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Nelson, Scalia and the 'Cornhusker Kickback'

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Politics,Beltway Confidential,Philip Klein

Last week, Sen. Ben Nelson, D-Neb.,  spoke with my colleague Joel Gehrke to give his side of the story on the frenzied push to pass President Obama's health care law. In the process, he took issue with Justice Antonin Scalia, who referenced the infamous "Cornhusker Kickback" in March's Obamacare oral arguments.

"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.

At the time I covered the oral arguments, so much was going on that I didn't get a chance to write about Scalia's reference to the "Cornhusker Kickback." But since there's been an ongoing misperception about his comments, I thought it was worth addressing.

To those who weren't following the Obamacare legislative process closely, as Senate Democrats scrambled to pass the law in late December 2009, Nelson was one of the last remaining holdouts. One of the concerns he had about voting for the bill was that it expanded Medicaid (a joint federal/state program), putting a major financial burden on already cash-strapped states. As part of a late deal to win over Nelson's vote, Senate Majority Leader Harry Reid, D-Nev., inserted a provision in the bill in which the federal government would pick up the tab for the Medicaid expansion -- but only for Nelson's Nebraska. The so-called "Cornhusker Kickback" came to epitomize the corrupt process through which Democrats rammed through Obamacare and the backlash helped elect Republican Sen. Scott Brown in the following month's Massachusetts special election to replace the deceased liberal icon Ted Kennedy.

Fast forward to this March, when Paul Clement, arguing on behalf of challengers to the health care law, asserted that the Supreme Court justices should consider "Congressional intent" and strike down all of Obamacare if its individual mandate were deemed unconstitutional. Scalia, pushing back against Clement's argument, was skeptical of the idea that the Court should base its decisions in such cases on the question of whether Congress would have passed the legislation in the absence of the provision at issue. Scalia explained:

The consequence of your proposition, would Congress have enacted it without this provision, okay, that's the consequence. That would mean that if we struck down nothing in this legislation but the -- what's it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay?

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 Cornhusker kickback is bad. That can't be right.

Though Scalia's purpose was quite clear to those following the entire flow of the arguments, a lot of coverage portrayed Scalia as somehow ignorant of what was in the final legislation. The reality is that the "Cornhusker Kickback" effectively remained, but the federal payments were extended to all states to address charges of special treatment. Also, it's worth noting that whether or not it's in the final legislation, the truth remains that it was essential to passing the legislation. There are a number of stages a bill must go through before it can become a law, and getting 60 votes in the Senate in December 2009 was one of those stages. Though Nelson may deny it now, the "Cornhusker Kickback" was clearly part of the package that helped secure his vote. 

But this isn't all that relevant to the hypothetical legal point that Scalia was making, which was essentially that in any large piece of legislation, so many tiny provisions are needed to secure the necessary votes. The Supreme Court, he was suggesting, cannot create a standard wherein any incidental provision that's declared unconstitutional will bring down a whole just because it was part of the standard horse trading that always takes place in Congress. By saying, "that can't be right," Scalia was prodding Clement to sharpen his argument. Clement later did this by arguing that the mandate wasn't just some incidental provision, but that it was so interconnected with the rest of the legislation that removing it along with everything related to it would rip out the heart of the bill and leave a "hollow shell" that would have never passed, and never would have met the goals of Congress. Later in the arguments, Scalia seemed sympathetic to this refined standard, saying, "My approach would say if you take the heart out of the statute, the statute's gone."

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