Jonathan Gruber, a major architect of the Affordable Care Act, twice made comments in 2012 that seem to support legal arguments advanced by opponents who are challenging the federal health insurance law in court.
The remarks were captured in two separate recordings, one video and one audio, which bounced around social media Friday after surfacing on conservative websites.
But Gruber, a Massachusetts Institute of Technology economics professor, said Friday that it was all a mistake.
At issue is Congress’s intent in writing the law, which Gruber had a central role in crafting as a paid adviser to the Department of Health and Human Services. The 2010 law states that federal tax credits to help people pay for insurance are available for plans purchased “through an exchange established by the state.” But it is unclear on whether the subsidies are available for those buying coverage from the federal HealthCare.gov marketplace. The law’s supporters say the ambiguity was a drafting oversight, but opponents say it means that subsidies are not available on the federal exchange.
The US Court of Appeals for the District of Columbia ruled Tuesday that people buying health insurance in the 36 states that rely on the federal exchange are not eligible for tax credits to reduce premiums. Another appeals court ruled the opposite that day, saying the law was ambiguously worded.
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Those pushing the legal case against the Affordable Care Act say Congress deliberately wrote the law to offer tax credits only for the state-based exchanges as a way of pressuring states to set up their own exchanges. The video shows Gruber seeming to agree with that premise while answering questions at an event in January 2012.
“I think what’s important to remember politically about this is, if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits,” he says. “But your citizens still pay the taxes that support this bill. . . . I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges, and that they’ll do it.”
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The video appeared Thursday on a blog by the Competitive Enterprise Institute, which coordinated and funded legal challenges to the subsidies.
Gruber, reached by phone while organizing a conference Friday morning, referred the Globe to comments he made to the New Republic about the video.
“I honestly don’t remember why I said that,” he is quoted as saying. “I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law, and I made a mistake talking about it.”
Gruber goes on to speculate that he “may have been thinking” that if the federal exchange was not ready by 2014, people might not be able to get the tax credits in states that did not set up their exchanges.
“But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step,” he said. “That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-0 . . . you know, like a typo.”
A short time later Friday, blogger John Sexton posted on the Breitbart.com website an audio recording of Gruber making similar comments in San Francisco a few days before the video was made. Talking about possible threats to the law, Gruber says, “Will people understand that, gee, if your governor doesn’t set up an exchange, you’re losing hundreds of millions in tax credits to be delivered to your citizens?”
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“Obviously,” Sexton wrote, “Gruber can continue to claim he was wrong, but it becomes harder to explain this as the equivalent of a typo when he said it more than once.”
The revelation of Gruber’s 2012 comments kept bloggers on left and right busy Friday.
Philip Klein, writing in the Washington Examiner, said the recordings are unlikely to affect the legal case. “But in terms of the public debate,” Klein wrote, “this is nothing short of a bombshell. Liberals have launched a campaign to discredit anybody advancing the idea that subsidies were only available to state-based exchanges as alternately dishonest, ignorant, or insane. But now there’s video evidence of the left’s go-to expert on the law taking the same view.”
Jonathan Cohn, writing in the New Republic and apparently the only reporter to whom Gruber gave an interview, said the Gruber video does not change his view that Congress intended subsidies for everybody.
“I had literally hundreds of conversations with the people writing health care legislation in 2009 and 2010, including quite a few with Gruber,” Cohn wrote. “Like other journalists who were following the process closely, I never heard any of them suggest subsidies would not be available in states where officials decided not to operate their own marketplaces. a big deal that, surely, would have come up in conversation.”
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Nicholas Bagley, a University of Michigan law professor, provided much-retweeted solace to the law’s supporters in the Incidental Economist.
“If you think what Gruber said is some evidence about what the ACA means, you can’t ignore other, similar evidence,” he writes, pointing to a long list of people involved in drafting the law, journalists who covered the process, and academics who observed it, all saying they never heard of any threat to deny states subsidies if they used the federal exchange.
Felice J. Freyer can be reached at felice.freyer@globe.com or on Twitter @felicejfreyer
■ Correction: Because of an editing error, a previous version of the story misquoted Massachusetts Institute of Technology professor Jonathan Gruber in his explanation for his previous remarks regarding the law. “My subsequent statement was just a speak-0 . . . you know, like a typo,” Gruber said.