No matter what decision comes from the Supreme Court, which began hearing arguments Monday on the constitutionality of the Affordable Care Act health reform’s individual mandate, the individual mandate will continue to be a major flashpoint in the upcoming election and its aftermath. Indeed, as Mitt Romney’s candidacy blossomed in recent months, the media have finally come around to writing the “mandate” stories they ignored during the Great Health Reform Debate—sort of. My colleague Erika Fry, in discussing the political storm seeded by BuzzFeed’s “revelation” that Romney once penned an op-ed in USA Today supporting the mandate, raised two questions: Has the press ceded the reporting on Romney’s policy-shift problem to opposition researchers? And why haven’t the media done their jobs of explaining what the mandate does and how and why it came about?
What follows is an abridged history of the individual mandate, for those who are curious about its paternity and might—just might—want to know how it came to be.
In “Romney’s Dilemma,” his fine New Yorker piece last year, Ryan Lizza reported that the conservative Heritage Foundation had promoted the idea of health insurance exchanges—a central location where people could shop for and choose among myriad offerings of private insurance sellers—a key provision of the Affordable Care Act and the Massachusetts law. Lizza noted that the exchanges would also “help accomplish another long-term conservative policy goal: transforming health insurance from a responsibility for employers to a responsibility for individuals.”
The notion of shifting the financial burden of health insurance from employers to individuals surfaced during the Clintons’ attempt at reform in 1993-94. Back then, politicians and the business community talked about making consumers buy health insurance instead of requiring employers to provide it (which the business community did not want), with the additional goal of pushing further off the table any possibility of government-provided coverage through a national health insurance system.
The mandate solution, accompanied by a shopping service and subsidies that would help people buy coverage, began to appear in the academic literature. Timothy Jost, a law professor at Washington and Lee University and a strong advocate of the Obama law, wrote in the New York University Law Review in 2001 that “a remarkably broad consensus has emerged as to how to address” the problem of the uninsured. The solution, wrote Jost, was a scheme of tax credits to help them buy insurance, proceeding “from the assumption that the best way to expand access to health care for the uninsured is to build on our current system of private insurance.” Obama and other supporters used that narrative during the reform debate and continue to do so. Remember the phrase “If you like your coverage, you can keep it”? By the 2004 presidential campaign, both John Kerry and George W. Bush supported some type of tax credit arrangement to help people buy coverage.
By 2005, political elites were looking carefully at an Urban Institute study done for the Blue Cross Blue Shield of Massachusetts Foundation. The study, known as the “Roadmap” and financed by the foundation and Partners Health Care, called for both an employer and an individual mandate, depending on the option politicians selected, as well as tax subsidies and a shopping service. Blue Cross, the state’s largest health insurer, and Partners, the largest hospital system, had much to gain from this solution. Blue Cross would get new customers and Partners hospitals would get a new income stream to cover the uninsured people who showed up in their facilities. The mandate and its accessories were now ready for the political process.
Romney loved the idea that the online shopping service would transfer responsibility for health insurance to individuals, Lizza reported. A document distributed by his office explained that the organizing principles of the Massachusetts law were “a culture of insurance” and “personal responsibility.” When he signed the law in the spring 2006, then-Gov. Romney told the assembled witnesses to history:
It’s a Republican way of reforming the market. Because let me tell you, having thirty million people in this country without health insurance and having those people show up when they get sick, and expect someone else to pay, that’s a Democratic approach. The Republican approach is to say ‘Everybody should have insurance. They should pay what they can afford to pay. If they need help, we will be there to help them, but no more free ride.’
Fast forward to Candidate Romney’s Michigan speech in May 2011, in which he outlined his own health care plan focusing on repealing and replacing the Affordable Care Act. “What Romney’s speech needs to say,” announced Politico’s headline, and the website then offered four possible messages: “I swear it’s different than Obamacare;” “Mea culpa, Sort of;” “Here’s why I could stomach the mandate;” and “Seriously, I’m offering something new here.”
Romney did not apologize for signing the law; instead, he invoked a states’ rights argument. While the mandate was good for Massachusetts, it might not be good for Mississippi, he argued, sprinkling his words with big-government overtones. The founding fathers did not want a “king-like structure” grounded in central government, Romney said, adding that, on his first day as president, he would sign an executive order to help states exit from the Affordable Care Act.
Fast forward again to February 2012. In a much-publicized talk at the Detroit Economic Club, Candidate Romney moved far away from the individual mandate and the model he once supported:
I will look at every government program and ask this question: Is this so critical that it’s worth borrowing money from China to pay for it? Of course, we’ll start with the easiest cut of all: Obamacare, a trillion-dollar entitlement we don’t want and can’t afford. It’s bad medicine, bad policy, and when I’m President, the bad news of Obamacare will be over.
But the media focused neither on Romney’s clever phrasing nor on the substance of what he said, and laced in stuff about the horse race that Romney might win. They sort of reported his positions on Medicare and Social Security. An AP story didn’t touch on Obamacare at all. The Detroit Free Press didn’t list health reform in its bullet points describing what was in Romney’s speech; its story said that no other details were available in the preview the paper got from the Romney campaign. The topic came up in pre-arranged audience questions, but the candidate tip-toed around it saying only “The first thing I’d say to him (Obama) is ‘You say you copied (the Massachusetts law,) how come you didn’t give me a call? I’d have told you what worked, what did not work.’”
Endnote: As the Romney-as-flip-flopper frame continues to intrigue the press, recall that Obama changed his mind, too. Early in his White House quest, he favored a requirement to cover only children and later moved to a full-blown requirement to catch everyone after his rivals supported it, and political forces pushed him to agree to it—the same political forces that pushed Romney to accept the mandate in 2006. And now conservatives in the GOP and the political and business interests they represent are pushing Romney away from the plan he once called a “Republican way of reforming the market.” That’s the real mandate story, and it’s far, far away from the opp artist gotcha spin du jour.