The Penalty Box


Romney on the 4th.
Mitt Romney with his wife Ann Romney during the Wolfeboro Independence Day parade on July 4, 2012 in Wolfeboro, N.H.

Photograph by Kayana Szymczak/GettyImages.

Republicans may have renewed reason to think well of Chief Justice John Roberts. Mitt Romney argued Wednesday that Roberts’ Supreme Court ruling uncovered Barack Obama’s hidden tax in the Affordable Care Act while simultaneously proving that Romney’s similarly designed measure in his Massachusetts health care law was not a tax, but merely a penalty. 

Did Roberts do this? Not really, but Romney’s novel claim offered the latest twist in a winding series of responses to the ruling. The last week has offered a rare window into the Romney campaign in action. Buttoned-down and risk-averse, the team is slow to react and sticks to the script so strictly they’re even willing to endure ridicule. Those can be highly prized qualities in presidential campaigns. The presidency requires relentless focus, too. But politics and the presidency also require a certain dexterity, an ability to be nimble in the face of changing events.

A blistering editorial from the conservative editors at the Wall Street Journal argues that the Romney campaign has failed to get this mix right, particularly in its response to the court’s Affordable Care Act ruling. Bill Kristol, who was just a guest at Romney’s high-donor event in Utah, has also penned a bracing piece asking: “Is it too much to ask Mitt Romney to get off autopilot and actually think about the race he’s running?”

The conservative complaint, which started brewing in the wake of Wisconsin Gov. Scott Walker’s recall victory, is that Romney lacks the entrepreneurial spark to take advantage of opportunities and is merely hoping the other guy loses.

Romney’s July 4 remarks on the health care decision represented an effort to get back on track: aligning himself with his party and eliding the challenges of his record in Massachusetts.

When John Roberts’ health care ruling was read on June 28, Romney’s response was perfectly in keeping with his straightforward no-exposed-shirttail campaign. Romney spoke in front of a lectern, disagreed with the ruling and the campaign commenced arguing that Obama’s health care plan would kill jobs, moving back to the Republican nominee’s safest and most advantageous turf.

But that was the easy part. It was clear from conversations with campaign aides in the wake of the ruling that there was no plan to manage or respond to Romney’s exposure on the question of his Massachusetts health plan—particularly the provision that was nearly identical to President Obama’s. When one aide was presented with a 2010 quote from Romney praising his Massachusetts “tax,” he questioned whether Romney really said that. Offered evidence, the aide responded: “Possibly.” In the week since the decision, the lack of focus is reminiscent of Romney’s muddled response during the primaries to questions about his tax returns and record at Bain. All of these questions are issues the campaign could see coming. Romney’s exposure on health care is the largest of all—a storm that has always been on the horizon.

Romney’s immediate response may have been disciplined, but it was tone deaf to what the party was thinking and saying. Republicans had seized on John Roberts’ reasoning in his decision that the individual mandate is constitutional based on Congress’ power to tax. President Obama, delighted as he was to have his signature legislative accomplishment saved from the shredder, has steadfastly argued that this provision is not a tax, but a penalty. It may have been a tax for the purposes of the Supreme Court debate that kept the law alive, but once the law stumbled from behind the marble columns, it was a penalty. 

Republicans laughed at this reasoning and enjoyed watching White House officials and allies try to explain the distinction. The laughter was in unison until Monday when Eric Fehrnstrom, a senior Romney aide, said that the candidate disagreed with Republicans and agreed with the president: The provision should be considered a penalty. 

Why on earth would he do this? Intellectual honesty might be a reason. Fehrnstrom, the aide who introduced the Etch A Sketch analogy into the campaign, was manifestly not wiping away Romney’s past. He was accepting that it was indelible. Romney had a nearly similar provision in his Massachusetts health care law which he had repeatedly called a tax. If Romney were to call Obama’s penalty a tax, he would have to own up to his own measure being defined that way.

There was a serious problem with this position though. Every other major Republican was arguing that Roberts had merely stated the obvious, that Obama’s individual mandate was a tax. Romney was off message.

On July 4, the candidate tried to fix this problem. In an interview with CBS’s Jan Crawford, Romney contradicted Fehrnstrom and said he agreed with John Roberts. “They concluded it was a tax. That’s what it is. And the American people know that President Obama has broken the pledge he made. He said he wouldn’t raise taxes on middle-income Americans … It’s now clear that his mandate, as described by the Supreme Court, is a tax.”

Message unity restored. It was the politically wise thing for Romney to do. Better for him to take advantage of the unified GOP anti-tax message and endure charges he was contradicting his record in Massachusetts than maintain historical consistency about his Massachusetts record and be at odds with his entire party’s critique of the president’s signature legislative achievement. 

Asked by Crawford if his position on the Affordable Care Act meant he was confirming that his similar Massachusetts law was also a tax, Romney said it meant no such thing. He pointed to John Roberts as proof. “The chief justice, in his opinion, made it very clear that at the state level, states have the power to put in place mandates. They don’t need to require them to be called taxes in order for them to be constitutional. And—and as a result, Massachusetts’ mandate was a mandate, was a penalty, was described that way by the legislature and by me. And so it stays as it was.”

Romney is right. As governor he had the power that the president doesn’t have to impose an individual mandate. That’s why when the provision was challenged at the state level, the law was upheld rather easily. No judge had to go searching for a reason to support the individual mandate under taxing powers or anything else; it was upheld under the governor’s broad “police powers.”

But Romney is not correct to say that he described the provision as a penalty. Sometimes he did; sometimes he called it a fee and other times he referred to it as a tax. More to the point though, whether Romney had the authority to institute a mandate and the tax-based mechanism for enforcing it was not what Crawford was asking him. The question is how to characterize the animal that both he and Obama have relied on to bring about health care reform. That’s not a question of authority but of truth in advertising. If two men hold a shotgun, one may do so by right of a hunting license and another may do so because he is a police officer. Their authorities are different, but when we seek to describe what they hold in their hands, we can all agree it is a shotgun.

What President Obama and Mitt Romney have supported are functionally equivalent, which means that whether Romney is going to label Obama’s provision a tax or a grapefruit, the label should apply to his law as well. 

If you’ve stuck with this winding trail long enough, you can see how difficult it will be for the Obama campaign to call Romney out on his new position. If they try, they risk a public debate about the president’s unpopular law punctuated by repetition of the word “tax.” When raising taxes is the central issue of debate, GOP strategists have long felt it’s good for Republicans because they are the party that is known for fighting to keep taxes low. Still, the Obama campaign released video of Romney calling his provision a tax to undermine Romney’s latest stance. Another round of this debate was on. When Obama cites John Roberts in defining Romney’s penalty as a tax we will have come full circle.