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In awkward agreement, Mitt Romney backs President Obama’s contention on mandate

Mitt Romney spoke after the Supreme Court’s decision on health care.
Mitt Romney spoke after the Supreme Court’s decision on health care. Charles Dharapak/Associated Press

Mitt Romney and President Obama, typically at distant poles on the national health care law and on taxes, found themselves in awkward agreement Monday, sharing the position that “penalty” — not the politically riskier “tax” — is the proper word to describe money owed to the government by people who flout the law’s mandate for health insurance.

Romney’s spokesman, Eric Fehrnstrom, begrudgingly conceded his candidate’s belief that Obama and his team — and not Republicans — are on the right side of a dizzying debate over how to characterize what the Affordable Care Act officially calls a “shared responsibility payment.”


Romney “disagrees with the court’s ruling that the [federal] mandate was a tax,” Fehrnstrom said in an interview on MSNBC.

It is a twist in political logic. Yet, Romney needed to back Obama on this in order to guard one of his most vital conservative credentials: that he did not raise taxes as governor of Massachusetts, where he championed a state law that, like Obama’s federal legislation, included an individual insurance mandate. If Romney were to label mandate payments as taxes, he would effectively undercut his own antitax credibility.

But Romney’s accord with Obama has several downsides. It puts him at odds with GOP leaders and deep-pocketed super PACs whose continued support he needs. They have declared the levy against people who fail to obtain health insurance a massive tax.

It also makes Romney, the presumptive Republican presidential nominee, open to charges of hypocrisy because he, too, has called the payment a tax at times.

And it, again, points out the difficulties Romney has in distinguishing his state health care law from Obama’s overhaul.

In a rare moment when he could not draw a sharp contrast between the two candidates, Fehrnstrom instead blasted the president’s vacillation, saying Obama changed his tune when the time came to defend the law before the Supreme Court.


“In order to get it past the Congress, he insisted publicly and to the members of Congress that the mandate was not a tax,” Fehrnstrom said.

“After it passed the Congress, he sent his solicitor general up to court to argue that it was a tax. Now he is back to arguing that it’s not a tax. So he’s all over the map,’’ he said

Since the Supreme Court upheld the health care law in a 5-4 decision last Thursday, on the premise that the payment is a tax, the Obama administration has struggled to reconcile its winning argument with the president’s repeated insistence that the payment is not a tax. Ironically, it was Chief Justice John Roberts’s disagreement with Obama on that point that saved the president’s signature domestic achievement from invalidation.

Top Republicans have claimed Roberts’s reasoning as a small victory: Obama won, they say, but only by presenting a case that contradicted his public rhetoric.

“The president had tried to [argue] for over a year that it wasn’t a tax, and nobody believed it and now we know it,” House Speaker John Boehner said Sunday during an interview on CBS.

But Fehrnstrom was forced to say Monday that Romney does believe Obama when he says the payment is not a tax.

“The governor believes that what we put in place in Massachusetts was a penalty,” Fehrnstrom said, adding that Romney consistently labeled it that way.


But Romney has not been so consistent, according to a review of his past comments.

During a Republican presidential debate in 2008, Romney agreed with moderator Charles Gibson when he characterized the payment made by Massachusetts residents who refuse to obtain health insurance as a tax.

In an op-ed published in USA Today in 2009, before the national health care law passed, Romney used the word “tax” when describing what federal lawmakers could learn from Massachusetts.

“Using tax penalties, as we did, or tax credits, as others have proposed, encourages ‘free riders’ to take responsibility for themselves rather than pass their medical costs on to others,” Romney wrote.

And on the day of the Supreme Court’s health care ruling, Romney at a news conference in Washington repeated his familiar assertion that “Obamacare raises taxes on the American people by approximately $500 billion.”

That tax estimate is a favorite of conservative super PACs and has featured prominently in some ads. The estimate comes from a report by the Heritage Foundation, which counted mandate payments as one of the health care law’s largest tax increases.

To the extent that Romney discusses his Massachusetts record, it is critical for him that the shared-responsibility payment be considered a penalty. Romney points to his early-term closure of a $2 billion budget gap, saying proudly that he balanced the state budget with no tax hikes.

In recent weeks, the Obama campaign has fiercely attacked Romney’s no-tax claim. One ad airing in swing states points to a long list of fees that Romney raised.


“Fees are an increase out of the pockets of every Massachusetts resident. That’s a tax,” said Mayor Rob Dolan of Melrose, a Democrat, in a separate Obama campaign video. “Let’s call it what it is.”

Callum Borchers can be reached at callum.borchers@globe.com. Follow him on Twitter @callumborchers.