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Ice Cream Sundae Rules in a Marshmallow Culture: A Few Thoughts on the Filibuster

by Michael Austin, published

What we want now is more important than what we want most.

You’ve probably heard about the famous experiment, or some variation of it, where a young child has to choose between a small reward now or a much larger reward later. When experimenters give four- and five-year old children a choice between a marshmallow right now and two marshmallows in 15 minutes, about two thirds of them choose the marshmallow now. If you increase the time frame to an hour, you can offer an ice-cream sundae to those who wait and most kids will still eat the marshmallow.

Adults are pretty much the same way. Theoretically, my desire to lose 50 pounds is much greater than my desire to eat, say, a whole bag of marshmallows on top of an ice cream sundae. But I almost always pick what I want now over what I want most. It’s kind of how people are.

This is why I find it so remarkable that the Senate filibuster lasted as long as it did. There is nothing Constitutional about the filibuster, nor is it (as Dana Milbank said today) a rule that has “guided and protected the chamber since 1789:” The filibuster was not part of the original design of the Senate, and it mainly existed as a theoretical possibility until the middle of the 20th century—and even then you had to actually talk. The virtual filibuster—where 41 senators can kill a piece of legislation simply by filing a motion, has only existed since 1979. At any time in the last 34 years, a majority of senators could have changed the rule with a simple majority vote.

But they didn’t, even when they really wanted to. Republicans almost changed it in 2005, but a bi-partisan "Gang of 14” (seven senators from each side, only) struck a deal to save it. The deal made explicit an agreement that has always been implicit: the majority promised to protect the filibuster in the rules, and the minority promised not to use it only in exceptional circumstances—and not to create a de-facto 60% threshold for all executive nominations. The official text of their memorandum of understanding reads:

"Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should be filibustered only under extraordinary circumstances."--Gang of 14 Memorandum of Understanding, 2005

It was a nice idea, but. . . . Since Obama’s election, Republicans have turned the filibuster into exactly what it was never intended to be: a near-absolute 60-vote requirement for a presidential nomination. Nearly half of all filibusters of presidential nominees in US history have come in the last five years. Democrats, though fully aware that they will be in the minority again someday, finally decided that there were enough marshmallows on their plate to forego the ice cream sundae.

So what has been lost? Well, the filibuster certainly has—unless Republicans intend to reinstate it once they have the majority, which is extremely unlikely. I can’t say that I am terribly sorry to see it go. It was always, at best, a democratically suspect parliamentary procedure.

But what I am sorry to see go is a Senate whose members know how to play the long game—who can look at the big picture and see that there are things in the world more important than today’s political battle. This is the view that, more than anything else, allowed the filibuster to survive for so many years. Senators in the majority realized that they would someday be in the minority, and they weren’t willing to trade their ability to influence policy in the future for quick wins in the present. They were willing to forego the immediate marshmallow in favor of an eventual ice cream sundae.

Though I doubt that many people will mourn the death of the filibuster, I suspect that we will all have reason to regret the demise of the big-picture perspective, on both sides of the aisle, that allowed it to exist.

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