Republican attorneys general in 13 states say congressional leaders must remove Nebraska’s political deal from the federal health care reform bill or face legal action, according to a letter provided to The Associated Press Wednesday.
"We believe this provision is constitutionally flawed," South Carolina Attorney General Henry McMaster and the 12 other attorneys general wrote in the letter to be sent Wednesday night to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid.
"As chief legal officers of our states we are contemplating a legal challenge to this provision and we ask you to take action to render this challenge unnecessary by striking that provision," they wrote.
In a rare Christmas Eve vote, Senate Democrats pushed sweeping health care legislation to the brink of Senate passage, crushing a year-end Republican filibuster against President Barack Obama’s call to remake the nation’s health care system. The 60-39 vote marked the third time in as many days Democrats posted a supermajority needed to advance the legislation.
The letter was signed by top prosecutors in Alabama, Colorado, Florida, Idaho, Michigan, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia and Washington state. All are Republicans, and McMaster and the attorneys general of Florida, Michigan and Pennsylvania are running for governor in their respective states.
Last week, McMaster said he was leading several other attorneys general in an inquiry into the constitutionality of the estimated $100 million deal he has dubbed the "Cornhusker Kickback."
Republican U.S. Sens. Lindsey Graham and Jim DeMint of South Carolina raised questions about the legislation, which they said was amended to win Nebraska Sen. Ben Nelson’s support.
"Because this provision has serious implications for the country and the future of our nation’s legislative process, we urge you to take appropriate steps to protect the Constitution and the rights of the citizens of our nation," the attorneys general wrote.
A conference committee begins meeting next year to work out a compromise between House and Senate versions of the bill. Experts expect those talks will likely last into February.
McMaster says if the bill goes through to final approval with the benefit to Nebraska, taxpayers in the other 49 states will have to pay for it.
House Majority Whip Jim Clyburn, D-S.C., said the letter was a political ploy.
"This threat stinks of partisan politics," he said in a statement. "If Henry McMaster wants to write federal law he should run for Congress not governor."
Meanwhile, Nelson is taking his message on health care reform directly to his constituents. In a television ad beginning during Wednesday night’s Nebraska-Arizona Holiday Bowl football game, the Democrat says he stuck by his principles throughout the debate and doesn’t want Nebraskans to be confused on his position.
While it’s not uncommon for states to challenge federal laws in court, one legal expert said political bluster was likely behind the letter.
"I do think that it is some combination of the losers just complaining about the officiating, or complaining about how the game was played, in combination with trying to make the bill look as seedy and inappropriate as possible, for political purposes," says Andy Siegel, a former University of South Carolina School of Law professor now teaching at Seattle University School of Law.
"It is smart politics to try to tarnish it and make it look less like an achievement and more like some sort of corrupted bargain," he said.