The “Cornhusker Kickback” controversy went like this:
In 2009, Senate Democrats needed all 60 of their votes for the Affordable Care Act to overcome the threat of a filibuster by the 40 Republicans. A series of amendments, some favoring senators from Florida, Louisiana and Michigan, brought the number of votes to 59.
Nebraska Sen. Ben Nelson was the last to commit.
Dave Heineman, then-governor of Nebraska, had objected to the bill’s required expansion of Medicaid, saying the expense would wreck the state’s budget.
Nelson raised the matter with Harry Reid of Nevada, then Senate majority leader, who added wording to the bill so Nebraska’s share would be covered by the federal government forever, while most other states would end up paying for part of the expansion.
Nelson then announced his support for the bill, and on Christmas Eve 2009, he and 59 other Democratic senators approved the Senate version.
Opponents quickly adopted the “Cornhusker Kickback” label, alleging that Nelson had traded his vote for Nebraska’s preferential treatment on Medicaid payments.
Republican Chuck Hagel had left office in early 2009, before the ACA proposal was introduced, but the Nebraska senator recalled the allegation.
“You represent your own state, but you’ve got a higher responsibility for the United States,” Hagel said in an interview. “I don’t think that’s the way to do it, to placate individual senators. I would not have supported any of that. I don’t think that’s responsible legislation.”
Mike Johanns, a Republican who succeeded Hagel in the Senate, declined to comment for this story but said at the time of the passage:
“The special deal for Nebraska was wrong. … We now know this bill passed only because of back-room deals for Democrats and special carve-outs agreed to in the dead of night with the cameras off.”
Under Congress’ rules, the Senate version then went back to the House, which approved it, making it the law of the land. About a week later, another measure that required only a majority vote made changes in the bill, including removal of the Nebraska Medicaid wording.
Nelson voted against that second measure, saying it had added new taxes and provisions that would harm student loan processor Nelnet of Lincoln. The measure passed with 58 votes, with Nelson voting no, and is the law that has been in effect since then.
“The Republicans went wild, accusing Sen. Nelson of everything under the sun,” said Paul Landow, a political scientist at the University of Nebraska at Omaha. “I don’t think that Sen. Nelson did anything wrong by fighting for Nebraska.
“Now you’ve got the exact same thing going on, where senators are vying for earmarks in the bill that will benefit their states,” said Landow, who was chief of staff under former Omaha Mayor Mike Fahey, a Democrat. “Really, it’s hypocrisy at every level.”
Nelson said the Nebraska Medicaid language was a “place holder” in the legislation that he expected to be replaced with improvements such as allowing states to get in or out of expanding Medicaid. The language was removed from the final bill at his request.
He said he cast the vote “to move it forward, to see if they could put something together. That’s called legislating. Sometimes you want to move something forward even if you don’t agree with everything within the underlying bill, particularly when you know that you’ve got the role that I had.”
Arguably, Nelson’s vote and the kickback allegation caused ripples beyond Nebraska.
In 2010 some observers said the surprise election of Republican Scott Brown to succeed the late Democrat Sen. Edward Kennedy of Massachusetts was partly due to the circumstances of Nelson’s vote. Former President Bill Clinton reportedly told House Democrats in 2010, “That Nebraska thing is really hurting us.”
Nelson said that his no vote on the final law was not an attempt to blunt the unpopularity of his earlier vote.
“If you think about your political career every time you have a tough vote, you’re probably in the wrong business,” he said.
Nelson said he doesn’t regret his vote that moved the ACA ahead.
“Not a bit,” he said. “I regret the poor outcome of the rollout. I regret that the legislating was on one side of the aisle and it wasn’t bipartisan. … I’m not looking to be exonerated because I don’t look at it that way.”