Mitt Romney has gotten himself into another jam. The verbally dexterous Republican nominee has decided to not just to call a spade a spade, but to call the federal individual mandate to buy health insurance a tax.
"While I agreed with the dissent, that’s overtaken by the fact that the majority of the Court said it’s a tax and therefore it is a tax," Romney told CBS News this week. "They have spoken. There’s no way around that." Nothing Mitt can do about it being a tax. It's John Roberts' world and we're just living in it.
Well, there's one thing Mitt can do: castigate Barack Obama for imposing such a tax on the middle class. And castigate he properly did: "The American people know that President Obama has broken the pledge he made -- said he wouldn't raise taxes on middle-income Americans."
This proclamation directly contradicted senior Romney aide Eric Fehrnstrom, who told the same network that the mandate was a penalty rather than a tax. While this was widely criticized as a gaffe even among Romney supporters, Fehrnstrom was plainly trying to do two things. First, align his characterization of the mandate with the Supreme Court justices who said it did not fall under Congress' constitutional power to tax. Second, insulate his boss from charges of raising taxes as governor of Massachusetts, when he signed an individual mandate into law.
Romney nevertheless decided to go there, as the kids say: while Obama's mandate was a tax, his state-level mandate was not. "Actually, the chief justice in his opinion made it very clear that at the state level, states have the power to put in place mandates," Romney explained. "They don’t need to require them to be called taxes in order for them to be constitutional. 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."
But congressional Democrats and the president called the federal mandate a penalty, and still do. Romney explained that states have police powers and the federal government does not, so federal mandates can only be found constitutional with trickery not required of state-level mandates. "And therefore Obamacare’s a tax," Romney concluded. "Like it or not, it's a tax."
For those acquainted with the finer points of constitutional law, there's something to this federalist distinction. And the absurdity is as much the Supreme Court's as it is Romney's. But the vast majority of Americans will have little patience for such nuances. To them, the Obama campaign's response may well make more sense.
"First, [Romney] threw his top aide Eric Fehrnstrom under the bus by changing his campaign's position and calling the free rider penalty in the President's health care law -- which requires those who can afford it to buy insurance -- a tax," team Obama said in a statement. "Second, he contradicted himself by saying his own Massachusetts mandate wasn't a tax -- but, Romney has called the individual mandate he implemented in Massachusetts a tax many times before. Glad we cleared all that up."
There is one way to clear all this up. Romney should disavow his past support for the mandate, even at the state level. This is the one option that will allow him a clean shot at Obamacare without unconvincing verbal gymnastics about the Massachusetts health care law.
Romney hasn't done this yet for two reasons. The first is that he still wants to claim credit for passing a bipartisan health care reform law in Massachusetts, one of his signature domestic policy successes. The second is that he doesn't want to add to his already lengthy list of policy flip-flops or the public perception of insincerity that goes with it.
But Romney wouldn't be the only candidate who flip-flopped on the individual mandate. Barack Obama opposed it in 2008 and actually made one of the pithiest arguments against it: "If a mandate was the solution, we could try that to solve homelessness by mandating everybody buy a house."
Both candidates would then have flip-flopped on the mandate. But Romney will have moved toward a majority of the American people -- as well as Obama's 2008 position -- while his opponent has moved away. Romney could simply say he tried mandates in Massachusetts as part of the federalist laboratory of democracy, they didn't work, and he unlike the president had learned from his mistake.
This wouldn't necessarily require Romney to repudiate his effort to reform health care entirely. He can still use it as an example of his concern about the uninsured, his desire for universal coverage, and his ability to reach across the aisle in working with an 87 percent Democratic legislature. Oh, and it was that legislature that took his original proposal that the uninsured post a bond to finance their care and turned it into an individual mandate.
It won't change the past. The Obama campaign can dredge up his numerous old defenses of the Massachusetts mandate, plus some hints that he might have been open to a federal one. But the battle lines will finally be clearly drawn: There is one candidate who judges the mandate a failure and opposes it. There is a second candidate who defends the mandate and wants to keep it.
Then there is virtually no criticism Obama can make of Romney's health care record in Massachusetts that doesn't implicate his own policy. And Romney will finally be free to point to rising costs in the Bay State as evidence Obamacare is likely to fail at the national level.
Flip-flops have hurt Romney in the past because they have made him look like a phony. But here it is Romney's current position that makes him look phony, while sounding stubborn and incoherent to boot. This is one Romney position where a long overdue change would do him good.