Fox News dishonestly claimed that MIT economist Jonathan Gruber's comment that the Affordable Care Act (ACA) “was written in a tortured way” to minimize criticism proves that the law was passed deceitfully. In fact, Congress routinely crafts bills to fit legislative rules and politically acceptable limits, and health care reform was transparently debated for years with input from Republicans.
Gruber Says That Obamacare Was Designed To Ensure Passage Into Law
Gruber Explains Law “Was Written In A Tortured Way” To Get Passed. A recent video highlighted comments by MIT economist Jonathan Gruber, who provided data and developed a microsimulation model that the administration used to estimate effects of various ACA provisions, made in 2013 about the bill's passage:
The bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If [CBO] scored the mandate as taxes, the bill dies. Okay, so it's written to do that. In terms of risk-rated subsidies, if you had a law which said that healthy people are going to pay in -- you made explicit that healthy people pay in and sick people get money -- it would not have passed...Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter, or whatever, but basically that was really, really critical for the thing to pass.
Conservative Media Seize On Gruber's Comments As Proof That The ACA Was “Based On Deceit”
Bill O'Reilly: Obamacare “Was A Fraud.” On the November 12 edition of his Fox News show, Bill O'Reilly claimed that Gruber “is a patriot for finally telling the truth to the people” that the ACA “was a fraud” crafted in a “deceitful” way. [Fox News, The O'Reilly Factor, 11/12/14]
WSJ's Jason Riley: “The President's Signature Piece Of Legislation Is Based On Deceit And Lies.” On the November 12 edition of Fox News' Special Report, Wall Street Journal columnist Jason Riley claimed that Gruber's comments proved what conservatives always believed about the ACA: that “the president's signature piece of legislation is based on deceit and lies.” [Fox News, Special Report with Bret Baier, 11/12/14]
Fox News Hosts Claim Gruber's Comments Prove President Obama "Perpetrated A Fraud" To Pass The ACA. On the November 12 edition of The Five, Fox co-hosts agreed that Gruber's comments were proof that the ACA was passed through fraud. Co-host Jesse Watters said, “what this proves is that President Obama is a con artist. This is not about Gruber, the president is complicit in the fraud.” Co-host Dana Perino added that the Democrats got what they wanted and it “doesn't matter [to them] that they perpetrated a fraud” to get it passed. [Fox News, The Five, 11/12/14]
New Hampshire Union Leader: The ACA Was “A Law Built On Lies.” The New Hampshire Union Leader editorial board claimed that Gruber's comments prove that the “President Obama's signature legislative accomplishment was written with the deliberate and malicious intent of deceiving the American people” and was “built on lies.” [New Hampshire Union Leader, 11/12/14]
ACA Legislative Process Was “Completely Commonplace”
NY Times: Obamacare Process Was Part Of “Completely Commonplace” Way Congress Makes Policy. New York Times economics correspondent Neil Irwin explained that Gruber had simply highlighted something “completely commonplace about how Congress makes policy of all types.” As Irwin noted, lawmakers often craft legislation “to fit the sometimes arbitrary conventions by which the Congressional Budget Office evaluates laws and the public debates them” and that both parties engage in the practice:
In the case of the Affordable Care Act, that meant structuring the law so that the money Americans must pay the Internal Revenue Service if they fail to obtain health insurance under the law's mandate is a penalty, not a tax. (The Supreme Court held that, though not a tax, the penalties were constitutional because they were an exercise of Congress's taxing authority, which is the kind of distinction only a lawyer could come up with). That's the reason the financial assistance the health law gives people to buy insurance is structured as a tax credit, not a direct payment, which would probably be simpler and more efficient.
This kind of gamesmanship is very much a bipartisan affair. President George W. Bush's expansion of Medicare in 2003 was carefully designed so that its costs were backloaded, rising sharply just after its 10-year mark. Estimating costs in the 10-year window is an (arbitrary) convention for C.B.O. scoring of pending legislation. The design of the law made it seem less costly than it was expected to be over a longer time period. [The New York Times, The Upshot, 11/12/14]
The New Republic: “Everyone Writing Significant Legislation Does This.” New Republic senior editor Brian Beutler explained that Gruber's comments about how the health care reform law was written are “ultimately unnewsworthy” because "[e]veryone writing significant legislation does this":
[T]here 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.
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. [The New Republic, 11/12/14]
Health Care Reform Was Debated Transparently For Years
The New Republic: “The Obamacare Debate Was One Of The Most Transparent In Recent Memory.” In his article on Gruber's comments, Beutler also explained that Gruber was wrong in his claims that the cost sharing tradeoffs in the ACA weren't publicly discussed. In fact, Beutler asserted that the ACA “actually stands out for how much it was debated, and, for the most part, how transparent that debate was” (emphasis added):
[H]is 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. [The New Republic, 11/12/14]
Senate Held Years Of Bipartisan Hearings On Health Care Reform Before ACA Passed. Former Senate Finance Committee Chairman Max Baucus (D-MT) posted a timeline of his committee's work on health care reform since 2008, which included more than a dozen hearings through 2008-09 and “31 bipartisan meetings to discuss the development of a health care reform bill” between June and September of 2009. [Senate.gov, accessed 11/12/14]
Sen. Angus King (I-ME): “There Was Long Debate About It On Both Sides.” Responding to Gruber's comments, Sen. Angus King emphasized that there was much debate before the health care reform law passed:
“I certainly don't endorse those kind of comments. But I can recall that debate. I wasn't in office. [I]t was a very vigorous debate,” King said when asked about Gruber's comments. “Everybody knew that there were going to be additional taxes required to support the support for premiums under the Affordable Care Act. I don't see it as any deep, dark conspiracy. There were all kinds of -- there was long debate about it on both sides.” [The Washington Post, Post Politics, 11/11/14]