For months, when the Affordable Care Act was still swimming upstream through the legislative process, President Barack Obama and Senate Democrats courted Senator Olympia Snowe, a Republican from Maine, thinking she would respond rationally to enticements and provide Democrats bipartisan cover to reform the U.S. health insurance system.
Their efforts ultimately failed. Snowe, like every other Senate Republican, voted against the health reform bill in 2009 and 2010, and then joined Republicans in their various efforts to undermine or repeal the law, until she retired in 2013.
But now it looks like all the time Democrats wasted on negotiating with Snowe, and allowing her to help shape the legislation, has paid off. Snowe has, to my knowledge, become the first contemporaneous Republican senator, current or former, to acknowledge that a Supreme Court challenge meant to cripple Obamacare is built on a tissue of lies. If the Court sides with Obamacare opponents, her comments will become incredibly relevant to the ensuing political shitstorm.
“I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies,” Snowe admitted, according to New York Times health reporter Robert Pear.
“It was never part of our conversations at any point,” said Ms. Snowe, who voted against the final version of the Senate bill. “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.” The four words, she said, were perhaps “inadvertent language,” adding, “I don’t know how else to explain it.”
There are two intersecting argumentative threads that one must untangle to really understand King v. Burwell. The first, specialized one addresses the question of what the text of the Obamacare statute means. Does it, in all its interlocking, cross-referenced parts, provide authorization for the IRS to issue subsidies to all exchanges? Or does it prohibit those subsidies in the three dozen states that have availed themselves of federal fallback exchanges, through Healthcare.gov? Only the most cribbed reading of the law—literally less than a sentence of the whole text—suggests the latter.
The second thread is, if anything, even more straightforward: What were the framers of the Affordable Care Act trying to do? Were they trying to stitch together a harmonious system across all state borders, with subsidies available everywhere? Or were they trying to coerce states into setting up their own exchanges by threatening to withhold subsidies from their citizens, and impose chaos on their insurance marketplaces? There is no evidence to suggest that the goal of the Affordable Care Act was the latter.
These threads invariably become entwined for two reasons. First, if Congress was trying to create an incentive for states to set up their own exchanges, then its failure to provide those states clear notice of the threat in the law raises serious constitutional concerns. But also, judges have consciences and intellectual standards, too, and may in some cases allow their understanding of the political history of the Affordable Care Act to influence the way they think about what the text of the law actually conveys. This explains why conservatives have been engaged in a year-long campaign to revise the history, and assert that the framers of the ACA knew all along that threatening the states would leave the law vulnerable to ruin, but did it anyway.
Pear’s article largely elides the textual question—if anything, it proceeds from the assumption that Obamacare opponents have a better legal case than they really do. But at the same time, it is devastating to the spin that Republicans are putting on the ACA’s history to bolster the plaintiffs in King.
Here, for instance, is Snowe’s erstwhile colleague, Senator Orrin Hatch, who served with Snowe on the committee that drafted Obamacare, claiming that the law’s drafters, not its enemies, are falsifying the historical record to influence judges.
“The Democrats were arguing that the only way to get the states to sign up is to put the pressure on them by making them have to do a state exchange, so it’s kind of disingenuous for them to come in now and say they didn’t mean that,” Hatch told reporter Todd Zwillich in this DecodeDC feature. “I’m not the only one that knows that. Their attitude was, you’ll never get all the states to sign up if you don’t force them. Yeah, I don’t think there’s any doubt in the Democrats’ minds they wanted to do that because they were afraid the states wouldn’t form their own exchanges. Now they’re trying to say they didn’t say that, but they did.”
With respect to King, almost every Republican member of Congress is, like Hatch, caught in the grip of the right’s collective amnesia and fantasia. The spectacle of it is breathtaking to sentient observers of the health reform process, but ultimately meaningless if the Supreme Court does the right thing in June, and rules for the government. If it doesn’t, the textual argument will effectively be over. But, for the purposes of reading such a bad decision into its proper context, addressing the ensuing chaos, and clarifying for the record for the public, the historical argument will take on even greater significance—which makes Snowe’s contribution extremely valuable.