Did you know that the future of Obamacare relies on the credibilty of former Senator Ben "Cornhusker Kickback" Nelson? Yes, the Huffington Post and other liberal media outlets seem to think that what Nelson tells us was going on in his mind at the time that Obamacare passed is crucial to the outcome of the King vs Burwell case at the Supreme Court.
Such is the desperate premise of Jonathan Cohn, Senior National Correspondent of the Huffington Post and other liberals looking for that lifeline out of the dilemma that the Obmacare law specifically says that only state based exchanges are eligible for subsidies. And it now appears that lifeline comes in the form of what Ben Nelson was thinking. Oh, and if we don't know what he was thinking at the time of the passage of Obamacare, we can take his word about it. Here is Cohn taking his victory lap over what Nelson claims his intentions were five years ago:
The former senator who nearly blocked Obamacare in Congress may have just helped save it from the Supreme Court.
By now, you may have heard about King v. Burwell, the lawsuit brought by some of the Affordable Care Act’s conservative and libertarian critics. If successful, the lawsuit would cut off tax credits to millions of people currently buying insurance through the law’s new insurance “exchanges.” Without those tax credits, most of those people would have to give up insurance altogether, while prices for others could rise.
The legal dispute, which the Supreme Court will hear in March, isn’t about lofty principles of constitutional law. Instead, it’s about what the text of the statute really says and what members of Congress really meant when they voted for it.
Under the Affordable Care Act, state officials face a choice. They can opt to build and operate their own insurance exchanges, or they can leave that work to the federal government. King's plaintiffs say this choice carries severe consequences because of some ambiguous wording in one section of the legislation. The part of the law authorizing tax credits refers specifically to exchanges "established by the state." It says nothing about exchanges established by the federal government.
...This is where Ben Nelson, former senator from Nebraska, enters the story.
Here he comes to save the day! The way Cohn describes Nelson makes it seem like he is wearing a Mighty Mouse cape:
Back in late 2009 and early 2010, a key dispute among the lawmakers debating health care reform was over whether to create one giant national exchange or 50 separate state exchanges. House Democrats, liberals in the Senate, and many administration officials felt a national exchange would be better. Nelson, a relatively conservative Democrat and ex-governor, was among those who strongly preferred state-based exchanges -- and threatened to withhold his support, depriving Democrats of a filibuster-proof majority, if he did not get his way.
The Senate bill, which eventually became the law, was consistent with Nelson’s preferences. And, according to King’s plaintiffs, Nelson felt so strongly about the superiority of state-run exchanges that he wanted to cripple the federally run exchanges -- denying them access to tax credits and, in the process, rendering many of the law's other consumer-friendly reforms unworkable.
"For Nelson and some other Senators, it was important to keep the federal government out of the process, and thus insufficient to merely allow states the option to establish Exchanges, as the House bill did,” a brief by the lawsuit’s plaintiffs argues. “Rather, states had to take the lead role, which, given the constitutional bar on compulsion, required serious incentives to induce such state participation.”
Democratic Senate leaders and their advisers have repeatedly dismissed this theory as nonsense. And now it appears Nelson feels the same way. An amicus brief filed Wednesday by the Constitutional Accountability Center on behalf of the law's congressional architects references a letter, sent recently by Nelson to Sen. Bob Casey (D-Pa.) and available publicly, in which Nelson states unequivocally that he never intended to penalize states that opted not to create their own exchanges. “I always believed that tax credits should be available in all 50 states regardless of who built the exchange,” Nelson, who is now CEO of the National Association of Insurance Commissioners, writes. “The final law also reflects that belief as well.”
Could Nelson be forgetting what he thought and demanded at the time of Obamacare’s enactment? Could he be lying? Sure. But the publication of his letter follows a series of revelations casting yet more doubt on the arguments of King’s plaintiffs.
Could Ben Nelson be (GASP!) fibbing about what he was thinking? Could the creator of the Cornhusker Kickback who is now the CEO of the National Association of Insurance Commissioners have an ulterior motive? Cohn wants us to trust in Nelson's integrity to save his beloved Obamacare.
Ironically it is Jonathan Cohn himself who inadvertently backed up the argument of the plaintiffs of King vs Burwell while being interviewed on radio. Here is Cohn's highly embarrassing confession in the New Republic before the mass exodus of almost all its staff:
Remember all that controversy last week—because somebody discovered some old statements, from MIT economist Jonathan Gruber, echoing the theory behind those new Obamacare lawsuits? Now somebody has found yet another old quote, making the same point, only this one didn’t come from Jon Gruber. It came from ... me.
It happened on January 12, 2010, during a broadcast of “Fresh Air" with Terry Gross on National Public Radio. At the time, House and Senate leaders were meeting with the White House, in order to forge a compromise bill based on the measures each chamber had already passed. This was before Scott Brown won the special election for Ted Kennedy's old Senate seat, depriving Democrats of their filibuster-proof majority and forcing them to pass the Senate bill with only modest, subsequent amendments. One major sticking point was the design of the new insurance exchanges. The House bill envisioned a national exchange. The Senate bill favored state exchanges.
Gross asked me about that issue—and what might happen if, under the Senate version, state officials decided not to do their own exchanges. "I'll be honest," I responded. "This is not something I've looked into that closely because I don't think it's going to end up in the bill." I should have stopped right there. Instead, I proceeded to speculate about a mechanism similar to the one that Michael Cannon, Jonathan Adler, and the law’s critics have suggested the Senate was trying to create. My description is a bit muddled and it went on for some time, but I made the point that "I can't possibly imagine a state opting out of an insurance exchange, given it's a good deal for the state."
So keep hanging on to the mental machinations of Senator Cornhusker Kickback, Jonathan. It might not be much but it could be enough to allow you to get some sleep over the next few months.
