Rich Weinstein is not a reporter. He does not have a blog. Until this week, the fortysomething's five-year old Twitter account had a follower count in the low double digits.
“I’m an investment adviser,” Weinstein tells me from his home near Philadelphia. “I’m a nobody. I’m the guy who lives in his mom’s basement wearing a tinfoil hat.” (He's joking about the mom and the tinfoil.)
He's also behind a series of scoops that could convince the Supreme Court to dismantle part of the Affordable Care Act. Weinstein has absorbed hours upon hours of interviews with Jonathan Gruber, an MIT professor who advised the Massachusetts legislature when it created “Romneycare” and the Congress when it created “Obamacare.” Conservatives had been looking for ways to demonstrate that the wording of the ACA denied insurance subsidies to consumers in states that did not create their own health exchanges. Weinstein found a clip of Gruber suggesting that states that did not create health insurance exchanges risked giving up the ACA's subsidies; it went straight into the King v. Burwell brief, and into a case that's currently headed to the Supreme Court.
A few days ago, Weinstein pulled a short clip from Gruber's year-old appearance at a University of Pennsylvania health care conference. As a crowd murmured with laughter, Gruber explained that the process that created the ACA was, by necessity, obfuscated to pull one over on voters.
“This bill was written in a tortured way to make sure the CBO did not score the mandate as taxes,” said Gruber. “Lack of transparency is a huge political advantage. Call it the stupidity of the America voter, or whatever.”
Weinstein's scoop went around the world in a hurry. American Commitment, a conservative 501(c)(4) founded by Americans for Prosperity veteran Phil Kerpen, published the clip on its YouTube channel. Kerpen promoted it through tweets, which quickly became live coverage of the media outlets discovering Gruber.
The story metastasized when Penn briefly pulled the original video. Jonathan Adler, one of the attorneys in the anti-subsidy cases, was among the people tweeting about the apparent censorship until Penn restored the video. Gruber himself crawled out of view, refusing to comment when reporters asked about his newly discovered argument that the ACA was “designed to dupe a gullible American public.” Even Snopes.com waded in, attempting to debunk the conservative theory that an Ivy League school was trying to hide a damaging gaffe that could hurt the legal case for the ACA.
Weinstein, back at home, was stunned at the reaction. Why did he keep finding Gruber gaffes? Why didn't the press glom onto this stuff first?
“It’s terrifying that the guy in his mom’s basement is finding his stuff, and nobody else is,” he says. “I really do find this disturbing.”
Weinstein dates his accidental citizen journalism back to the end of 2013 and the first run of insurance cancellations or policy changes. He was among the people who got a letter informing him that his old policy did not meet ACA standards.
“When Obama said 'If you like your plan, you can keep your plan, period'—frankly, I believed him,” says Weinstein. “He very often speaks with qualifiers. When he said 'period,' there were no qualifiers. You can understand that when I lost my own plan, and the replacement cost twice as much, I wasn’t happy. So I’m watching the news, and at that time I was thinking: Hey, the administration was not telling people the truth, and the media was doing nothing!”
So Weinstein, new plan in hand, started watching the news. “These people were showing up on the shows, calling themselves architects of the law,” he recalls. “I saw David Cutler, Zeke Emanuel, Jonathan Gruber, people like that. I wondered if these guys had some type of paper trail. So I looked into what Dr. Cutler had said and written, and it was generally all about cost control. After I finished with Cutler, I went to Dr. Gruber. I assume I went through every video, every radio interview, every podcast. Every everything.”
Weinstein dug and dug and eventually discovered the first Gruber quote, known in conservative circles as the “speak-o.” Gruber had been on TV arguing that the case against subsidies in non-exchange states was ludicrous. Yet at a January 2012 symposium, Gruber seemed to be making the conservatives' argument. “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—but your citizens still pay the taxes that support this bill,” said Gruber. “So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country.”
The investment advisor e-mailed this around. Nobody cared. Nobody noticed the clip until after the D.C. circuit ruled 2-1 in favor of plaintiffs who were suing to stop the subsidies. Weinstein clicked around for articles about the decision, and left a comment on The Washington Post's Volokh Conspiracy blog, pointing to the clip. In short order, Ryan Radia of the conservative Competitive Enterprise Institute noticed the clip and promoted it. Within hours, Gruber's “speak-o” had greatly muddied the liberal argument.
“The next day, I woke up and turned on my iPad,” Weinstein recalls. “I did a quick search. You know, 'Gee, if I wonder if anything is out there about this Jonathan Gruber guy?' And the first result was about this video. 'Holy crap, what is going on?' Excuse my language. It just kept getting bigger and bigger. Later that day, a friend told me that Rush Limbaugh was talking about this video. I’m at WaWa, and I'm eating a sandwich in the car, and Limbaugh comes back from commercial and says 'There's more on this Gruber video. The White House is responding.' I’m like, 'What do you mean, the White House is responding?'”
There came a wave of reporters, senators, and wonks arguing that Gruber had mangled the description of congressional intent. They were matched with more clips of Gruber suggesting that, no, really, the subsidies were intended to nudge states into creating exchanges. Gruber, all of a sudden, was getting the sort of vetting previously reserved for high court nominees or Senate candidates. All because somebody actually paid attention to the words he was blabbing at sleepy-looking health care conferences. He wasn't even eavesdropping. He was just...listening.
I wondered if Weinstein shared Gruber's worry that a victory for the King plaintiffs would make health care unaffordable for millions of people. “If they do undo the subsidies, there’ll be a disruption, and the markets will adjust,” he says. “Some states will build their own exchanges. People will say, 'Oh, you’re trying to kill 5 million people,' but I do believe there'll be a solution.”
Before he hangs up, Weinstein asks me to remember two things. One: He doesn't actually have a position on the validity of the anti-subsidy lawsuits. Two: He does not hate Jonathan Gruber.
“Apparently people have been posting his MIT information and bullying him,” he says. “I’ve been telling people to not do that. I don't like that at all. Do not bully him.”