On the individual mandate, Romney brilliantly flips from penalty to tax

By Michael J.W. Stickings

I was over there, but now I'm over here. See?

Well, you knew this was coming, surely. 

Ever since the still-stunning Supreme Court ruling last week, Romney has been shuffling to figure out where to land -- against the ruling, obviously (even if Obamacare is really just Romneycare writ large), but what about the whole "tax or penalty" argument?

Basically, it appeared that Romney and his team just wanted the issue to go away, probably because it's a no-win for them. Obama has the upper hand on health care, and of course the longer it's an issue the more time conservatives will have to learn (or remind themselves) that Romney instituted a very similar system, a prototype of Obamacare, in that liberal bastion of Massachusetts.

I suspected right away that the smarter people around Romney, strategists like Karl Rove, would try to move on quickly from an extremely bad week (for them) that saw Obama score significant wins, with vote-winning potential, on health care and immigration, returning to the economy as the one issue that could put Romney over the top, the one issue where Obama, as the sitting president, is vulnerable. But of course it wouldn't be so easy. Conservatives, including both the Republican grassroots base and the movement's opinion-forming elite (i.e., Dear Leader Rush et al.), want blood, Obama's blood, and they weren't about to let Romney move on without a fight.

But how was Romney going to fight without alienating swing-state independents who either find a lot to like in the Affordable Care Act or don't much care for the right-wing extremism that Romney must embrace from time to time in order to keep conservatives behind him?

It didn't really help that one of his top people, senior advisor Eric Fehrnstrom, said the other day that the individual mandate is a penalty, not a tax. This made a lot of sense in nuanced analytical terms -- it can be called a tax, as the Roberts-led majority found -- but it acts as a penalty insofar as the intention isn't to raise revenue -- but politically it left Romney vulnerable to criticism. Of course, it also left him in opposition to the Court's ruling, but, again, he and his team don't want to get into a debate over the specifics of the law. So he had to find another line of attack.

And -- bingo. He's flipped and flopped before, so why not again?

Yes, Romney came out yesterday and contradicted Fehrnstrom (who surely was speaking at the time for Romney), saying that the mandate is actually a tax:

Directly contradicting his senior adviser, Eric Fehrnstrom, presumptive GOP presidential nominee Mitt Romney told CBS that the Affordable Care Act's individual mandate is "a tax."

Earlier this week, Fehrnstrom said in a TV appearance that Romney has the same view as the White House on the individual mandate: that it's a penalty, rather than a tax. Romney instituted a state-level mandate to buy health insurance as governor of Massachusetts.

But Romney shifted gears in a sit-down with Jan Crawford, declaring that President Barack Obama broke his pledge not to raise taxes by imposing the individual mandate.

"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. They have spoken. There's no way around that," Romney said. "The American people know that President Obama has broken the pledge he made — said he wouldn't raise taxes on middle-income Americans."

Well, then he must disagree with the dissent, at least on the matter of the mandate, but no matter. He has no time for consistency, never his strong suit anyway, he's too busy shifting the discussion over to... taxes!

See what he did there? He's acknowledging that the Court said it's a tax, and in a way respecting the ruling, but quickly shifting gears to launch into an attack on President Obama for raising taxes. This was the political Achilles' Heel for Democrats coming out of the ruling, which left them vulnerable to the charge of raising taxes on the middle class and therefore of breaking their pledge not to do so, and Romney jumped on it, allowing him to move away from health care in and of itself but still giving the base something to latch onto.

I can't stand him or those around him, but you've got to give them a lot of credit for turning a no-win situation into a line of attack that may resonate with voters beyond hardcore conservatives.

As for Obama, he needs to stay on the offensive. He needs to do what he didn't do nearly enough of when the was in the sausage-making stage, or even after it was passed. He needs to sell it, to explain what it does, all that will benefit the American people -- tens of millions insured, access to coverage for those with pre-existing conditions, lower costs over time, fiscal responsibility, etc.

Can he do it? Of course he can. The Affordable Care Act is historic legislation that does enormous, even incalculable good. And President Obama is just the person to make the case.

Personally, I still believe.