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.