Supreme Court Justice Antonin Scalia revealed a "partisan" view of Obamacare created by deceptive Republicans that undermines his ability to rule on the law, Sen. Ben Nelson, D-Neb., argued in a phone interview yesterday.
"The real point here is that Justice Scalia can laugh all he wants, but the laugh is on him if he thinks that's in the legislation," Nelson told The Washington Examiner. He was referring to Scalia's use of the term "cornhusker kickback" to refer to a provision in Obamacare during oral arguments on the law's constitutionality.
Nelson, who is retiring from the Senate at the end of this year, saw his popularity in Nebraska plummet after he added the provision and dropped his reservations about the health care law. He said yesterday that internal polling showed him in a strong position to win reelection, but did not want to commit to another six-year term.
He told the Examiner that he had written a letter to Scalia to say, "you should at least know what's in the bill, and it seems to me that your knowledge of the bill has come more from partisan talking points and broadcast and cable news than it has from a review of the bill."
During oral arguments, Scalia had made a joke about the provision: "[I]f we struck down nothing in this legislation but the -- what you call the 'Cornhusker kickback,' okay, we find that to violate the constitutional proscription of venality, okay?" Scalia was challenging attorney Paul Clement's argument that the entire health care law must be struck down if the individual mandate is overturned. (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," Scalia continued. "And you are telling us that the whole statute would fall because the 'cornhusker kickback' is bad. That can't be right." The joke prompted laughter throughout the courtroom.
"Justice Scalia, in trying to be humorous, displayed that he had no knowledge of the bill," Nelson said yesterday, before suggesting that Scalia is not qualified to rule on Obamacare. "What frustrates me is that this is a justice who is going to decide a case on a point that's not even in the law and didn't know it," he said. "Ignorance."
"Cornhusker kickback" is a derisive term for the Medicaid exemption that originally applied only to Nebraska. At the time Obama's health care bill passed the Senate, it was widely reported that Senate Majority Leader Harry Reid, D-Nev., had agreed to the Nebraska provision as part of a deal to get Nelson's vote.
"He got this for himself," Reid told Fox News' Greta Van Susteren in 2010. "He wanted it." Reid also indicated that he got the idea to pay for the Medicaid expansion from Nelson's push for the Nebraska's exemption.
Nelson strongly denied that the provision was part of any deal. "Unfortunately, that's not really the way it happened," Nelson said in response to Reid's comments. Far from selling his vote in exchange for the Medicaid exemption, Nelson claims that he pushed for Democratic leadership to change the bill for all 50 states, so that they would not face "an unfunded federal mandate" due to the Medicaid expansion.
"I should have said, 'I won't vote as a 60th vote until you have it in for all the states,' which in retrospect was probably what I should have done as opposed to relying on them ultimately getting it resolved for all the states -- which is what they did ultimately," he said. Nelson also noted that a White House spokeswoman has corroborated his version of events.
Nelson argued that the legislation appeared to contain a special provision for Nebraska because they didn't have a Congressional Budget Office (CBO) report on the cost if it applied everywhere. "If you take a look at what I requested in the correspondence and what I was asking for in the room, the only reason that they couldn't do it except the way they did it is they didn't have a CBO score for all the states."
He added that the Medicaid exemption did not swing his vote. "My requirements came down to two things: public option out and anti-abortion language in," he said.
Nelson said that Reid might have misunderstood him due to the speed with which they were writing Obamacare. "Everything went so fast right at the end there that one could have walked away with many different understandings, none of which would have been totally accurate, because right at the end it was like a refugee airlift getting it all put together," he said.
Nelson added that he has never since discussed the "cornhusker kickback" issue with Reid, nor asked him to retract his version of events, because "it was time to move on."
Although he is retiring, Nelson insists that he would win reelection if he tried. He faulted deceptive Republicans for popularizing the idea that he sold his vote.
"The Republicans were looking for anything," Nelson suggested. "Most of them knew what I had done, but they wanted to damage the legislation, clearly, and so they went and used 'cornhusker kickback' as a way of trying to damage the bill . . . And obviously, by saying that, they damaged the legislation as far as Justice Scalia is concerned."