Earlier this year, the opponents of the Affordable Care Act spun a complete revision of the law’s legislative history from a video in which MIT professor, and Obamacare architect, Jonathan Gruber mistakenly said citizens in states that don’t set up their own exchanges won’t be eligible for health insurance subsidies.
These comments became the Rosetta Stone of the Halbig-Truther movement, whose adherents hold that Congress intentionally designed the ACA subsidy scheme to strong-arm states into participating in the takeover of the American health system. In their retellings, Gruber is either the only liberal who understands the nature of the law Congress passed, or the weak link in a vast conspiracy to dupe the pubic about this and other aspects of Obamacare.
Now conservatives have unearthed more footage of Gruber, which supports the latter portrayal.
“This bill was written in a tortured way to make sure CBO did not score the mandate as taxes,” said Gruber. “If CBO scored the mandate as taxes, the bill dies, ok? So it was written to do that. In terms of risk-rated subsidies, you get a law which said healthy people are going to pay in, it made explicit that healthy people pay in and sick people get money, it would not have passed. Ok? … [L]ack of transparency is a huge political advantage and basically, you know, call it the stupidity of the American voter or whatever, but basically, that was really, really critical to getting this thing to pass.”
The right is doing an incredible job shorehorning these comments into ongoing arguments about subsidies and other conservative points of attack against Obamacare. When a prominent ACA supporter calls American voters stupid, that part’s easy. The clip likewise surfaced against the backdrop of a Supreme Court case that threatens to gut the law, which explains why the right has sharpened its obsession with Gruber. Congressional hearings are even in the offing.
But there are two things that cut against the notion that this is a significant discovery, rather than the impolitic but ultimately unnewsworthy confessions of a single technocrat. Taken together they vindicate the political process that gave rise to the ACA, relative to the biggest legislative bargains in recent memory.
First, Gruber’s actually overstating the degree to which the ACA needed to be finessed in order to pass. It’s true that the bill’s authors took steps to maximize its public appeal and minimize its vulnerabilities. Everyone writing significant legislation does this. The question is always how far you go—what lines are you willing to cross?
Congress did, as Gruber says, construct the mandate as a penalty rather than a tax, to make the bill passable. (Since then the Supreme Court has done us all a favor by reminding us this is a distinction without a difference.) Likewise, the bill's core benefits only began kicking in this year, in large part because the authors wanted to keep the 10 year cost of the bill under $1 trillion to prevent sticker shock. Gruber didn’t mention that part.
But his suggestion that the key cost-sharing tradeoffs weren’t widely discussed just isn’t true. The idea that healthy people as well as sick people needed to participate in the system was central to the moral argument for the mandate, and figured heavily in the substantive debate over how much more insurers should be able to charge the elderly than the young. The risk-rating tussle is illustrative, because it was the rule, rather than the exception to the long legislative tug-of-war over the broader ACA. Conservatives have always said the health care law wasn’t debated, that it was rammed through, nobody read it, etc, etc. But it actually stands out for how much it was debated, and, for the most part, how transparent that debate was. Which in turn explains how difficult it was to pass.
In contrast, nearly everyone who’s attacking Gruber as if he were a White House political employee or a Democratic senator is simultaneously trying to require the Congressional Budget Office to say that tax cuts pay for themselves. The people who brought you the phony arithmetic of the Bush tax cuts and Medicare Part D and the self-financing Iraq war are upset about the ACA, which is genuinely fiscally sound.
By any reasonable standard, ACA respected budgetary constraints much better than most other laws. That the authors took pains to meet concrete budgetary goals actually underscores the point that they took CBO, and budgetary questions in general, very seriously. If they didn’t take CBO seriously, they could’ve just ignored it, or fired the messenger. That’s what the George W. Bush administration threatened to do when the chief Medicare actuary prepared to say the Part D drug benefit would cost more than the White House was letting on.
Procedural hypocrisy is a big part of politics, so it’s not like there’s anything unexpected about Republicans piling on Gruber—who's a public figure in his own right, and accountable for his statements. But the urge is infecting people who should know better. Conservative columnist Tim Carney, who’s no fan of the Medicare drug benefit or the Iraq war (but who likes those Bush tax cuts) tweets that “Obamacare stands out as a law built on a foundation of lies,” as if those other bills just didn’t pass. If you’re using Gruber’s observations and analysis as a stand in for the historical record, you’ll reach conclusions about ACA specifically, and the legislative process in general, that are completely backward.