ACRU

Ken Klukowski: Politics as Usual Shouldn’t Violate Constitution

This column originally appeared in The Washington Examiner on January 6, 2010.

Senate Majority Leader Harry Reid’s, D-Nev., buyoffs to Sens. Ben Nelson, D-Neb., and Mary Landrieu, D-La., for their votes for Obamacare are up against an important legal fact: They’re unconstitutional.

Reid was desperate to get 60 votes to move the Obamacare legislation to a final vote. He had to figure out a way to get two of his own Democratic senators who were holding out against it on matters of principle, like the taxpayer funding of abortion (Nelson) and the staggering cost (Nelson and Landrieu).

So Reid bought their votes with money for their states. Many adjectives were thrown at these deals, such as “sleazy,” “disgusting,” and “appalling.” But the most common epithet was “politics as usual.”

There’s a better one: “unconstitutional.”

All congressional spending must comport with the General Welfare Clause of the Constitution; that is, it must serve the “general” — meaning “national” — welfare, as opposed to the welfare of just one state at the expense of the federal taxpayer.

Most federal spending is truly national in nature. Other items, such as earmarks, still officially serve a national purpose and address a national need.

When Rep. John Murtha — one of the most brazen and unashamed pork-barrel spenders of your money — gets money for an airport terminal in his district, it’s officially serving the national interest of the air travel system, which is under federal jurisdiction. Local highway projects are part of the interstate travel and commercial system, which the Constitution authorizes Congress to develop.

The reality is that “politics as usual” directs all sorts of spending to particular states or districts. Even when the spending is completely legitimate, “politics as usual” determines where that money will be spent.

It’s always the case that the money could theoretically have gone elsewhere. Disaster relief to Florida after a hurricane would instead go to South Carolina if South Carolina is where the hurricane hits. The Navy money going to the port in Mississippi would instead go to the Norfolk, Va., if that’s where the ships or personnel are redirected.

That’s what makes all these spending items square with the General Welfare Clause. And it’s what’s lacking with these buyoffs.

Obamacare increases the size and cost of Medicaid. Reid bought Nelson’s vote by inserting a provision stating that the increased Medicaid costs for Nebraska would be covered by money from the federal government (provided from taxpayers in the other 49 states). There’s no national purpose. It’s just one state being financially carried — perpetually — by the other states through federal spending. This violates the General Welfare Clause.

Landrieu’s vote was bought for $300 million, officially intended for any state declared a national disaster area in the past seven years. (The media initially reported it was $100 million, but Landrieu huffily went on the air, indignant at the thought that she could be bought for $100 million. As a matter of principle, it takes $300 million.)

This buyoff was for one state, but phrased in general language that could in theory have included other states. It’s unclear whether the Supreme Court would take these words at face value, or instead look to the obvious purpose instead.

The court has never struck down spending for violating the General Welfare Clause. The only reason is that it’s a line that Congress has never crossed, so there’s never been occasion to smack it down.

These buyoffs have become enough of a political punch line that they may not survive conference. But if they do, these disgraceful and unconstitutional buyoffs should not survive a court challenge.