Who Decides Congressional Intent?

The whole hep conservative policy world (or at least the portion not burning incense before the image of Paul Ryan) is abuzz today with the discovery of a 2012 video in which Jonathan Gruber, the Massachusetts health plan wizard and consultant to the Obamacare architects, seems to be suggesting people in states who didn’t set up exchanges would be denied purchasing subsidies. TNR’s Jonathan Cohn reached out to Gruber for a reaction:

Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. “I honestly don’t remember why I said that,” he said, attempting to reconstruct what he might have been thinking at the time. “I was speaking off-the-cuff. It was just a mistake.” As evidence that it was not indicative of his beliefs, he noted that his projections of the law’s impact have always assumed that all eligible people would get subsides, even though, he said, he did not assume all states would choose to run their own marketplaces.

While the Gruber video may cause heartburn to those who have maintained absolutely nobody could have possibly thought the subsidies weren’t available to people in the federal exchanges, it really doesn’t tell us much about congressional intent, as Cohn points out:

What do I think? As I’ve written before, I had literally hundreds of conversations with the people writing health care legislation in 2009 and 2010, including quite a few with Gruber. 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.

It’s certainly true that plenty of people who wrote and implemented the law preferred states to be in charge of their own marketplaces—in part, the thinking went, because state officials would have a better feel for the idiosyncrasies of their insurance markets. It’s also true that, under the law, states that created their own marketplaces had access to some extra funds to carry out the task. But nobody made threats of withholding subsidies, which were much larger and essential for expanding coverage, as far as I know.

It’s going to take more than one video from one wonk to contradict that reality.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.