Sen. Ben Nelson, D-Neb., proved the unnamed butt of a joke at the Supreme Court hearing today, as the courtroom chuckled at Justice Scalia's suggestion that the court overturn the "Cornhusker Kickback" because it amounted to bribery.
Scalia used the Cornhusker Kickback in a question about the principle of severability. "[I]f we struck down nothing in this legislation but the -- what you call the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay?" Scalia said, drawing laughter throughout the courtroom. Venality means "the quality or principle of being for sale," and is associated with bribery.
"When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can't be right."
Attorney Paul Clement argued that "it can be [right]" because "it's congressional intent that governs," and -- with respect to the individual mandate -- Obamacare would not have passed into law, because the individual mandate is an essential feature of the law.
"Cornhusker Kickback" is a derisive term for the deal that Senate Majority Leader Harry Reid, D-Nev., brokered with Nelson in order to get his essential 60th vote in support of Obamacare. In the deal, Nebraska received an exemption from the expense of Medicaid expansion.