The Nebraska Compromise: the Criminalization of Politics?

The so-called "Nebraska Compromise" that appears to be essential to the passage of health-care reform legislation in the U.S. Senate sounds like a dirty deal. Senator Nelson of that state, a Democrat, apparently held out for a special provision exempting Nebraska from Medicaid contributions. Understandably, some other states are indignant. A number of states attorneys general are reportedly investigating the legislation toward the end of making a constitutional challenge to it. News reports are dramatizing the story by describing the attorneys general as "prosecutors," as if they were planning criminal action against Nelson or Sen. Reid. I could understand why they'd want to, but it looks like all they can do is to go to court against the bill or induce a citizen to do so.

For the record, all the attorneys general involved in the pending investigation are Republicans, and the apparent instigator of the investigation, the attorney general of South Carolina, launched his investigation at the request of that state's two Republican Senators. At this point many people would be happy to end the discussion, dismissing all the complaints as partisan. Let's concede that charge for the sake of arguments and perhaps assume that some of these prosecutors, at least, might not be troubled had a Republican Senator, or one from one of their own states, had cut a deal like Nelson's. Neither their partisanship nor their possible hypocrisy changes the fact that they're doing the right thing right now. The Nebraska Compromise is unfair by any objective standard, whether it proves to be constitutional or not. Legislation of this sort ought to undergo constitutional scrutiny before it's passed, and it's arguably a flaw in the American political system that there seems to be no provision for such a process. Why should we suffer under laws that can only be proven unconstitutional after the fact of their passage? You might argue that the separation of powers dictates it, or that the Framers, not anticipating judicial review on the Marbury v. Madison model, expected Congressmen to be adequate judges of the constitutionality of their own legislation. The history of judicial review proves that expectation to be an unjustified assumption. Whether there can be constitutional scrutiny of legislation prior to passage that would not be as partisan as the legislation itself is a fair question, but if we can't assume anyone to be capable of acting independent of partisanship this country is finished. If Democrats see no cause for complaint in the Nebraska Compromise, they're wearing partisan blinders. If Republicans are complaining for partisan reasons only we can at least encourage them to set a precedent for everyone else.