Sunday, July 1st, 2012

'This Week With George Stephanopoulos'
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(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: For us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase.

GEORGE STEPHANOPOULOS, ABC HOST: But it may be fair, it may be good public policy.

OBAMA: No, but, George, you can't just make up that language and decide that that's called a tax increase.

STEPHANOPOULOS: I don't think I'm making it up. "Merriam-Webster's Dictionary", "tax: a charge, usually of money, imposed by authority on persons or property for public purposes."

OBAMA: George, the fact that you looked up Merriam's dictionary, that the definition of tax increase, indicates to me that you're stretching it a little bit right now.

STEPHANOPOULOS: I wanted to check for myself, and your critics say it is a tax increase.

OBAMA: My critics say everything's a tax increase.

STEPHANOPOULOS: But you reject that it's a tax increase.

OBAMA: I absolutely reject that notion.

(END VIDEO CLIP)

STEPHANOPOULOS: Apparently Chief Justice John Roberts does not. And you saw that debate continues this morning. We're going to keep going on our roundtable, joined as always by George Will; Donna Brazile; our Supreme Court reporter Terry Moran; Artur Davis, former Democratic congressman, now a Republican, supporting Mitt Romney; and, of course, Keith Olbermann.

George, let me begin with you. There are so many ironies in this case. You know, you saw President Obama's signature legislation upheld by a chief justice he opposed with an argument (inaudible). You had one more. You say that this is a major victory for conservatives.

GEORGE WILL, AUTHOR: Yes, and I'll tell you why. The conservative legal insurgency made two arguments, both of which were dismissed as frivolous by the liberal law school professoriate, both of which won.

Both were the broccoli argument, the Tea Party argument, if you will, argument against the Commerce Clause, said if you affirm this under the commerce clause, you will have given the federal government a general police power to prescribe mandate or regulate behavior of every individual at every instance of their existence.

The court did not do that. In fact, it built a fence around the Commerce Clause. Then, on Medicaid expansion, for the first time in history, a majority of states banded together to challenge the constitutionality of legislation and they won.

For the first time since the New Deal, 75 years, the Supreme Court has overturned a federal spending statute (inaudible) by coercing the states, it undermines the dual sovereignty that is the heart of our federal position.

So for two reasons -- and these reasons are going to be there if, come November, there's a Romney presidency, and a Republican Senate, ObamaCare will gone. The Roberts precedents will remain.

STEPHANOPOULOS: Price worth paying, Keith Olbermann?

KEITH OLBERMANN, POLITICAL COMMENTATOR AND WRITER: I think so, because we may be overthinking this from a larger standpoint in this country. The premise of the mandate as tax or tax as mandate, the various subdivisions of what the meaning is, aren't -- they're important to us; they're important to people analyzing this.

To the public, the outcome was something the president proposed was upheld. Also in a larger sense, if you think about what is a mandate, do we have them? Are they -- is this taxation possibility for non-users legitimate?

Every day in our lives we are subjected to the largest mandate any of us could ever have. We have to buy a product each day called the United States government. That mandate supplies everything from wars that we don't go along with, to solicitor generals we disagree with, to the salaries of the Supreme Court justices.

So I think if you look at this from a layman's point of view, I think it's a pretty clear-cut victory for the president.

STEPHANOPOULOS: Do you agree?

ARTUR DAVIS, FORMER CONGRESSMAN: No, I don't think it's a victory for the president. Though I do agree with Keith's point that the average person is not going to get caught up on the legal nuances.

The bottom line is that a law that is the single least popular piece of domestic legislation and, arguably -- you know, George is the history maven here, but arguably since 1938, this is the least popular domestic legislation that's passed.

I remember when the debate was going on in 2009 and 2010, the Democratic mantra was, well, as soon as this has the legitimacy of being signed into law, people will decide they like it. They'll give Democrats credit for a win.

Now, I hear my Democratic friends saying, well, now that it's been given the imprimatur by the Supreme Court, that will somehow give it legitimacy. The people who don't like this law, the independents, conservative Democrats and swing voters who don't like it, they don't dislike it because of their constitutional jurisprudence. They're not carrying one around.

They dislike it because they think it costs too much money, they think it's unpredictable, they think it goes further than it needs to, and I don't see any of those doubts going away, especially when a significant part of this law still doesn't go into effect for another four years.

STEPHANOPOULOS: Donna?

DONNA BRAZILE, VICE CHAIRWOMAN, DEMOCRATIC NATIONAL COMMITTEE: Well, I don't believe that people dislike it because it's an overreach of government or for many Democrats who dislike it, it didn't go far enough. We didn't achieve a single-payer option.

We will see just how bold the Republicans will be if they manage to try to repeal and then replace it. We know that they've already -- in the House they voted already last year to try to repeal -- repealing it as a job-killing act, and then there's another vote scheduled as Mr. Ryan said in a few weeks.

But look, George, the big issue is that this was a moral victory for the country in large part because we have millions of Americans today who are already enjoying the benefits of this act, whether it's senior citizens who are paying less for their prescription medicine, young people, 3 million or more who are still on their parents' insurance up until the age of 26.

And, of course, I'm no longer a pre-existing condition as a woman, the majority of the population. So the Republicans will continue to make their arguments. And many of them are misleading. But Democrats will have to continue defending.

STEPHANOPOULOS: And I want to get to more of the politics in just a minute. Before we get to this, let me turn to Terry Moran, who covers the Supreme Court for us and talk a little bit more about the role about Chief Justice Roberts. The vote did surprise a lot of people, even some suggestions that he switched his vote some time in the last couple of weeks.

TERRY MORAN, ABC CORRESPONDENT: It's fascinating, George. This opinion is a detective story. If you read it, you see the clues that something happened. It looks like Chief Justice Roberts switched his opinion.

(CROSSTALK)

STEPHANOPOULOS: And he voted the first 12 or so pages of the dissent.

MORAN: Right, and then couldn't go along with the conservatives who wanted to strike down the whole law, because if you think that some of Chief Justice Roberts' opinion is logically torturous, read the dissent on striking down the whole law. They plow through lots of precedent in order to do that. But not for the first time here.

The big-picture question -- not for the first time; George Will is right and Glenn Beck is wrong. This is a major --

(LAUGHTER)

MORAN: -- this is a very significant victory for conservatives. From now on, liberals who want to use the federal government in innovative and creative ways, unprecedented ways to solve problems are going to be playing defense at the Supreme Court.

STEPHANOPOULOS: And, George, you and I were both struck by this article by Charles Lane in "The Washington Post," saying that this compromise that Justice Roberts fashioned is actually true to his deepest principles.

WILL: Exactly. Three things about Justice Roberts: he's not a fool, he's not a liberal and he's 57. He's going to be here for 20 more years, at least, through three or more presidencies. And he's going to be building upon new ways of circumscribing the latitude of Congress in particular, but the federal government in general.

DAVIS: Let me take issue with this idea that this is some kind of a closet victory for conservatives. The reality is that, yes, the Commerce Clause I suppose was strengthened. I guess theoretically, it's harder to pass mandates now. Politically, it's always going to be hard for Congress to pass mandates. If Republicans frankly --

(CROSSTALK)

STEPHANOPOULOS: -- a tax, isn't it?

DAVIS: Actually, it's not. Because what will happen in the future, especially if you're on the liberal Democratic side of the equation, it is always easy to say -- it's hard to tax people. It's not hard to tax companies. After Justice Roberts has pumped up the taxing clause, I can imagine a future Democratic administration saying let's scrap the corporate tax code, announce we'll have a corporate tax code that says we're going to have a 10 percent rate for companies who don't outsource and a 35 percent rate for companies that do. And you think of all kinds of examples.

(CROSSTALK)

DAVIS: That's the point. It would pass, and it would be an incredible intervention in the free market economy of this economy. So I think this idea that somehow Chief Justice Roberts has said we're going to cut down the Commerce Clause, the reality is -- there's a reason these mandates don't tend to happen (ph).

WILL: Most conservatives are much more frightened of an unlimited Commerce Clause than they are of a somewhat theoretically expanded taxing power. Just to give you one example, if this had been called a tax during the congressional debate on Obamacare, it would have fallen five or more Senate votes short of passage. Ben Nelson, Mary Landrieu and a whole bunch of others would not have passed it.

DAVIS: Well, maybe, George. But I think the problem is, again, let's go back to the outsource example. I'm with George Stephanopoulos here. It will always be easy for Congress to go after certain industries and to distort the market by saying something that previously the court has not said.

You know, we have tax credits, but we have always had a principle of equal taxation. We have had a principle that companies pay a certain rate, individuals pay a certain rate. Well, now we're told that if the government dresses it up A principle that individuals pay if government dresses it up in terms of encouraging or dis-incenting certain conduct--

MORAN: They do that all the time. They tax gas guzzlers, they tax liquor, they tax alcohol, they tax tobacco. The tax code is used to shape behavior.

DAVIS: Stronger power now than it was before.

MORAN: Yes, it is, but this court will limit that.

DAVIS: Well, we don't necessarily know that.

STEPHANOPOULOS: And Keith, are you worried about the tax argument in the election? Now that Chief Justice Roberts has said firmly this is a tax. You already see the Republicans advertising on it.

OLBERMANN: Again, I think it's got to be a concern for the president that wasn't there before this terminology was used. But this was already such a huge issue in terms of this divide between people who are opposed to the Obamacare concept and yet support each aspect of it. It was already such a hot-button issue that had very little to do with the facts that I don't think this is going to be muddied further.

(CROSSTALK)

STEPHANOPOULOS: Is there anything, though, that the president needed -- to Artur's point about independent voters who have been skeptical of the law? Can he now use this?

OLBERMANN: Well, he can now point out that it did get the imprimatur of the Supreme Court, that's the easiest thing for people who are not in this the way we are, to understand. In addition, Governor Romney is now not only running against a program very similar -- everybody would have to admit it -- at least very similar to the one he engineered in Massachusetts. He's not only doing that, but he also has to say that he is opposed to the decision of somebody who was, until this week, perceived as a supremely -- no pun intended -- conservative chief justice. That can't be a win for him. He has two now insurmountable or nearly insurmountable problems when he only had one when the week began.

WILL: I think this probably helps Mitt Romney for three reasons. You have already seen him argue that to remove Obamacare, you have to remove Obama. That's key. Second, he said this is now -- we have a president who has imposed a substantial tax on the middle class in violation of his promises. But most important, the Romney campaign has been so far pretty much a one-trick pony -- the economy, the economy, the economy. This gives him an added repertoire to talk about.

(CROSSTALK)

BRAZILE: I don't think it helps Mitt Romney at all. Because, Keith is right, this was one of his signature issues as a governor in 2006 when he signed this into law in Massachusetts. Obamacare is Romneycare at a federal level. If it's a tax or a penalty in Massachusetts, well, it's a tax or a penalty, because the IRS, if you fail to obtain -- opt out of health insurance, then you'll be penalized. Look, tax is one of those -- the word tax is something politicians from both sides try to avoid. So maybe we should call it a penalty, call it something else.

STEPHANOPOULOS: You can't anymore, though.

(LAUGHTER)

(CROSSTALK)

BRAZILE: Don't tax me, don't tax you, tax that man behind the tree.

(CROSSTALK)

DAVIS: Before we get to the politics of it, here's the policy irony of all this. Defenders of this law are celebrating a victory on the mandate, which by their own estimate might affect 1 percent of the population. They're glossing over the ruling a few days ago which wipes out the Medicaid provisions. Here's where that's important -- 50 percent of the number of the reduction of the uninsured, the number that the administration says will be the new rate of the uninsured after this, 50 percent of that reduction would come from expanding Medicaid, making the states have to cover the newly expanded class, while the Supreme Court stripped that power away.

So, I have to say, there's a certain part of hypocrisy -

MORAN: But this is a crucial point. A law that is this big and this complex is going to require the confidence and the cooperation of the American people and the states. If you have a political agenda of massive resistance to it, which is what we're about to get, it will not work.

(CROSSTALK)

STEPHANOPOULOS: Let me say it works both ways.

DAVIS: A lot of people know, a lot of low-income people who believe, because of all the political arguments being spend them the last week, well, they think they've got coverage now. They're going to find that if they live in Alabama, Mississippi, Louisiana, where their governors turn it down, they're not insured. Three years from now, they'll have less confidence in government.

WILL: And many will turn it down. Mr. Lew, a few months, said few will do this, turn it down. You're a governor and you're facing your state universities being pruned all across the board, you got a choice, do I expand Medicare, Medicaid rather, or do I protect my public universities? I think more governors are going to resist this.

STEPHANOPOULOS: You guys point out the resistance, Keith. I want to bring to you, the flip side, all of those popular provisions. Jack Lew and Vicki Kennedy talked about it. I think make it very difficult to see an actual repeal take hold even if Mitt Romney wins.

KEITH OLBERMANN: That's a very optimistic point of view. I think there's a lot to it. I think also --

UNIDENTIFIED MALE: You don't agree?

OLBERMANN: Well, I'm not sure because it's politics, I tend to be a little cynical about it. People will -- against their own interests, against the interests of the people in their states, as we've been discussing here, these governors will turn this money down even though it is 100 percent federal expenditure to begin with, and then a 90 percent federal expenditure. They'll still turn it down for the political victory.

WILL: I'm going to give you another focus of resistance. The chief justice said this is a tax not a penalty, because it's not sufficiently punitive. It's not sufficiently punitive because it's still a smart move to pay the tax, penalty, rather than the much more expensive decision of buying health care.

Therefore, Congress may soon find that it has to increase the -- that word again -- tax, to change this behavior and I don't see them doing that.

DAVIS: Isn't this more sticker shock? Again, four years ago, we heard that if you pass this legislation, premiums would go down. They've gone up and they're projected to go up 5 percent each year for the next seven years.

We heard two years ago, if you pass this legislation. the ranks of insured will disappear. Because these governors and many of these are going to turn down the Medicaid money, that's not going to happen. And we heard that long term this was going to end up reducing the deficit, no one believes that anymore.

BRAZILE: It will increase the deficit by $230 billion and full implementation will reduce the deficit over a ten-year period, because look, we only implemented just a few portions of the law. Many small business owners, like myself -- I mean, when we're able to go into the exchange, the marketplace, to find more affordable insurance for our employees, that's also going to bend down the cost of health care.

So, we're just looking at a few, what I call very important and very popular pieces that have been implemented. But let's look at it when the implementation happens in 2014.

MORAN: And there's something that better than nothing. The Democrats can stand up now and say never again, under this law, will an insurance company be able to deny you or your loved one coverage for pre-existing conditions, or cut you off because you're too sick. They were against it and they don't have a plan to fix it.

OLBERMANN: And it speaks to something fundamental about the nature of any government. We all agree, conservative, liberal, everybody in between, that the primary function of any government is to protect its citizens. We usually think about this in terms of the Department of Defense.

It now becomes, as the world situation becomes more secure, in many respects more secure the primary part of that is what happens in hospitals? If you've ever spent a lot of time in hospitals, with people and talk to people in waiting times as I did when my dad was sick for seven months in the surgical ICU, I saw everybody in that hospital. I saw patients, I saw families trying to decide whether or not they could afford he same care that my dad as a vet got for $800.

And anything that moves the ball towards this primary role of our government protecting its citizens will be viewed in a generic sense and in a general sense, as a positive thing. And those who stand against it will probably suffer if not in the short term but the long term.

STEPHANOPOULOS: I want to move on to another point right here, before we go on to some other issues. In the interest of fairness, we were pretty tough, not everyone here on our roundtable, on Donald Verrilli, the solicitor general, after the oral arguments.

He clearly took it heart. Watch this at the Columbia Law School commencement.

(BEGIN VIDEO CLIP)

DONALD VERRILLI, U.S. SOLICITOR GENERAL: Let me just say on that point, that if people say that there's no such thing as bad publicity, have no idea what they're talking about. There is definitely bad publicity -- being on the wrong end of a Jon Stewart monologue is bad publicity, especially when you're the solicitor general.

(END VIDEO CLIP)

UNIDENTIFIED MALE: Or Keith monologue.

STEPHANOPOULOS: George Will, in the end, Chief Justice Roberts took the lifeline that Donald Verrilli gave him.

WILL: Yes, he did. It's a lifetime that was extended a long time ago Harlan Stone, to Frances Perkins. They were trying to figure out, in late December 1934, how to fund Social Security and to make it constitutional. At that tea held Wednesday afternoon in Stone's house, he leaned over to Frances Perkins and whispered in her ear, "It's the federal taxing power."

(LAUGHTER)

WILL: Before leaving this subject, though, while we're in the midst of this liberal celebration of John Roberts, let me say the following then: prophecy is optional folly but I'm going to commit it.

One year from right now, after the next term of the Supreme Court, we are going to be talking about the Roberts' court having overturned a racial preferential system in Texas -- admission at a University of Texas, across their entire system, overturning Section V of the Voting Rights Act of 1964 as anachronistic infringement of American federalism, and overturning and further deregulating American politics in the spirit of that wonderful decision Citizens United.

STEPHANOPOULOS: You agree with that?

MORAN: I do. He's playing the long game here. Those are the issues that he personally as a justice cares about. When issues of affirmative action and racial preferences come up, you hear John Roberts get an edge in his voice.

(CROSSTALK)

WILL: The sort of business of divvying us up by race.

BRAZILE: Before this week, his legacy was Citizens United.

OLBERMANN: Yes.

BRAZILE: And I will always take a dim view of Justice Roberts. But this is one progressive that's not there.

DAVIS: Let me slip in here for a moment, I'm not as confident, Terry, as you and George are on what John Roberts is going to do with any of these cases for a very simple reason. John Roberts exposed this week that he's very attentive to elite public opinion in Washington, D.C. and the attentiveness to elite public opinion is going to pull him up on affirmative action the way it did Sandra Day O'Connor. It's going to constrain him on the Voting Rights Act.

The reality is, we don't know, and I guess but we should know because these guys and ladies are supposed to be reading opinions and listening to the arguments and being independents.

But the reality is for conservatives this week, underscores a point, conservatives are not going to prosper putting their confidence in courts. Conservatives have to put their confidence in grassroots and the public and in winning --

STEPHANOPOULOS: I want to weigh in here. Because I think the answer to you comes from John Roberts himself in his senior thesis about Daniel Webster quoted by Charles Lane where he said that the man of character did not fight in the thick of political battles but rather raised himself above the conflicts and still through dispassionate compromise. That's the value that he showed. He was acting on this week.

George, I want to add one more piece to your litany, what about gay marriage? I wonder if Justice Kennedy sticking with the conservatives this time around on health care means he will free himself up to approve gay marriage?

WILL: It could be. Justice Kennedy, I think, is much more understood. Because he's sometimes there and sometimes there, people say he's somehow squishy or unprincipled. I think he's driven in both directions by a constant compass and that is he's a libertarian. And the libertarian dimension of him may cause him to be the fifth vote, it won't be sixth, the fifth vote for gay marriage.

DAVIS: Underscoring the point, conservatives are wrong to depend on courts. You've got to go to public opinion when the argument is on public opinion, which is happening by the way in 36 states on gay marriage and it's happening by the way in the context of health care. The argument of public discourse is being won by conservatives.

STEPHANOPOULOS: And I want to get one other issue before we go, and that was this outsourcing debate that we referenced already. Both sides advertising on it right now in the battleground states.

(BEGIN VIDEO CLIPS)

NARRATOR: Romney's companies were pioneers in shipping U.S. jobs overseas, investing in firms that specialized in relocating jobs done by American workers to new facilities in low-wage countries, like China and India.

Does Iowa really want an outsourcer-in-chief in the White House?

NARRATOR: Barack Obama's attacks against Mitt Romney, they're just not true. But that's Barack Obama. He also attacked Hillary Clinton with vicious lies.

HILLARY CLINTON, THEN-PRESIDENTIAL CANDIDATE: So shame on you Barack Obama.

(END VIDEO CLIPS)

STEPHANOPOULOS: Not the last time we're going to see that.

And Keith, Democrats have been definitely making headway in this argument. You see that in the polling, but Romney is fighting back hard. And I want to quote -- Factcheck.org has weighed in and said they found no evidence that Bain shipped jobs overseas while Romney was in charge.

OLBERMANN: Well, we would of course have a much cleaner and more enjoyable political system if Factcheck.org were in charge of everybody's campaign, but it's not likely to happen.

I'm going to read a tweet from an unusual source this morning that may say something about all of this. Mitt Romney last week, "tough o for Obama, Chicago pros will be hard to beat unless he drops old friends from team and hires some real pros. Doubtful." I'm quoting Rupert Murdoch. Which is by the way, it's rather unusual for me.

STEPHANOPOULOS: What was that about? What precipitated that?

OLBERMANN: If you read his tweets, you'd know there's no telling what precipitates his tweets. But it speaks to a perception. And I don't know how far it is, I'm not a business analyst. I don't know if Mr. Romney did good things at Bain Capital. But I do know that this is the wrong time to be running as a businessman. It's become something of a dirty word.

MORAN: This kind of businessman in particular. It speaks to a deeper anxiety out there. One of the things the Obama campaign is trying to do is put the entire era of hyperfinance that we have lived through on trial. And a question that Samuel Huntington, the late Samuel Huntington asked, where are the loyalties of the people at the top of American capitalism today? Are their commitments to the local communities or to their counterparts in Germany and Hong Kong and elsewhere? And that is a real question.

(CROSSTALK)

STEPHANOPOULOS: Thirty seconds left.

WILL: Peter Hart, a very wise and seasoned Democratic poll taker says if you go back to every election since the Second World War, starting with Truman, with the exception of Nixon, the winner in every election is the most likable. So the question is not whether the outsourcing is valid, is good economics, the question is, does it make Mr. Romney less than approachable and friendly?

STEPHANOPOULOS: And that's a big challenge coming up. We're going to talk about it more in coming weeks. Thank you all, that was a fantastic roundtable.