Tax or penalty? Romney, others still honing message on ObamaCare fine

FILE: June 21, 2012: Then-GOP presidential candidate Mitt Romney speak in Orlando, Fla. (AP)

The Romney campaign attempted Monday to clarify the candidate’s position on what consequence Americans will face for failing to buy health insurance under the Affordable Care Act, saying the candidate considers the fine an “unconstitutional penalty” rather than a tax.

The campaign took the position despite efforts by some Republicans to label the controversial fine a tax -- after the Supreme Court took that position in its ruling last week upholding the law. The Romney campaign, though, also suggested President Obama was trying to have it both ways, by embracing the Supreme Court decision while continuing to call the fine a "penalty" in public.

Mitt Romney's campaign challenged Obama to make a decision -- either call it an unconstitutional penalty or a "constitutional tax," but not both.

The clarification followed senior campaign adviser Eric Fehrnstrom saying earlier in the day that Romney thinks the consequence is a penalty, the same position he took on a similar fine under the statewide health care initiative he instituted as Massachusetts governor.

“The governor has consistently described the mandate in Massachusetts as a penalty,” Fehrnstrom said on MSNBC.

The position clashed with statements from other Republicans who have said since the recent Supreme Court ruling that the mandate fine is a tax. With Obama and hundreds of Democrats in Congress up for election in the fall, Republicans have suggested they'll have a hard time defending the law now that its central provision is, according to the court, a tax.

But the Romney clarification is also the most recent attempt by both parties to make sense of the high court's ruling, and establish a clear position for their surrogates. The ruling put Democrats in the awkward position of having to deny the fine amounts to a tax, while accepting that the only reason the law was upheld is because the Supreme Court defined it as a tax. And Republicans, in some cases, embraced the tax label in order to hammer the law's supporters, even though that's the label that made the law legitimate in the eyes of the court.

The clarification from the Romney campaign could complicate efforts by other Republicans to drive the tax-hike theme, but at the same time allows Romney to take on the court's decision directly.

Fehrnstrom said Monday the governor disagreed with the ruling of the court and agrees with the dissent written by Justice Antonin Scalia, “which clearly states the mandate was not a tax.”

On Sunday, White House Chief of Staff Jack Lew insisted the consequence was not a tax -- an apparent attempt to avoid an election-year, GOP bludgeoning about a tax increase.

However, Democratic and Republican leaders appeared to stumble on their position, or at least their wording.

“"It's a ta—. It’s a penalty for free riders," House Minority Leader Nancy Pelosi said on NBC’s “Meet the Press.”

GOP House Speaker John Boehner said on CBS’ “Face the Nation” that Americans are being required “to either provide health insurance or pay a fine.”

He immediately caught himself, saying “Well, I'm sorry, a tax. It's now a tax, since the court said it was a tax.”

Fehrnstrom and other Republicans argue the problem is largely that when Obama presented the plan to Congress he had to call the consequence a penalty because lawmakers would have balked at passing a tax increase. Then he sent lawyers before the high court to argue the consequence was a tax, and now the administration is calling it a penalty.