Latest Halbig Gaffe Shows Wonks Were Not Well Informed About the Issue at the Time

It turns out Jonathan Gruber was not the only Obamacare wonk to have a “speak-o” about the issue of subsidies and state exchanges. This newly uncovered error is important in a different way.

Back in 2010, after the Senate bill was passed but before it became law, health care wonk Jonathan Cohn gave an interview with NPR‘s Fresh Air in which he suggested there might be an opt-out for states (hat tip to American Commitment for the clip):

GROSS: Now, there’s also an option, isn’t there, is a Senate bill, to opt out of the exchange?

Mr. COHN: There is some kind of opt out,
and I’ll be honest. This is not something I’ve looked into that closely
because I don’t think it’s going to end up in the bill. But you know,
basically this I believe was part of the Ben Nelson compromise.

Basically, where a state could opt out of
the exchanges, I find it hard to believe a state would actually do
that. You know, it’s – if you think about the history of these sorts of
things, Medicaid was set up and is, remains, an optional program for
states. States can opt out of Medicaid if they want to.

They don’t because there’s a lot of
federal money they are entitled to if they participate in Medicaid. In
addition to that, it helps them cover poor people in their state, and if
they don’t get that money from Medicaid, they’re going to be totally
responsible for this on their own.

I can’t possibly imagine a state opting
out of an insurance exchange, given it’s a good deal for the state. And I
know a lot of states are nervous about what’s going to happen with
this, but at the end of the day, I just don’t see it happening.

There are important things this clip tells us but first let’s note one thing it does not. This obviously doesn’t prove what was in the Senate bill that became Obamacare. Maybe if Cohn had forcefully presented this as absolute fact, but he didn’t. He said in the interview it, “was not something I’ve looked into that closely.” As he suggested in his response post this morning, what he should have probably done is stop talking. Instead he speculated about some things he wasn’t clear about.

So put aside the idea that this is a smoking gun. It’s not. Nevertheless this tells us something very important that needs to be emphasized. As Sean Davis points out in an excellent piece at The Federalist, many of the left’s health care wonks have been saying the Halbig plaintiffs claims simply can not be right because, if they were, the left’s wonks would have known about this issue at the time. The “we would have known” claim has been ubiquitous.

But Cohn really was carefully and diligently covering the bill at the time and he didn’t know much about this issue. That was true even though it had first cropped up in the HELP bill seven months earlier. It suggests he probably wasn’t familiar with the legislative history regarding this particular issue either. If he had been, he could have given a more factual answer to the question. Instead what we hear is someone emphasizing that we just don’t need to worry about that because states won’t go there.

I suspect that’s what nearly everyone believed at the time. I pointed out earlier this week that the language in the HELP bill, first published in mid-June, is very clear that states which resist the new law will be cut off from subsidies for a period of years. And yet, there’s little evidence that anyone–I’m thinking specifically about Ezra Klein–ever mentioned this feature of the bill even when writing specifically about how it handled exchanges and subsidies. It was there in the bill but it was mostly, perhaps even completely, overlooked.

What Cohn’s statement from 2010 and Klein’s non-statements from 2009 tell us is this: No one was focused on this issue at the time. Everyone pretty much assumed states would set up exchanges. So when we hear these same folks telling us now that there’s no way something so critically important could have escaped their notice, well, the clip above proves that’s just not true. When it was in a real bill produced by the Senate, they didn’t seem to notice.

This doesn’t prove they are wrong about what Democratic Senators intended with the final bill, but it does prove the wonks certainly can’t claim their own ignorance (and apparent silence on the matter) as proof of what was or was not intended.