As Massachusetts governor, Mitt Romney imposed a penalty on people who could afford health insurance but chose to go without it. As Republican presidential candidate, Romney opposes the federal health care law that does the same thing.
Last week, Romney's top campaign adviser said the federal penalty for refusing to get health coverage was exactly that -- a fine, not a tax. This week, Romney said it is a tax because the Supreme Court opinion he opposes declared it a tax.
Confused? So is the Romney campaign, apparently.
The back-and-forth shows the tightrope Romney must walk on the health care reform issue now that he is the certain Republican presidential nominee.
Rebounding from last week's Supreme Court decision that upheld the constitutionality of President Barack Obama's signature legislative achievement, Republicans seek to galvanize conservative contempt for the measure into a wave of electoral support in November.
They know that the only way to repeal the 2010 health care law is a GOP landslide that wins the White House and both chambers of Congress, so they want to make the act a major campaign issue.
Specifically, Republicans have seized on the high court's 5-4 ruling that the government has the power to enforce the health insurance mandate through its taxing authority. They contend the ruling shows Obama lied to the American public when he repeatedly denied in 2009 that the individual mandate amounted to a tax increase.
However, Romney's support for the same kind of individual mandate -- the requirement that eligible people have health insurance -- during his term as governor in Massachusetts leaves him vulnerable to questions about where he really stands.
Former GOP candidate Rick Santorum focused on that vulnerability during the Republican primary campaign, constantly pointing out that Romney lacked credibility in opposing the 2010 federal law known as Obamacare because of his support for similar reforms in Massachusetts.
The Supreme Court ruling put Romney in the uncomfortable position of either having to support his past as a tax-raising move, or support Obama's contention the mandate was not a new tax after all.
In an apparent effort to avoid any tax hike implications for the Massachusetts law implemented under Romney, campaign adviser Eric Fehrnstrom declared last week that the candidate believed the mandate amounted to a penalty on so-called free riders -- people with the means to buy health insurance who refuse to do so, putting the burden of their health care on taxpayers.
"He agreed with the dissent written by Justice (Antonin) Scalia, which very clearly stated that the mandate was not a tax," Fehrnstrom told MSNBC.
Fehrnstrom's comment prompted immediate anger from Republicans eager to use the tax issue as a cudgel against Obama.
The Wall Street Journal, in a harsh editorial Thursday, called such campaign confusion an "unforced error" that it said "fits with Mr. Romney's fear of being labeled a flip-flopper, as if that is worse than confusing voters about the tax and health-care issues."
"Mr. Romney favored the individual mandate as part of his reform in Massachusetts, and as we've said from the beginning of his candidacy his failure to admit that mistake makes him less able to carry the anti-ObamaCare case to voters," the editorial said.
Romney sought to correct the problem Wednesday, clearly stating for the first time that the mandate is a tax.
He used the Supreme Court ruling as a shield against questions about his record, saying what he did in Massachusetts was a permissible penalty under law, but what Obama is doing can only occur as a tax, according to the high court.
"I think it was a mistake on the part of the court, but you know, they do get the last say," Romney told CBS in an interview broadcast Thursday. Questioned further, Romney offered this explanation:
"Well, I said that I agreed with the dissent and the dissent made it very clear that they felt it was unconstitutional. But the dissent lost. It's in the minority. And so now the Supreme Court has spoken. And while I agreed with the dissent, that's taken over 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. You can try and say you wish they had decided a different way, but they didn't."
In particular, Romney noted that the Supreme Court ruling said states have "police power" to impose penalties and mandates, which is what he did in Massachusetts. According to the ruling, "the federal government does not have those powers, and, therefore, for the Supreme Court to reach the conclusion it did, that the law was constitutional, they had to find it was a tax and they did," Romney continued.
"Like it or not, it's a tax," he said.
The Obama campaign also has some confusion on the matter. Spokesman Ben LaBolt said Thursday that the president also disagrees with the Supreme Court that the individual mandate amounts to a tax on eligible people who don't have health insurance.
He argued on CNN that Obama has been consistent in characterizing the required payment by people without insurance as a penalty, even though the solicitor general argued before the Supreme Court that the government's taxing authority permitted the individual mandate provision.
The government argument "never referred to it as a tax," LaBolt said. "It said it was a penalty, and that's under the section of the law that is the tax code, but it said very specifically it's a penalty."
LaBolt also said Romney now "disagreed with his own campaign advisers and disagreed with himself about whether his own mandate is a tax."