Tolbert: Why Cotton’s Latest Ad Is Not ‘False’

Get ready for a long campaign season.

The general election is over a year away and both Sen. Mark Pryor and challenger Cong. Tom Cotton are taking to the airwaves.

The two messages you will hear over and over are (1) From Cotton: Pryor ♥ Obama/ObamaCare and (2) From Pryor: Cotton ♥ the Tea Party.

They are both correct, but the volume will get turned up loud as both seek to find new and creative ways to repeat this basic message.

The Pryor campaign is currently having a bit of a whiny fit over the way Cotton expressed this basic message in his latest ad called “Good for the Gander.” As Talk Business reports, Team Pryor feels that the ad is a “falsehood” that has been “fully debunked and discredited” and has huffily called for the ad to be pulled from the airwaves.  The portion of the ad they seem to take issue with states,  “Mark Pryor cast the deciding vote to make you live under ObamaCare, but Pryor votes himself and everyone in Congress special subsidies so they are protected from ObamaCare.”

Let’s rewind and look at what happened.

You will recall that the Affordable Care Act was passed in 2010 without a vote to spare and even a bit of creative parliamentary maneuvering.  During this debate, Republicans did everything in their power to stop the law just as Democrats did everything in their power to pass it.  One such point was made by Iowa Sen. Charles Grassley, who said that if Democrats like ObamaCare so much they should require themselves and their staff to be subjected to it.  Democrats said “fine” and put Grassley’s amendment in the law that was passed.

This portion of the law is in the PPACA Section 1312 (page 65) which discusses the state level health insurance exchanges.  Section 1312(d)(3)(D) states the following…

MEMBERS OF CONGRESS IN THE EXCHANGE.— (i) REQUIREMENT.—Notwithstanding any other provision of law, after the effective date of this subtitle, the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are— (I) created under this Act (or an amendment made by this Act); or (II) offered through an Exchange established under this Act (or an amendment made by this Act). (ii) DEFINITIONS.—In this section: (I) MEMBER OF CONGRESS.—The term ‘‘Member of Congress’’ means any member of the House of Representatives or the Senate. (II) CONGRESSIONAL STAFF.—The term ‘‘congressional staff’’ means all full-time and part- time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC.

Therefore, both the plain language and legislative intent of this law is to specifically require members of Congress and their staffs to have to buy insurance in the exchange.  Democrats – Sen. Pryor included – accepted this concession in order to get the law passed and even used this as a talking point at the time to try to sell it to the American people.

Fast forward to 2013 when ObamaCare is less theoretical in terms of talking points and more reality of what is actually going to happen.

All of a sudden, Congress does not think this requirement is such a great idea, often pointing specifically to how it will be difficult on their staff members.  The point that they correctly make is that this provision treats them and their staff differently from all other federal employees which have employee-provided health insurance.

But whether fair or not, this was a provision in the actual PPACA added as a concession to get the law narrowly passed.  Since it is nearly impossible to pass much of anything through a divided Congress right now, President Obama did what he normally does and did an end run around them with administrative rules.

The Office of Personnel Management created a special rule that allows the funds that were being spent on employer-provided federal heath insurance to be used as a subsidy for members of Congress and their staffs to purchase health insurance through the exchanges as the PPACA requires.  This is the “special subsidy” that the ad is referring to.

The vote that the ad refers to is Senate Vote 211 on 9/30/13 which failed on party lines with Pryor voting with the Democrats. His vote was against an amendment passed by the House of Representatives that would have removed this OPM provision.

Therefore, Pryor voted to keep this special subsidy.

In crying foul, the Pryor campaign is pointing to a PolitiFact article that pronounces the Cotton ad as “false.”  Their basis for this rating is two-fold.

First, they contend that Sen. Ben Nelson of Nebraska was the “deciding vote” for ObamaCare, not Pryor, as Nelson was the last holdout in the Senate to agree to vote for ObamaCare.  You probably recall Nelson’s “Cornhusker Kickback“ in exchange for his vote.  This is sort of a strange position as the law passed the Senate with the minimum hurdle of 60 votes.  Since Pryor was 1 of these 60, he is every bit as much of the deciding vote as Nelson and the other 59.

Second, PolitiFact argues that the subsidy is “not so special” (cue my best Houston Nutt impersonation).  They state that ObamaCare Section 1312 “treats lawmakers and congressional workers unlike any other workers in the country.”  Because of this, they basically take the position that the subsidy is only fair.

While I understand their argument, it seems to be based more on the merits of Pryor’s vote, not the truthfulness of Cotton’s claim.  Of course, Cotton’s ad paints Pryor’s vote in the worst possible light in order to continue the theme of tying him to Obama and ObamaCare.

But I have yet to see a political ad that does not paint an opponent in a negative light.

It also seems that whether the subsidy is “not so special” is an opinion, not a factual determination. But to get hyper-technical, Merriam Webster defines “special” in five ways, one of which is “designed for a particular purpose or occasion.”  It seems this subsidy is designed for the particular purpose of assisting members of Congress and their staffs in purchasing insurance under the ObamaCare Section 1312 requirement and therefore meets this definition.

Is it a hard hitting ad?  Absolutely.  But false?  Hardly.