a penalty, not a tax. >> the law is clear. it's called a penalty. >> the massive so-called tax increase they're talking about is the freeloader penalty. >> people who can buy health insurance should take responsibility to do so. >> i'm saying it was set up as a penalty for people who choose not to buy insurance. >> it's a penalty. >> whatever you call it a mandate or a tax, it's a penalty. >> in case you missed it, it's a penalty and not a tax. that's what's being said, right? as for the republican side, any time is tax time. >> it's a tax increase. it's a massive tax increase on the middle class. >> that's florida senator marco rubio on saturday and the beat goes on. >> this law is a tax. >> obama care is the biggest tax increase in american history. >> the government could decide that we're going to tax you if you don't eat broccoli on tuesday. >> the affordable care act is a tax. it is the largest tax in america's history. >> middle tax increase. >> it's the largest tax increase on the middle class in history. >> obama care raises taxes on the american people. >> enough to make your head spin, right? keeping them honest. when republicans say it's a tax on people who choose not to buy health insurance, they are absolutely right. the provisions for it are written into the tax law. section 5000-a of the internal revenue code, those provisions are enforced by the irs. as chief justice john roberts wrote in his opinion, "the only effect of the individual mandate is to raise taxes on those who do not do so, and thus the law may be upheld as a tax." sounds pretty clear, doesn't it? however, to call it as you just heard the biggest tax increase in history is just factually wrong. it is definitely a tax. both in the eyes of the supreme court and in the eyes of the republican party. but over at romney's campaign headquarters, it looks like someone forgot to read the memo. >> the governor does not believe the mandate is a tax, that's what you're saying? >> the governor believes that what we put in place in massachusetts was a penalty and he disagrees with the court's ruling that the mandate was a tax. but again -- >> so he agrees with the president, but he agrees with the president that it is not -- and he believes that you shouldn't call the tax penalty a tax, you should call it a penalty or a fee or a fine? >> that's correct. >> that's correct. mitt romney and president obama are on the same page. though in fairness it would be hard for the romney campaign to say otherwise given that mr. romney is on record, on tape in fact defending the individual mandate in the reform plan that he signed as governor of massachusetts. and crucially, crucially calling it a penalty and not a tax. whatever you call the mandate, new cnn opinion research polling shows that people are really split on this, folks, 50-49 on this ruling. they are no less divided on what to do next about it. 52% favor all or most of what's in the law. 47% oppose all or most of what's in the law. yet in the very same polling, 51% believe that congress should repeal the whole thing. we'll talk a bit in a moment about the politics of repealing the health care act as well as the tricky but by no means impossible mechanics of it. first, tax or penalty? joining us now, ari fleischer, cnn political contributor and former white house press secretary for george w. bush. all, bill burton, senior strategist for the top pro-obama super pac and senior legal analyst for cnn jeffrey toobin. jeff, let me begin with you. it's a simple question but not a simple answer. tax or penalty? >> john roberts' opinion said that this penalty, tax, whatever you want to call it, this punishment, this payment, was justified under the taxing power of the constitution. that was why he approved the whole plan. that's what he said. what a bunch of politicians want to call it is the fight we're having now. >> to be really clear, if you parse the opinion, it suggests that those who don't go out and get the insurance under the new law will be punished with a tax. >> correct. that's exactly what the opinion holds. it's not a lot of people. if massachusetts is the example we're talking about, it's about 1% of the population refused to get health insurance and can afford it, those people will be punished under this law and chief justice roberts' opinion says the payment that they have to make is a tax. >> so ari fleischer, to you then. why is the senior adviser to mitt romney saying this is not a tax? it seems like things are a bit upside down right now. >> i checked with the romney campaign today and i think the answer is actually very straightforward. mitt romney is being consistent on this. in massachusetts where they had a provision that was roughly similar to that, it was called a penalty. massachusetts doesn't have the united states supreme court, which actually is a higher authority of what the federal law is. so mitt romney is being consistent in calling it a penalty just as he did in massachusetts. president obama, on the other hand, sold it to congress as a penalty and then instructed his staff to go to the supreme court and call it a tax, hence a switch at the supreme court to save the legislation. frankly, actually, if on the federal level it's not a tax, it's a law, it would have been struck down. i think what you have here is the president really trying to have it both ways and succeeding. >> bill burton, jump in on this if you would. regardless of what the law actually says, there is a lot of talk out there and sometimes it sticks rightly or wrongly and the word tax is toxic. >> if you back up and take a look at this, mitt romney and president obama have the exact same position on whether this is a penalty or a tax. when the american people are choosing between these two candidates when it comes down to this issue, there's not a difference. they agree it's a penalty. the people who are trying to freeload on the system and make all of us pay for their insurance, ought to be penalized. that's what the president did in his plan. that's where this debate is. new, the fact that there's this muddle of a message in the republican groups versus the republican national committee versus what romney and his campaign are saying, i think that's a message confusion issue they have on their side. when you just distill it down to who this race is between, president obama and governor romney, they're in the same place on this issue. >> ari, do you think there's any concern if this battle goes much further and republicans decide to really beat the tax over the american voters' head and that the american voter will get tired of this? it's pretty arcane, it's real hard to understand it, no matter how much cable news you watch. they might just become disenchanted with the whole thing overall. >> i think if you take a look at most of the polling for the affordable care act, most americans are against it. they are against it because they don't think it will bring prices down but add to the cost of their insurance so now they're told if you don't get it, it's a tax increase. it's a pile upon pile upon reasons american people don't like it. that's one of the pieces of the pile. the biggest problem is it will raise insurance cost for most americans and make health care less affordable and not affordable. that's the heart of the whole problem with obama care and trying to run health care from the federal government. >> bill, i want you to jump in. i want to talk about a new cnn poll that has mitt romney eight points ahead of president obama in 15 battleground states. numbers are 51 to 43 if i'm looking at them correctly. the president has a slight lead nationally 49% to 46%. does health care weigh in heavily to these numbers or what do you make of them? >> i think this is one poll. there's been a lot of polls and most polls show in the swing states the president is doing better. i think the fact that cnn included states like indiana and missouri and arizona, which are probably not as competitive as some other states, lends itself to numbers being a little more favorable for mitt romney. i think that mostly the president looks like he's doing a lot better for a lot of folks and despite what even independent observer would consider a bunch of challenging news cycles, the president's numbers have been remarkably stable. >> those are bad numbers in the swing states. those are critical states. why do you think he didn't do well? >> if you add in states that are swing states versus the states that will decide the election, the picture will look worse. >> that's not what i asked you, i didn't ask you that. i asked you why you don't think he's doing very well in those 15 swing states, the battleground states. >> i think the president is actually doing very well in swing states especially if you look -- >> he's lagging by eight points. that's outside of the margin. you cannot spin that, bill. >> actually, this isn't spin. this is just about the polls. you know, i think there's going to be polls that go up and down throughout this election cycle. i think the president's numbers have actually been pretty stable despite some challenging news cycles and it will be interesting to see how american people react to the fact the supreme court has made a subtle decision on health care and whether or not people are just ready to move on from that debate or keep having it. >> ari, do you think that's changed since the opinion and flurry of activity on the news? >> there can be a tendency when the supreme court rules for it to give a boost on whichever way it rules but in this case economy, jobs, health care, hurts jobs and in that sense obama care hurts jobs. >> we're not even a week out from the opinion so regardless of how you look at it you may bask in the afterglow or afterburn of the opinion. nice to talk to all three of you. >> i'm enjoying the afterglow. >> thanks all three of you. let us know what you think. we're on facebook and you can follow the program on twitter. we mentioned the slim majority of people that want the entire health care law repealed. up next, how would that happen? we'll let you know. president obama may face this even if he's re-elected. if republicans take control this senate this fall, there are mechanics you need to know about. mitt romney is on vacation with his family today in new hampshire possibly talking more hot dogs than health care but he certainly made no secret that repealing president obama's signature achievement would be his first priority in the white house. . >> what the court did not do on its last day in session, i will do on my first day if elected president of the united states and that is i will act to repeal obama care. >> the question is how would that work? also, how might republican lawmakers repeal or even gut that law if president obama is re-elected? senior congressional correspondent dana bash has been doing some digging on that. and has some answers for us. and also with us senior political analyst david gergen. dana, let me begin with you. we're hearing a lot about the term reconciliation and the process it would take to rip apart this law after this election. can you break down the mechanics in this in simple terms? >> i can try. reconciliation is a process that both parties have used allowing a piece of legislation in the senate to be filibuster proof so it means you can get it through with a 51 vote majority, a simple majority instead of 60 votes, which you effectively almost always need for a legislation. the legislation has to have a tax and spend component. what republicans in the senate i talked to say they are pretty sure that large parts of the health care law can be repealed with a 51-vote majority through the reconciliation process. the issue is getting that 51-vote majority for republicans and that's why they have stepped it up in making the case on the campaign trail in key senate races that voters should vote for republicans for a lot of reasons but primarily they're going to really focus on the idea they need that 51-vote majority in order to repeal health care. this is a very, very important point. the only way they can do this is a clean sweep. they can't do that if there's a democrat president obama in the hospital and he'll veto it and they don't have votes to override that. >> you have to have the trifecta to make that plan work. if it sounds awfully familiar, it should. back in 2010, that's exactly how obama care went through in the first place. david gergen, let me turn to you. if i recall correctly, and it hasn't been that long, there was an uproar over reconciliation on the republican side. so how can they effectively come back and do the same thing they railed against just two years ago? >> you have seen that process a lot. they do intend to use the reconciliation process. if mitt romney is elected and if they have majority in the senate not only to get health care repealed but they intend to use reconciliation in order to extend a bush tax cuts and make the kind of spending cuts that they want to do. i think they see that. reconciliation is a major weapon. if they can grab control of the senate. what's interesting now is how republicans, conservatives, are targeting senate races to see if they can pull this off using health care as that weapon. mitt romney's team said this is a penalty and not a tax. at the state level there are a number of races where this could make a difference and might help republicans pick up some seats. >> dana, talk about that. i know you have been working your gop sources who say things like any day that you are not talking health care is a day wasted. >> that's exactly what a top republican source told me the big wigs in washington have told the senate republican candidates. you have to keep talking about this. here's the irony here. republicans are very upset that the policy that they so disdain was upheld by the supreme court. but when it comes to politics, it's a whole different ball game. they are elated because they still have something to run against that they think is very powerful and that of course is this health care law. they really believe this fires up the republican base. it does so for the democrats as well. they are looking at numbers that we actually saw in our poll today independent voters. i'll say to you, 55% of independent voters oppose the crux of the law, which is the government mandate for health insurance and 59% of independent voters believe the health insurance mandate is a tax and you were talking about this in the segment beforehand but this is why you hear republicans like marco rubio saying this will be a tax on middle class voters. they are trying to make the connection between independent voters specifically who say it's a tax, wait a minute, that means me. >> the poll numbers aside and they are definitely strong, there's another poll out there that's equally as strong that congress is at almost an all-time low. all-time low approval rating back in february around 10%. they climbed to about 17% approval. david, maybe jump in on this with me and tell me if this is a winning strategy to go after this so tenaciously and try to beat this issue up heading into the election. >> well, i do think that republicans are right in believing this mobilized their base. the tea partiers were getting a little complacent. this will get them out there. this is one of their founding issues. so they've got an opportunity. there are chunks of the country, however, that mitt romney also needs to appeal to who think we ought to move on and where he might do that is on the numbers coming out friday on the unemployment. when that jobs number comes out it will be just as important, in fact more important than most americans than the health care bill, which way is that number moving. i think the romney people hope over time that they can run a double barreled campaign on jobs and on health care. whether they'll succeed or not, they're running against a formidable candidate, and a nimble candidate, barack obama. >> if i can just add, the point you made is what we're hearing from democrats from the white house to capitol hill. republicans are fighting yesterday's battle and that what we need -- what they need people to hear from washington is talk about jobs. >> and the beat goes on. dana bash, david gergen, thanks to you both. appreciate it. coming up next, the fallout to our exclusive report on friday. the purported e-mails from penn state officials about jerry sandusky. what potential role did joe paterno play in not reporting sandusky to the police. we're keeping them honest. emily's just starting out... and on a budget. like a ramen noodle- every-night budget. she thought allstate car insurance was out of her reach. until she heard about the value plan. see how much you could save with allstate. are you in good hands? millions of people in the dark in the midst of a heat wave. when air conditioning is a necessity and not a luxury. it's more than just hot, it's deadly. we'll have that and much more when "360" continues. fallout tonight to the exclusive story that we reported on friday. purported e-mails exchanged between penn state officials in 2001 about jerry sandusky's behavior. specifically sandusky's sexual encounter with a boy in a locker room shower. did penn state officials cover up that incident by not reporting sandusky to the proper authorities? there is one indisputable fact. after that 2001 incident, jerry sandusky went on to sexually abuse at least four more boys. keeping them honest, the e-mails suggest that coach joe paterno may have played a role in the university's decision not to report sandusky to the authorities. in one e-mail exchange penn state vice president gary schultz wrote to athletic director tim curley about a three-part plan to talk with the subject, contact the charitable organization and the department of welfare. but the next day curley responded saying he changed his mind. after giving it more thought and talking it over with joe yesterday, i am uncomfortable with what we agreed were the next steps. i am having trouble with going to everyone but the person involved. our susan candiotti broke this story exclusively on friday. susan joins us now. these are seemingly damning implications, susan. what are the implications for joe paterno at this point? >> that's what everyone wants to know of course. until now he said publicly and he testified before a grand jury although he was never interviewed by penn state university about all of this. he said that as soon as mcqueary came to him, that he went straight to his boss and told him what mcqueary had said. now it appears that joe paterno had another conversation about this two weeks after that with the athletic director tim curley, at least according to this alleged e-mail. it suggests or raises the question, what did he say? >> what happened in that conversation? >> that's right. and did he now, therefore, play a role in the decision not to contact child welfare? well now the attorneys for the paterno family say absolutely not. that joe paterno who we can't talk to now obviously he passed away in january, that he never interfered with this investigation and tonight the family is calling on the director looking into the penn state investigation, the former fbi director, to release all of the e-mails and asking the pennsylvania attorney general's office to release all of the e-mails. ashleigh, it's doubtful that is going to happen certainly before all those investigations are complete. they want to see the full context. >> apart from the conversation about what may or may not have transpired between curley or paterno and that may or may not have changed the direction of these officials, do we know anything more about what the penn state officials may have done post-this 2001 incident to change the direction on t