Eric Fehrnstrom, a senior Mitt Romney campaign adviser, said in an interview Monday that Romney agrees with Obama that the mechanism to enforce the so-called mandate that Americans have insurance - a provision modeled after the Massachusetts law Romney had signed as governor - was a penalty and not a tax, a statement that runs counter to what the rest of the GOP has argued in the wake of the Supreme Court ruling last Thursday.
"He disagreed with the ruling. He disagreed with the findings of the ruling. He disagreed with the logic that supported those findings. He said that he agreed with the dissent, which was written by Justice Scalia, and the dissent clearly stated that the mandate was not a tax," Fehrnstrom said on MSNBC's"Daily Rundown."
Other Republicans were reading from a different set of talking points. Faced with the court's somewhat surprising 5-4 decision to uphold the law, top GOP figures found a silver lining in Chief Justice John Roberts basing his majority opinion on the view that the law was constitutional based on the federal government's taxing authority.
"The American people ... do not want the government telling them what kind of insurance policy they have to buy, and how much they have to pay for it, and if you don't like it, we're going to tax you," House Speaker John Boehner said Sunday on CBS' "Face the Nation."
"(The court) was more honest than he was, and said Obamacare is a huge tax increase on middle-class families across America," Gov. Bobby Jindal of Louisiana said on a conference call organized by the Republican National Committee on Friday.
"In 2008, Candidate Obama promised middle-class American families that they wouldn't see their taxes go up under his administration, yet his signature legislation did just that," said RNC Chairman Reince Priebus.
Fehrnstrom, seeming to understand the awkward position the Romney campaign is in, parsed his words carefully. He criticized Obama for "celebrating" the majority opinion while he and members of his administration still dispute that the penalty for not having insurance is a tax. Romney, by contrast, has "consistently described the mandate as a penalty."
He also argued that the law "raises a series of taxes" elsewhere, "including on our medical device companies."
But to the main Republican argument on whether the mandate was enforced by a tax or a penalty, Fehrnstrom sided with the president and against the GOP.
"The governor believes that what we put in place in Massachusetts was a penalty, and he disagrees with the court's ruling that the mandate was a tax," Fehrnstrom said.
Asked host Chuck Todd: "But he agrees with the president, and he believes that you shouldn't call the tax penalty a tax? You should call it a penalty or a fee or a fine?"
"That's correct," Fehrnstrom answered. "But the president also needs to be held accountable for his hypocritical and contradictory statements, because he's described it variously as a penalty and as a tax."
The exchange shows how Republicans may diverge on health care messaging going forward. Congressional Republicans hope to use the tax issue to make a case against incumbent Democrats, particularly in the Senate, where the GOP is just a handful of seats away from taking majority control.
When asked on "Fox News Sunday" if the Romney mandate might also be a tax if Obama's was, Mitch McConnell, the Senate minority leader, answered: "I think Gov. Romney will have to speak for himself on what was done in Massachusetts."
Romney spokesperson Amanda Henneberg offered this comment to explain the Romney campaign's argument: "The Supreme Court left President Obama with two choices: the federal individual mandate in Obamacare is either a constitutional tax or an unconstitutional penalty. Governor Romney thinks it is an unconstitutional penalty. What is President Obama's position: Is his federal mandate unconstitutional or is it a tax?"
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