Romney’s Spectacular Flip-Flop on Obamacare as a Tax

How you look at things.
July 5 2012 1:03 PM

Tax Dodger

Mitt Romney’s evolving positions on whether mandatory health insurance is a tax.

Mitt Romney.
Mitt Romney addresses a crowd during the Wolfeboro Independence Day parade on Wednesday in New Hampshire. Since serving as Massachusetts governor, Romney has described an insurance mandate as not a tax, a tax, and a penalty.

Photograph by Kayana Szymczak/GettyImages.

Also in Slate, read John Dickerson’s piece on how Romney is struggling to get on-message on the Obamcare decision, and Dickerson’s piece on how the tax vs. penalty battle helps neither Obama nor Romney.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

Does Mitt Romney think that penalizing people who don’t buy health insurance is a tax? The answer depends on when you ask him and whether he’s the guy who imposed the penalty.  Here’s how his position has evolved over the years.

June 21, 2005. In a Boston Herald op-ed, Romney outlines his vision:

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There is no need for new or increased taxes; funds now used to pay for the uninsured—almost $1 billion—instead will subsidize insurance premiums, where needed. Medicaid reforms generate further savings. Costs are also reduced when the newly insured get clinic-based preventative care rather than late-stage emergency care. And more people and their employers will cover or contribute to the cost of their insurance. … [M]y plan calls for a personal responsibility principle: Everyone must either become insured or maintain adequate savings to cover their medical expenses. We cannot expect some citizens to pay for others who can afford to pay some or all of their own way.

This is a clear statement that “contributing to the cost of your insurance” doesn’t constitute “new or increased taxes.” Romney sees it as a matter of personal, not social, responsibility. In fact, he frames it as the alternative to the socialist idea of expecting “some citizens to pay for others.” Later that day, Romney tells reporters that his personal-responsibility mandate would crack down on those who think that when they develop medical problems, they can “just show up and make the taxpayers pay for me.”

April 3, 2006. At a press conference, Romney praises Massachusetts lawmakers for passing the health insurance bill. A reporter ask whether an “assessment” in the bill, which would charge companies $295 per worker for failing to insure their employees, violates Romney’s pledge not to raise taxes. Romney replies:

It’s not a tax hike. It is a fee. It’s an assessment. … It applies to people who are abusing the free-care pool and who are excessively using the free-care pool, and some incentive to avoid that is appropriate. But it’s not a tax. It’s not a broad-based program. What began as a tax had me very concerned, which is the initial proposal that was discussed in the House, that both the senate president and I said we can’t go there, [which] is on a payroll tax.

Romney sees the employer assessment, like the bill’s tax penalty on individuals who fail to buy insurance, as fundamentally different from taxation because it targets freeloaders.

April 11, 2006. In a Wall Street Journal op-ed, Romney writes:

Every uninsured citizen in Massachusetts will soon have affordable health insurance and the costs of health care will be reduced. And we will need no new taxes, no employer mandate and no government takeover to make this happen. … I proposed that everyone must either purchase a product of their choice or demonstrate that they can pay for their own health care. It's a personal responsibility principle. Some of my libertarian friends balk at what looks like an individual mandate. But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay.

Romney reaffirms that the bill, despite its penalty for freeloaders, imposes no new taxes. And again, he frames this approach as the alternative to taxpayer-funded care.

April 12, 2006. Romney signs the bill into law. In the first paragraph of his press release, he proclaims: “Today, Massachusetts is leading the way with health insurance for everyone, without a government takeover and without raising taxes.” He notes that “failure by individuals to purchase health insurance will result in the loss of their state tax refund equal to 50 percent of an affordable health insurance premium.” But he describes this sanction as “penalties,” not taxation.

Aug. 24, 2007. In a speech to the Florida Medical Association, Romney says his “enforcement mechanism” for people earning more than three times the poverty level is that “when they get their tax bill … they’re charged $100 a month for not having bought insurance.” He calls the Massachusetts system universal coverage without “needing new taxes.”

Jan. 5, 2008. In a Republican presidential debate, moderator Charlie Gibson tells Romney, “You imposed tax penalties in Massachusetts.” Romney replies: “Yes. We said, ‘Look, if people can afford to buy it, either buy the insurance or pay your own way. Don't be free riders and pass on the cost to your health care to everybody else.’”

July 30, 2009. In a USA Today op-ed, Romney touts the Massachusetts law:

First, we established incentives for those who were uninsured to buy insurance. Using tax penalties, as we did, or tax credits, as others have proposed, encourages "free riders" to take responsibility for themselves rather than pass their medical costs on to others. This doesn't cost the government a single dollar.

Here, Romney adopts the hybrid term “tax penalties,” but he insists that this practice “doesn’t cost the government a single dollar.” He sees the penalty not as revenue but as a prod to take personal responsibility.

2009. In a CNN interview, Romney frames the tax penalty as an inverted tax credit:  “It's a kind of mandate. It's a requirement. In order to get a tax exemption that you'd normally get, you’ve got to have health insurance, because we want everybody in the system. No more free riders.”

March 7, 2010. On Fox News Sunday, Romney says “we didn't raise taxes” in enacting the Massachusetts law. When Chris Wallace objects that “you have an individual mandate,” Romney replies that the Massachusetts law, unlike Obamacare, entails “no new taxes,” even though residents of Massachusetts who “don't buy insurance” will “find that their taxes are higher.”

April 15, 2010. In a speech at Claremont McKenna College, Romney repeats what he told Wallace: “If you don’t buy it, you’re going to get penalized with a higher tax rate for not having gotten insurance.”

June 28, 2012. The U.S. Supreme Court rules that Obama’s individual mandate is unconstitutional as regulation of commerce but is constitutional if interpreted as a tax. Sen. Mitch McConnell of Kentucky, the Senate minority leader, quickly declares, “The Supreme Court has spoken. This law is a tax.” But Romney, speaking a few minutes later, doesn’t bite. He confines his comments about taxation in the law to provisions other than the mandate.

July 2, 2012. On MSNBC, Eric Fehrnstrom, Romney’s senior adviser and spokesman, tells Chuck Todd, “The governor disagreed with the ruling of the court. He agreed with the dissent that was written by Justice Scalia, which very clearly stated that the mandate was not a tax.” He continues:

Fehrnstrom: The governor believes that what we put in place in Massachusetts was a penalty, and he disagrees with the court’s ruling that the mandate was a tax. But again—

Todd: So he agrees with the president … and he believes that you shouldn’t call the tax penalty a tax, you should call it a penalty or a fee or a fine?

Fehrnstrom: That’s correct. But the president also needs to be held accountable for his hypocritical and contradictory statements. But he’s described it variously as a penalty and as a tax.

July 2, 2012. Lest anyone mistake Fehrnstrom's comments as a spontaneous rogue error, the Romney campaign issues a press release quoting spokeswoman Andrea Saul:

The Supreme Court left President Obama with two choices: the federal individual mandate in Obamacare is either a constitutional tax or an unconstitutional penalty. Governor Romney thinks it is an unconstitutional penalty. What is President Obama’s position: is his federal mandate unconstitutional or is it a tax?”

July 4, 2012. In an interview with Jan Crawford of CBS News—six days after the Supreme Court ruling, six days after declaring his disagreement with the ruling, and two days after his campaign issued a press release reaffirming that the mandate was a penalty, not a tax—Romney announces that the court’s ruling has changed his view on that question.

Romney: The Supreme Court has the final word. And their final word is that Obamacare is a tax. So it's a tax. …

Crawford: Have you changed your views on this? Do you now believe that it is a tax at the federal level—that the Supreme Court has said it's a tax, so it is a tax?

Romney: Well, I said that I agreed with the dissent, and the dissent made it very clear that they felt it was unconstitutional. But the dissent lost. It's in the minority. And so now the Supreme Court has spoken. … 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. Not only did he raise the $500 billion that was already in the bill, it's now clear that his mandate, as described by the Supreme Court, is a tax.

Crawford: But does that mean the mandate in the state of Massachusetts under your health care law also is a tax, and that you raised taxes as governor?

Romney: 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. 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.

Romney also tells CNN: "The Supreme Court is the final word, right? Isn’t that the highest court in the land? And they said it was a tax, didn't they? So it's a tax, of course.”

Let’s recap. First Romney said that the individual mandate, far from being a tax, was the alternative to taxation. Then he said fees targeted at freeloaders to cover the cost of health insurance weren’t taxes. Then he said tax penalties for failure to buy health insurance didn’t count as government revenue and spending. Then he said requiring people to pay higher taxes for not buying health insurance didn’t count as raising taxes. Then he refused to join other Republican leaders in saying that the Supreme Court ruling made the individual mandate a tax. Then his campaign issued a press release saying that he continued to view the mandate as a penalty, not a tax. Then, yesterday, he announced that that although he personally agreed with the court’s dissenters that the mandate was a penalty, not a tax, he now accepts the verdict of the court’s controlling opinion that the mandate is a tax. But he says this doesn’t apply to his own mandate, even though his mandate, like Obama’s, meets all the criteria he has enumerated over the years for distinguishing a penalty from a tax. And he says Obama, by imposing the mandate, broke his promise not to raise taxes on the middle class.

I didn’t think Romney could top the audacity of his self-reinvention on abortion. Looks like I might be wrong.

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