Michael Cannon and Julie Rovner in NIHCM webinar
One of the architects of the
King v. Burwell lawsuit challenging Obamacare, Cato Institute's Michael Cannon, is stubbornly trying to rewrite the history of the legislation to try to force it to conform to his case. He needs to convince the Supreme Court that congressional Democrats planted a time bomb in the law, on purpose, to punish states that didn't set up their own health insurance exchanges by taking federal subsidies away from those states' residents. That's a premise that has no basis in the history of the law, but that's not stopping Cannon. He's even going so far as to
tell a journalist who covered that history that she didn't write what she actually wrote in January, 2010.
Here's some background. Back in 2009 and 2010, when Senate and House negotiators were working on reconciling their disparate visions of the Affordable Care Act, House Democrats had a big concern with what the Senate wanted to do about exchanges and the states. The Senate wanted all the states to have their own exchanges and to be able to set up their own laws regulating those exchanges. House Democrats wanted one national exchange so that they could be sure that the federal law was applied and implemented equally across the states. They were worried that states that were hostile to the law would work to hinder its implementation through the state laws the Senate wanted them to create (an extremely well-founded fear as it turns out). What happened was a compromise, a federal exchange set up as the House wanted that would be the fallback for states that chose not to set up their own. It did not include the real sticking point for House Democrats—states setting up their own laws to govern what would be on the exchanges.
Now back to our reporter, Julie Rovner, who wrote this piece back in January, 2010 about the back-and-forth between the House and Senate. In it she includes this snippet:
Indeed, on Monday a group of Democratic House members from Texas wrote to President Obama urging that the House approach be preserved in the final bill. They worry that because leaders in their state oppose the health bill, they won't bother to create an exchange, leaving uninsured state residents with no way to benefit from the new law.
Fast forward five years, and you've got Cannon and Rovner participating together in a webinar, and Cannon
using that one paragraph in Rovner's reporting to make the false argument that Congress meant to withhold subsidies from states that did not create their own exchanges. Rovner pointed to the whole story—which was not about subsidies—and specifically to the paragraph directly preceding the one Cannon cites to show that those Texas Democrats were talking about the potential for a state to refuse to participate in the law at all under the Senate's plan. They weren't talking about subsidies at all. Cannon, however, refused to hear Rovner's explanation, demanding that he still had to be "convinced." His interpretation is the only possibly explanation for what she wrote, even though a clear reading of her story argues otherwise.
Which is kind of the whole premise behind this deeply flawed case. While the entire history, intent, and context of the law argues against the King plaintiffs, their case depends on a narrow and purposefully misreading of the law. As the Constitutional Accountability Center reports:
It takes more than a little gall to tell a reporter that she is misinterpreting her own reporting, but Cannon's tactic yesterday was characteristic of the entire strategy of the ACA’s challengers in King. As Ian Millhiser mentioned, with Rovner, Cannon has engaged in classic "mansplaining." But Cannon and Adler have also told sitting Members of Congress what they meant by the legislation they passed. Apparently, Cannon and Adler believe they have some magical ability to know what was in the minds of former elected officials, too, including Senator Max Baucus and Senator Ben Nelson, and still-serving officials like Rep. Doggett.
That's even in the face of clear denials from Baucus (Cannon was forced to
retract his assertion about what Baucus intended to do on tax credits) and Nelson (who has
clarified that he never intended to restrict the subsidies in a letter submitted in a brief filed by Democratic congressional leaders). That's because the entire case is built on a false premise and if the plaintiffs are forced to admit that, they're sunk.