Tuesday, July 29, 2014

Jonathan Gruber

I don't like to accuse people of lying, because usually what they have done can be accounted for by mistakes, excessive optimism, and other non-malicious reasons. What Jonathan Gruber has done can only be described as bald-faced lying. He did not make a "speak-o," the speaking equivalent of a typo, as he claims. A speako would be saying that there are 57 states (for instance). Stating over several complete sentences that the ACA required states to set up their own exchanges in order for their citizens to qualify for subsidies, on the other hand, can only be done through deliberate and conscious choice. Stating it three times on three different days could not possibly have been a mistake, and claiming now that it was a mistake cannot be anything but a lie. A cowardly, shameful lie.

This much is obvious to pretty much everyone. What I wanted to make special note of was Gruber's initial response to the argument that providing subsidies through the federal exchange was contrary to the law. While acknowledging that the law, as written, limited subsidies to state exchanges, he asserted that this was "just simply a typo, and it's really criminal that this [case] has even made it as far as it has."

Do you see that? People who think Congress intended the law to mean what it actually says are not only wrong, they are so far wrong that it is "criminal" for the case to have proceeded to court. Even earlier, in January 2013, he said that the idea that subsidies were limited to states with exchanges was “screwy interpretation” of the law. "It’s nutty. It’s stupid."

Screwy, nutty, and stupid. Even if Gruber hadn't been identified as a notorious liar, is this the way to conduct political discourse? Too much of our political conversation is dominated by people who talk as though their opponents were certifiably insane. Maybe in some cases, an idea is too ridiculous to be taken seriously; but surely this is not normally the case. Whatever happened to, "I see why my opponents would believe this, but they are incorrect"? Especially in a case like this, in which the law plainly states exactly what his opponents are arguing. Couldn't Gruber see any reason why people might reach the opposite conclusion from him? Is it so completely irrational to believe that Congress intended the law to mean what it says?

The fallback defense for ACA supporters is that Gruber is not a member of Congress, so it doesn't matter what he thought it meant. This might count for something if Congress actually wrote its laws, but how many Congressmen do you think were actually involved in writing ACA? The representative chiefly responsible for ACA, Max Baucus, admits that he did not even read it. “I don’t think you want me to waste my time to read every page of the health care bill. You know why? It’s statutory language. We hire experts.” So if anyone is going to understand what the law was about, it would be Gruber, the leading expert hired to draft the law.

This brings up another interesting problem: if Congress members did not write or even read the law, and therefore we can't judge the law by what is written in it, what are we to use as a guide? Is it up to a court to go back to the debates and discussions about a bill to decide what it meant? What happens when different people interpreted it differently? What if key decisions were made in closed conferences that we cannot access? Using the plain text of the law is the only sensible standard. Now, I will admit that if a law said, "All people named Fred shall be cast upon the rocks and killed," a court might reasonably conclude that this passage had been inserted by mistake -- perhaps maliciously -- and should not be enforced. But there is a great difference between a self-evidently riduculous clause in a law and a clause that some people argue wouldn't make sense in the context of the law. The latter gets into murky waters very quickly.

This whole incident gives credence to the "read the bill" movement. Frankly, I think if Congress members can't be bothered to read a whole law, they can't very well expect citizens to do so (remember, ignorance of the law is no excuse). This is especially the case if we are finding errors in written laws. There are 535 members of Congress altogether, and if every one of them read the whole law, you would think that someone would notice a mistake as important as the alleged mistake about health care subsidies. I don't think courts often give private citizens a pass in contracts if they intended something other than what they agreed to, and I don't think it should be in the business of guessing what Congress meant. Congress should have enough care with its laws to write them correctly before passing them.

(Incidentally, has there ever in history been another case of a law allegedly marred by a mistake in this way? I can't recall one, but that doesn't mean there isn't one. I would be curious to know.)

(Also incidentally, this is not the first time Gruber has changed his mind about the meaning of the bill after it passed. When it was still being debated, he insisted that the health care law would reduce costs, but later said it would increase costs significantly.  Whether these changes were conscious or not, he has about as much credibility as a member of the Liars' Club with his fingers crossed.)

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