There was in a strange moment in today’s severability argument at SCOTUS. Justice Antonin Scalia referred to a deal that Sen. Ben Nelson once made, to make a hypothetical point about what could take down the law.
“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?” asked Scalia, talking to Paul Clement. “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.”
The deal that Scalia was referring to – legendary in conservative anti-Obamacare circles – was not a classic “kickback.” Nelson negotiated for indefinite, unending Medicaid funding for his state. That ended up as part of the bill that initially passed the U.S. Senate on a 60-40 vote.
Here’s the rub: It’s not actually part of the law. Democrats removed the Nebraska deal in the final tortured negotiations that passed the PPACA in the House. When it got to the Senate again, Democrats only needed 51 votes to pass it; Nelson, who’d gotten the bad press from the deal AND nothing to show for it, glumly voted no.
Here’s another rub. In early coverage of Scalia’s zinger, the fate of the “kickback” is totally left out. It might be because no one in the room pointed out the mistake. Or it might be that Scalia, and lots of other people, have internalized the conservative case against the law.