Senate Democratic leaders agreed to exempt Nebraska from $100 million in new Medicaid costs over the next decade to secure the support of Sen. Ben Nelson, whose vote Democrats needed to move the health bill to final Senate passage early Thursday.
South Carolina Republican Sens. Lindsey Graham and Jim DeMint agreed with McMaster's claim that it would be unconstitutional to give Nebraska preferential treatment under the legislation, which would extend medical coverage to 30 million uninsured Americans.
"I would argue that the exemption of Nebraska was done in a way that violates the constitution because it's a tax on 49 other states that's being levied, and we're paying Nebraska's share," Graham said. "It certainly doesn't pass the smell test."
DeMint said the proposed deal would breach a clause in Article I, Section 9 of the Constitution that reads: "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another."
The Senate on Wednesday defeated, by a 53-46 vote, a DeMint amendment to the health-care measure that would have prohibited "earmark vote trading."
Under that longtime practice, one senator backs another senator's bill in exchange for getting earmarked appropriations for a special project.
McMaster, who's running in the Republican primary for South Carolina governor, said attorneys general in two more states — Pennsylvania and Utah — had joined him in weighing a lawsuit, bringing to 10 the number of prosecutors who've joined the initiative.
McMaster acknowledged that all 10 attorneys general protesting the health-care measure are Republican, but he said he's spoken with Democrats, too, and predicted that several will join the group.
"There's no reason for this different treatment of Nebraska in what is supposed to be a nationwide law," McMaster told McClatchy. "It's a payoff to one senator to get his vote."
McMaster conceded, however, that the states would not have legal standing to file suit until after the health-care bill gained final passage in Congress and was signed into law by President Barack Obama.
House Majority Whip Jim Clyburn, D-S.C., said Tuesday that he'd try to boost the federal Medicaid share for South Carolina to 95 percent from its current level of 91 percent.
More than 700,000 poor South Carolinians are already covered by Medicaid, and the health-care bill could extend benefits to an additional 300,000.
Clyburn said that many federal programs give states disproportionate shares of aid, and that South Carolina gets more money under some of them because it has a larger proportion of poor people.
DeMint, though, said such funding disparities are different than the proposed deal for Nebraska.
"There's a distinction between a pre-set formula that is applied uniformly versus targeting a particular senator to by his vote by giving his state some kind of break," DeMint said.