Ask Republicans what they feared most in this cycle from the presidential nominee, and the answer wouldn’t have been Mitt Romney’s health-care reform, Newt Gingrich’s personal baggage, or Rick Santorum’s losing record in Senate races. After the 2008 John McCain campaign – and the failed challenge by Bob Dole twelve years earlier – what conservatives feared most was nominating someone who would balk at an all-out fight against Barack Obama. And for a couple of days this week, some Republicans wondered whether their worst nightmare hadn’t once again come to life.
Last week, the Supreme Court delivered a legal victory to President Obama in its 5-4 decision to uphold the Affordable Care Act – commonly and derisively known as Obamacare – as constitutional. However, the narrow grounds of the decision turned Obama’s victory into a political body blow when Chief Justice John Roberts declared that the only way to do so was to treat the individual mandate as a tax. As a tax, the mandate will hit the middle class hardest: according to the CBO, 75 percent of the revenue in 2016 to the IRS for failure to comply will come from households earning $120,000 a year or less.
The political danger of this became immediately apparent to the White House, the Obama campaign, and Democrats in Congress. Obama issued a terse statement after the decision that never mentioned the basis on which the Supreme Court upheld it. His chief of staff, Jack Lew, appeared on Sunday talk shows to urge Republicans to stop debating Obamacare. Lew, Democratic Party chair Debbie Wasserman Schultz, and House Minority Leader Nancy Pelosi all tried to argue that the mandate was not a tax, an argument that got a little embarrassing for Lew when Fox News’ Chris Wallace played the audio of Solicitor General Donald Verilli arguing at the Supreme Court last March -- on behalf of the Obama administration -- that the court had to uphold Obamacare as a tax.
Republicans leaped at the opportunity to paint Obama as a big-taxing President. Within 24 hours, the RNC released a video that highlighted his 2008 pledge to not raise taxes on middle-class families. “If you are a family making $250,000 a year or less,” Obama assured an audience during his first presidential campaign, “you will not see your taxes go up.” In another clip from the general election, Obama assures a television audience that “you will not see one dime’s worth of tax increase.” Senate and House Republicans issued press-release attacks on the manner in which Obama’s health-overhaul tax would hit the middle class. Everyone expected the Romney campaign to follow suit, hammering Obama on his tax-pledge hypocrisy.
If the Supreme Court decision caught conservatives by surprise, however, the reaction from Team Romney shocked and infuriated them even further. Romney delivered a punchy and combative statement on Thursday shortly after the decision that inspired a massive donation surge through the campaign websites at the RNC and Romney campaigns, which resulted in $4.6 million from 47,000 donors in a 24-hour period. Over the weekend, however, longtime Romney spokesman Eric Fehrnstrom corroborated Pelosi, Lew, and Wasserman Schultz by arguing that the Obamacare mandate wasn’t a tax, undercutting the RNC and Republicans, momentarily giving Obama an out when he desperately needed one.
The reaction to Fehrnstrom’s latest comment arguably surpassed that of the court decision itself, at least on the Right. Conservatives angrily denounced the campaign for lacking fire. Joel Pollak, the managing editor of Breitbart.com, demanded, “Mitt, start fighting, or give up and let someone else do it.” Charles Krauthammer advised Romney to worry less about consistency, and to “use whatever end of the argument you need at the time.” By Tuesday morning, Josh Kraushaar reported for The Atlantic that Team Romney appeared to be declaring a truce on Obamacare – which the campaign denied, a denial underscored by the initial splash screen for the campaign website, which explicitly challenged Obama on health-care reform.
It’s not the first time Fehrnstrom had created a controversy for Romney. During the primary campaign, Fehrnstrom told CNN that pledges made in primary campaigns could be set aside during general elections, “almost like an Etch-a-Sketch. You can shake it up and we start all over again.” In this case, though, Fehrnstrom was trying to protect Romney from the logical conclusion of an attack on Obamacare’s mandate as a tax, which is that Romney’s health-care reform mandate in Massachusetts would then also have to be considered a tax. Consider what exactly Fehrnstrom told NBC’s Chuck Todd:
“Chuck, the governor has consistently described the mandate in Massachusetts as a penalty. Let’s take a step back and look at what the president has said about Obamacare. In order to get it past the Congress, he insisted, publicly and to the members of Congress, that the mandate was not a tax. After it passed the Congress, he sent his Solicitor General up to the Supreme Court to argue that it was a tax.”
In other words, the Romney campaign had decided to hit Obama over his hypocrisy in arguing both ways on the mandate as a tax – one way in public, and another at the Supreme Court – rather than as a tax raiser. It also put Romney in position of siding with the four conservative jurists who insisted that the entire law needed to be thrown out and that the tax argument was decided incorrectly; Fehrnstrom told Todd in the same interview that Romney “agreed with the dissent that was written by Justice Scalia.” Had the strategy been executed more deftly, it would have kept the Romneycare issue out of the way without stepping on the “It’s a tax!” argument from other Republicans. That might have been a clever plan, had Fehrnstrom not given the specific quote that “the mandate was not a tax.”
Sensing the rift opening on the Right, Romney moved quickly to shift his strategy. By yesterday morning, Romney told CBS, “The majority of the court said it’s a tax, and therefore it is a tax.” The speed with which Romney adjusted his attack is consistent with the rapid response efforts of Team Romney over the last two months, which had until now won praise from conservatives as a huge improvement over the relative lack of fight from the 2008 campaign of John McCain.
This episode shows that Romney and his team are carefully watching the conservative base in this election, but demonstrates more the deep anxiety left over from the last presidential campaign – and the short leash that they are willing to give Romney. The Republican may have to fight the ghosts of campaigns past more than Obama to get conservatives to put their full trust and support behind him.