Lieutenant governor’s race: It’s all about who hates Obamacare more

Hotelier Sue Lowden may want to turn state Sen. Mark Hutchison’s votes on implementing the Affordable Care Act into a campaign trail liability in their fight for the Republican nomination for lieutenant governor, but his campaign isn’t backing away.

Hutchison unveiled his campaign’s first TV ad today, and it is all about how he fought the Affordable Care Act on behalf of Nevada — and for no pay, too!

“Mark Hutchison — selected by Governor [Brian] Sandoval, Mark fought against Obamacare, all the way to the United States Supreme Court,” the ad begins. Of course, that’s not entirely true. Hutchison was originally engaged in 2010 by then-Gov. Jim Gibbons, after Attorney General Catherine Cortez Mastoflatly refused Gibbons’ command to join the league of states suing to have the Affordable Care Act declared unconstitutional. However, when Sandoval defeated Gibbons in a primary and eventually took office in early 2011, Hutchison was reappointed to the task.

“So committed to protecting our constitutional rights, Hutchison too the case for free,” the ad continues. And that’s true. Hutchison later said he spent hundreds of hours on Nevada’s part of the appeal.

“Mark Hutchison: THE leader in Nevada’s fight against Obamacare,” the ad says. “A committed conservative who answered the call and fought for us.”

And — best of all — he won! Hutchison joined the contention from the 26 states suing to overturn the law that the Commerce Clause of the U.S. Constitution doesn’t permit the Congress to force people to buy insurance. And the Supreme Court’s final ruling (in National Federation of Independent Business v. Sebelius) upheld that contention. But while the states may have been successful on that point, they ultimately lost, when the 5-4 majority upheld the right of Congress to pass the Affordable Care Act under the government’s power to tax.

And that’s where Hutchison’s problem emerges, and explains why his campaign selected this topic for his first ad: Later, the anti-Affordable Care Act crusader became a state senator, one who voted for legislation that implemented portions of the act in Nevada.

Lowden has cited three bills in particular: AB 138 (a business tax abatement bill that only extended the benefit if the business complied with the Affordable Care Act, which passed both houses unanimously); AB 425 (a bill to create facilitators to help people sign up for the Affordable Care Act, which passed the Legislature with only a single dissenting vote, Assemblywoman Michele Fiore, R-Las Vegas) and AB 507 (the state budget bill, which contained funds for an expansion of Medicaid under the Affordable Care Act, and which passed the Legislature with only five dissenting votes from conservative Republican lawmakers).

And, not coincidentally, Lowden’s first ad hit Hutchison on the issue of supporting the Affordable Care Act, too.

Beyond the fact that Sandoval and nearly the entire Legislature supported the bills that Lowden has called into question, it may not be too much to suggest that there’s precedent for Hutchison’s seeming shift on the issue, a consistent law of the universe that might actually explain it.

In the 2013 Legislature, Hutchison championed a bill to set up medical marijuana dispensaries in Nevada. It’s not that he supported medical marijuana; in fact, quite the contrary. He said that back in 1998 and 2000, when the matter was on the ballot, he voted against it both times. He allowed that he didn’t think medical marijuana was good public policy. On that, as on the Affordable Care Act, he lost.

But once that happened, and the provision for medical marijuana became part of Nevada’s constitution, Hutchison said he considered its duty (and part of fulfilling his oath of office) to see to it that the wishes of the voters were carried out. And he did. (In fact, his support for the bill helped it overcome critical hurdles.)

Is it really that far a stretch to consider that, once the fight against the constitutionality of the Affordable Care Act was lost, and the act was upheld by the nation’s highest court, that Hutchison would follow his governor and his caucus in moving to implement what the court certified as a constitutional law? Seen in this context, couldn’t his votes be seen as consistent with his professed fealty to the Constitution, and not in abrogation of it?

Yes, there are those who may argue that if you’re against what they call “Obamacare,” then you should always be against it, no matter what the court says. (That’s alien to the American constitutional system, but those people exist.) And there are others — including Lowden — who might say that, even if the Affordable Care Act is constitutional, there’s no reason a conservative should go about implementing the optional portions of the law, as Sandoval and the Legislature did.

But as for supporting the law, Hutchison can — and already has — made a cogent case for himself: “You don’t get to pick and choose” which portions of the constitution you want to follow, Hutchison once told an Assembly committee, on medical marijuana. “I’m in favor of the rule of law.”

Explaining that on the campaign trail, however, is quite another matter, which is why Hutchison’s 30-second ad leaves out the votes that Lowden makes the centerpiece of her ad. These days, nobody can ever afford to say they were against it before they were for it.