If there was one point of bipartisan agreement at yesterday's House hearing on Obamacare: M.I.T economist Jon Gruber said something stupid. Just really, really dumb.
"Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter, or whatever, but basically that was really, really critical for the thing to pass," Gruber said in one of the clips.
"Stupid — I mean absolutely stupid," is how Rep. Elijah Cummings (D-Md.) described Gruber's remarks — and he's a huge Obamacare booster.
Democrats think Gruber said something stupid. Republicans think Gruber said something stupid. Even Jon Gruber himself thinks Jon Gruber said something stupid. He described his comments as "uninformed and glib."
Legislators spent a good deal of the 4-hour hearing discussing and dissecting the stupidity of Gruber's "stupid voters" comments. But here's the thing: whether or not Congress thinks Gruber is stupid doesn't matter that much. What matters, rather, is whether the Supreme Court thinks Gruber is smart. But that didn't come up much at the hearing.
The Gruber gaffe that really matters
Most of the House hearing focused on multiple videos, surfaced mid-November, where Gruber suggested that the "stupidity of the American voter" helped Obamacare pass.
Yes, these videos are embarrassing. No, they're not particularly consequential — not in the way that some prior videos could be.
There are two videos, both shot in January 2012, show Gruber talking about the subsidies under Obamacare. And in it, he seems to side with the Obamacare opponents' argument in King v. Burwell: that the law meant to limit financial help to the states that built their own marketplaces.
"What's important to remember politically about this, is if you're a state and you don't set up an Exchange, that means your citizens don't get their tax credits," Gruber says in one of the clips.
Gruber has previously said the comments were a "mistake" and he didn't remember why he said them. But he told legislators Tuesday that he had meant to describe a situation where the federal government never built a back-up exchange (Peter Suderman has expressed some skepticism of this explanation, worth reading here).
Gruber is, obviously, not a member of Congress — and it's what Congress intended to do that will matter most in the Supreme Court decision on King v. Burwell. The justices are trying to figure out what legislators meant at the time they drafted the language around subsidies in Obamacare.
As to what legislators meant, the justices have scant information to rely on. There are no emails or floor speeches back from when the health law was being drafted where members of Congress said "Of course we meant for all states to have subsidies" or "No, that's absolutely ridiculous."
(For what it's worth, everyone I've talked to who drafted the bill — from Congressional staff to White House aides to members of Congress themselves — say they did indeed intend to give all states subsidies).
Enter, Gruber — a health economist who was doing economic modeling for the White House and House Democrats. It's possible that if the Supreme Court sees him as a reliable narrator — if they see him as smart and credible — they can rely on what he said as evidence of legislators' mindset. He could be seen as an interpreter of legislative intent.
No court has ruled on the Obamacare subsidies issue, so we haven't seen how the legal system thinks about his remarks. We'll find out sometime in 2015 whether or not the Supreme Court will bring them into their legal decision process.
What was on display in the House hearing yesterday was how little power Congress now has over Obamacare. They can spend four hours asking Jon Gruber questions; it won't change the health care law's trajectory. The only real threat left is the Supreme Court. Any evidence that can bolster challengers' case against the law in arguments there this spring — things like Gruber's remarks — are what can have a tangible effect in seriously derailing the Affordable Care Act.