Ezra Klein did an interview with Jeff Merkley about the filibuster, where he asked him how creating a process where the minority has to actually filibuster will actually solve the issue of needless obstruction and delay.
EK: …even if Reid had the powers and the rules that you would like to see him have, he would not force the minority to hold the floor, because to him, if he can’t get the bill through and he gives them three days to argue about it so the American people can see that they’re obstructionists, he can’t do “don’t ask, don’t tell,” he can’t do the DREAM Act, he can’t go to the tax cuts. Giving the minority the power to waste more valuable time does not fix the problem right now, which is their capacity to waste valuable time [...] the normal problem for the Democrats is not just Jim DeMint, but 41, and now 47, Republicans, basically acting as a unit in all these things. And in that world, how hard is tag-teaming a long speech, particularly given that it’s an opportunity to get your message out, and you can have all your staff feeding you content?
JM: The point you’re making is that this isn’t just about one disaffected senator, this is about a party that wants to slow things down. But right now, it’s easy to do, you just file an objection and walk away. You don’t have to be here all night. It gets much less appealing when you have to be there all night. Now your point is, “Could the minority party organize a day and night tagteam in order to, say, block the food safety bill?”
Well, maybe, but do they want to? Do they consider it important enough that their members want to be here all night? Members of the Senate are not all that excited about spending the night here. To your point, I threw in an additional suggestion, which is as time progresses, the number of senators required on the floor at all times is increased — I suggested 5 and then 10 and then 20 — for exactly the reason you’re pointing out.
I think there’s another answer to this. There are two problems happening at the same time. One is that a minority of 41 Senators can block the will of the Senate. The majority isn’t willing to change that but is willing to make that a legitimate process, where those 41 Senators have to hold the floor in some way, or engage in some other tactic in order to block the bill. The other problem is not the filibuster of 41, but the filibuster of 1. Because Tom Coburn can deny unanimous consent, a bill or nomination could have the support of 99 Senators and still take a week to finish off. That’s the real problem with the Senate when you’re talking about time. I don’t think anyone would see an actual filibuster as a waste of time, it’s an expression of ideas. Outside political pressures will bring themselves to bear on that, and it could turn out one way or another. It’s the silent filibuster, the filibuster where the Majority Leader knows that it’ll take a week to get the head of the Equal Employment Opportunity Commission through the Senate, that is just a pure waste of time. And the rules of ending post-cloture time for nominations (because what’s to discuss or amend after that?), or ending the filibuster of the motion to proceed, would make those silent filibusters less painful.
The perfect example is the raw deal on judicial confirmations in the lame duck session. Democrats were allowed votes on 19 of the President’s 38 judicial nominees, and they went through in short order without filibusters. Some of those nominees had been held up for months; one was approved out of the Judiciary Committee in January. Only 4 of the 38 nominees were deemed “controversial” by the Republicans, and those nominees were not allowed a vote. So why were the other 15 held back, and why does the President have the worst percentage on judicial confirmations in history? Because of the silent filibuster.
The Senate rules empowers the minority to force up to 30 hours of wasted floor time for each nominee the majority wishes to confirm. When you multiply this across the hundreds of judges, ambassadors, assistant secretaries and other jobs a new president must fill, it adds up to more time than the Senate is in session for two entire presidential terms:
Because the minority has the power to slow the Senate to a virtual halt, they can use this power to extort even the most unreasonable demands from the minority. In this case, the Senate GOP can simply threaten to grind all confirmations to a near halt unless the majority complies with their arbitrary demand to block Liu and others.
If post-cloture time on nominations were removed, suddenly confirmations would be a far less painful process. If you believe, as I do, that the Senate really has no other realizable objective in the next Congress than confirming judges and resolving the judicial crisis (and by the way, the President needs to step up and nominate more of them), then this would be a crucial reform. The goal is to make the things that have massive support more painless, so the business of legislating more controversial items can take up the bulk of the time.
I’m sure dedicated obstructionists will find other ways to throw sand in the gears of the system, but the beauty of the Constitutional option of Tom Udall’s is that it keeps the precedent of majority-vote rules changes in everybody’s head. It’s the big stick that lets Senators know they’d better speak softly.