislation. Whether one appreciates or regrets this may depend on whether one's party is in the majority or minority.” However, the Times failed to disclose that the authors previously served as aides to Senate Republicans -- Gold as floor adviser and counsel to former Majority Leader Bill Frist (TN) and Gupta as chief counsel for constitutional matters to Sen. Arlen Specter (PA) during Specter's tenure as chairman of the Judiciary Committee. Further, Gold and Gupta are the authors of a 2005 article that, according to a May 14, 2005, Congressional Quarterly Weekly article, “gave Frist an intellectual framework for what they came to call the 'constitutional option,' although critics still prefer to call it 'nuclear' ” -- to eliminate the filibuster for judicial nominations.

In an August 2 floor speech in support of the Honest Leadership and Open Government Act -- which passed the Senate on an 83-14 vote with no Democrats or independents voting against the bill -- Sen. Dianne Feinstein (D-CA), chair of the Senate Rules and Administration Committee, stated that the provision made “a very important change in the rules,” because under the previous rule, “You go through the process, and then after the process is concluded, in the dead of night, something is stuck into a conference bill. This practice will end.” Feinstein continued: “Currently, when an out-of-scope provision is added to a conference report, we can object, but the objection brings down the whole bill. The reform in this bill will allow a Member to object to just the added provision.” No separate vote was taken on the provision discussed by Gold and Gupta.

According to a staff biography at the law firm Covington & Burling LLP, where Gold is a partner, he “assist[ed] in all aspects of floor procedure and strategy during Senator Frist's first session as Majority Leader.” Gold also previously worked for former Senate Majority Leader Howard Baker (R-TN) and former Sen. Mark O. Hatfield (R-OR).

In her position with Specter, Gupta “played a leading role in preparation for the Supreme Court nominations of Chief Justice Roberts and Justice Samuel Alito, and organized hearings, provided legal analysis, and drafted legislation concerning issues such as the NSA's Terrorist Surveillance Program, reauthorization of the Voting Rights Act of 1964, and reporters' privilege legislation,” according to her staff biography at Covington, where she is an associate. Prior to her tenure with Specter, Gupta was counsel to the assistant attorney general, civil division in the Bush administration Justice Department. Gupta's biography also states that she was president of the Harvard University chapter of the Federalist Society, a conservative legal organization, during law school. In a March 8, 2005, Philadelphia Inquirer article, Specter reportedly “denied that he hired her as a staff attorney for the Judiciary Committee as a concession to conservatives. He said her politics were irrelevant.”

Section 511 of the Honest Leadership and Open Government Act amends Rule XXVIII of the Standing Rules of the Senate as follows:

SEC. 511. AMENDMENTS TO RULE XXVIII.

(a) OUT OF SCOPE MATERIAL AMENDMENT. -- Rule XXVIII of the Standing Rules of the Senate is amended by --

(1) redesignating paragraphs 4 through 6 as paragraphs 6 through 8, respectively; and

(2) striking paragraphs 2 and 3 and inserting the following:

''2. (a) Conferees shall not insert in their report matter not committed to them by either House, nor shall they strike from the bill matter agreed to by both Houses.

''(b) If matter which was agreed to by both Houses is stricken from the bill a point of order may be made against the report, and if the point of order is sustained, the report is rejected or shall be recommitted to the committee of conference if the House of Representatives has not already acted thereon.

''(c) If new matter is inserted in the report, a point of order may be made against the conference report and it shall be disposed of as provided under paragraph 4.

''3. (a) In any case in which a disagreement to an amendment in the nature of a substitute has been referred to conferees --

''(1) it shall be in order for the conferees to report a substitute on the same subject matter;

''(2) the conferees may not include in the report matter not committed to them by either House; and

''(3) the conferees may include in their report in any such case matter which is a germane modification of subjects in disagreement.

''(b) In any case in which the conferees violate subparagraph (a), a point of order may be made against the conference report and it shall be disposed of as provided under paragraph 4.

''4. (a) A Senator may raise a point of order that one or more provisions of a conference report violates paragraph 2 or paragraph 3, as the case may be. The Presiding Officer may sustain the point of order as to some or all of the provisions against which the Senator raised the point of order.

''(b) If the Presiding Officer sustains the point of order as to any of the provisions against which the Senator raised the point of order, then those provisions against which the Presiding S. 1 -- 24 Officer sustains the point of order shall be stricken. After all other points of order under this paragraph have been disposed of --

''(1) the Senate shall proceed to consider the question of whether the Senate should recede from its amendment to the House bill, or its disagreement to the amendment of the House, and concur with a further amendment, which further amendment shall consist of only that portion of the conference report that has not been stricken;

''(2) the question in clause (1) shall be decided under the same debate limitation as the conference report; and

''(3) no further amendment shall be in order.

''5. (a) Any Senator may move to waive any or all points of order under paragraph 2 or 3 with respect to the pending conference report by an affirmative vote of three-fifths of the Members, duly chosen and sworn. All motions to waive under this paragraph shall be debatable collectively for not to exceed 1 hour equally divided between the Majority Leader and the Minority Leader or their designees. A motion to waive all points of order under this paragraph shall not be amendable.

''(b) All appeals from rulings of the Chair under paragraph 4 shall be debatable collectively for not to exceed 1 hour, equally divided between the Majority and the Minority Leader or their designees. An affirmative vote of three-fifths of the Members of the Senate, duly chosen and sworn, shall be required in the Senate to sustain an appeal of the ruling of the Chair under paragraph 4.''

Previously, paragraphs 2 and 3 of the rule read:

2. Conferees shall not insert in their report matter not committed to them by either House, nor shall they strike from the bill matter agreed to by both Houses. If new matter is inserted in the report, or if matter which was agreed to by both Houses is stricken from the bill, a point of order may be made against the report, and if the point of order is sustained, the report is rejected or shall be recommitted to the committee of conference if the House of Representatives has not already acted thereon.

3. (a) In any case in which a disagreement to an amendment in the nature of a substitute has been referred to conferees, it shall be in order for the conferees to report a substitute on the same subject matter; but they may not include in the report matter not committed to them by either House. They may, however, include in their report in any such case matter which is a germane modification of subjects in disagreement.

(b) In any case in which the conferees violate subparagraph (a), the conference report shall be subject to a point of order.

From Gold and Gupta's New York Times op-ed:

DESPITE news coverage of the lobbying reform law passed in September, one change to Senate rules has gone unnoticed, one that makes it easier for last-minute proposals to be inserted into legislation behind closed doors.

Because the House and Senate must pass identical language before a bill can become law, members of the two chambers often meet in “conference” to negotiate a compromise, which Congress then votes on. These compromise bills typically are approved, especially when they concern must-pass legislation.

The Senate has long recognized the temptation by conferees to insert unrelated items into the compromise bill. So the rules included a strong deterrent to this practice: A single senator could object that the conferees had included an irrelevant provision, and if the presiding officer sustained the objection, it would kill the entire bill. Conference committees added irrelevant provisions only when it was clear that no one would object.

With this new law, the Senate can vote to waive objections; if 60 senators agree, irrelevant provisions stay in. A vote can waive objections to all extraneous items at once, so members can add multiple and far-reaching extraneous provisions.

For a conferencing senator, there is now little downside to including an unrelated provision, even if it has been subject to no hearings, debate or study. If another senator objects and the provision falls short of 60 votes, the material comes out. The compromise is not put at risk, as it was under the old rule.

No longer can a dissident senator prevent members from inserting irrelevant material in conference. Now, the threat carries force only if that senator can garner 41 votes; if the size of the Senate minority, now at 49, edges downward, its ability to police conference reports will edge downward as well. Last-minute, partisan additions may become ever more common in must-pass legislation.

Buried in a law intended to promote transparent government is a tool for those who wish to push bills through Congress, and a new problem for those who rely on the Senate to slow or halt problematic legislation. Whether one appreciates or regrets this may depend on whether one's party is in the majority or minority.

From Feinstein's speech:

S. 1 also contains a number of major reforms to Senate rules, and I will highlight a few of the most important procedural reforms.

Section 511 amends rule XXVIII to subject “dead of night” additions to conference reports, when the new matter was not approved by either House, to a 60-vote point of order. This is a very important change in the rules, and it has been the bane of many our existence for a long period of time. You go through the process, and then after the process is concluded, in the dead of night, something is stuck into a conference bill. This practice will end.

Currently, when an out-of-scope provision is added to a conference report, we can object, but the objection brings down the whole bill. The reform in this bill will allow a Member to object to just the added provision. I first proposed this provision in the last Congress and worked closely with Senator [Trent] Lott [R-MS] on its development. I am very happy that it is included in the final bill.

From the March 8, 2005, Philadelphia Inquirer article:

Specter said that a careful study of Senate history caused him “to come out more forcefully on my concerns about the nuclear option disrupting the Senate. That has been one tonal shift in what I've done. But in my discussions with my guys [fellow Republicans on the panel] I did not promise to back the nuclear option.”

Last week, Kay Daly, president of the Coalition for a Fair Judiciary, and a Specter critic, said the “olive branch that he keeps wanting to offer to the leftists on the committee is going to end up in a wood chipper.”

Last week, Specter hired Justice Department attorney Dimple Gupta, a lawyer with conservative credentials who cowrote a law journal article on how to defeat the filibuster.

The senator denied that he hired her as a staff attorney for the Judiciary Committee as a concession to conservatives. He said her politics were irrelevant.

“Besides,” he said, “she works for me. I don't work for her.”

From the May 14, 2005, Congressional Quarterly Weekly article:

Frist said he spent a year to a year and a half in sessions with Gold learning about not just the filibuster but Senate history, procedures and rules. He said he pored through the congressional record. “The discipline of history and the importance of tradition and precedent led me to the further education of myself,” he said, “and to the conclusion that I've reached about the importance of up-or-down votes.”

Gold, who had left the Washington law firm of Covington & Burling to help Frist settle into his job as majority leader, went back to the firm in early 2004. But he remained part of Frist's circle of advisers, and he continued his interest in the filibuster question. He began work on a law journal article and continued to consult with Senate leadership aides, particularly Eric M. Ueland, now Frist's chief of staff and also a Senate expert on parliamentary procedure.

The fruit of Gold's work, which he researched and wrote with a law firm colleague, Dimple Gupta, gave Frist an intellectual framework for what they came to call the “constitutional option,” although critics still prefer to call it “nuclear.” Gold's conclusion was that the Senate's majority has the constitutional authority to define the body's procedures, including setting governing precedents, by a simple majority vote -- and in fact has done so periodically throughout the years. It was this power that Republicans would exert to permit votes on all judicial nominees that come to the floor.