New videos surfaced Friday that could debunk the claims of Democrats who say that the Affordable Care Act, or "Obamacare," did not intend to deny insurance subsidies in the states that did not set up their own health care exchanges. The finding could lead courts to prevent millions from getting health insurance and to an unraveling of the new health care law, without a legislative fix.
Two federal courts offered separate opinions this week on whether the ACA does not allow health insurance subsidies in states that did not set up their own health care exchange. A D.C. Appeals Court panel sided with Republicans in finding that the plain language of the ACA does not allow subsidies to go to states where the federal government, rather than the state government, set up the health care exchange. A Fourth Circuit panel sided with the Democrats in finding that the law never intended to deny the subsidies in federal exchanges, even if the language of the law suggests that is the case.
"It's absurd to think that Congress intended those subsidies be available only in the state exchanges," Senate Majority Leader Harry Reid said in a Monday press conference after those court decisions.
New evidence suggests, however, that is exactly what Congress intended.
Supporters of the law wanted to deny the subsidies in order to encourage states to form their own exchanges, Jonathan Gruber, an economist at the Massachusetts Institute of Technology and one of the main architects of the ACA, claimed in 2012.
"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," Gruber said in a January 2012 presentation on the ACA for Noblis, a nonprofit research organization.
A video of his presentation was uploaded Thursday by Ryan Radia for the Competitive Enterprise Institute, a libertarian think tank. Word of the video quickly spread and Gruber was interviewed about the remarks by The New Republic, a liberal news magazine.
"I honestly don't remember why I said that," he said. "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. ... But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn't take that step. 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-o — you know, like a typo."
On Friday, however, Breitbart's John Sexton uploaded an audio of Gruber speaking in another venue around the same time saying again, this time even more explicitly, that the ACA denied subsidies to citizens in states that did not set up their own exchanges. The law did that, Gruber clearly explained, so that voters in those states would encourage their elected representatives to set up the exchanges.
"Now, I guess I'm enough of a believer in democracy to think that when the voters in states see that by not setting up an exchange the politicians of a state are costing state residents hundreds and millions and billions of dollars, that they'll eventually throw the guys out. But I don't know that for sure. And that is really the ultimate threat, is, will people understand that, gee, if your governor doesn't set up an exchange, you're losing hundreds of millions of dollars of tax credits to be delivered to your citizens," he said in a January 10, 2012 speech to the Jewish Community Center of San Francisco.
Could this have simply been another "speak-o"? It would be "awfully strange," Peter Suderman pointed out for Reason, if his "speak-o" just happened "to match not only the statement he made a week later, but also the plain language of the health law ... ."