June 29, 2015 | Commentary on Health Care, Obamacare, Health Care Reform

Shed sunshine on ObamaCare's subsidies for Congress

Sen. David Vitter (R-La.) has a simple question: How and why did Congress qualify as a "small business" eligible for special taxpayer subsidies under the Affordable Care Act (ACA)? For anyone in a real small business — private employers who get no such subsidies — the very idea is absurd. But getting a straight answer is as difficult as getting Lois Lerner's IRS emails.

In search of answers, Vitter proposed subpoenaing documents from the District of Columbia Health Benefits Exchange Authority. But his colleagues on the Small Business and Entrepreneurship Committee recently voted (14 to five) to block the effort. They've tried to justify their lack of curiosity by calling the proposed subpoena an unnecessary "distraction" or an invitation to a "protracted" legal fight. But these are rather obviously lame excuses.

Here's the backstory. In enacting the ACA five years ago, lawmakers voted to take themselves out of their existing coverage in the Federal Employee Health Benefits Program (FEHBP) and to enroll themselves and their "official" employees in ObamaCare beginning in 2014. The language — Section 1312(d)(3)(D) — was part of then-Senate Majority Leader Harry Reid's (D-Nev.) manager's amendment to H.R. 3950.

While FEHBP coverage carried a generous federal employer subsidy, the ACA language provides for no special subsidies for Congress or staff participating in the government exchanges. In short, the law neither preserves nor replaces the FEHBP subsidy.

Here's another salient fact. The issue was debated. Before final passage, on March 24, 2010, Sen. Charles Grassley (R-Iowa) offered an amendment to preserve the FEHBP subsidies for members and staff enrolling in the law's exchanges and to require the president and executive branch political appointees to also participate in the government exchange program. The Grassley amendment was defeated 56 to 43, with all Senate Democrats voting against it.

Shortly thereafter, congressional leaders desperately sought a way out of the mess — an "administrative solution" that would give them a special financial cushion without having to cast an embarrassing vote to get the preferential treatment.

Though sympathetic to the plight of Congress, Timothy Jost, professor of law at George Washington University, frankly acknowledged that the language of Section 1312(d) created a compensation problem for members of Congress and staff who would no longer get generous employer-based subsidies for insurance and whose income is too high to take advantage of the statutorily authorized exchange subsidies: "The exchanges are only open to individuals and small employers. No large employers participate in the exchange, at least not yet. There is no provision, therefore for large employers, including the largest — the United States government — to pay for exchange coverage."

Enter the Obama administration. In August 2013, the Office of Personnel Management (OPM) rode to the rescue, declaring it would provide FEHBP subsidies for members and staff enrolled in the exchange.

There was a problem: Neither the ACA nor Chapter 89 of Title V (the law governing the FEHBP) nor any other statute authorizes any FEHBP subsidies to health plans outside of FEHBP. Indeed, OPM staff initially held that they had no such authority. OPM's decision to provide FEHBP subsidies for Congress when Congress no longer had FEHBP coverage was a stunning metaphysical feat, never before attempted in the FEHBP.

OPM also decided to declare Congress and staff eligible for enrollment in the D.C. SHOP (Small Business Health Options Program) exchange, a program reserved for small businesses. The Vitter subpoena was intended to shed light on the interaction between the D.C. exchange and congressional officials in this ludicrous designation of Congress as a "small business." This entire exercise, creating special subsidies for Congress and redefining Congress as a "small business," has been a textbook example of administrative creativity, untrammeled by statutory restraint.

An examination of the relevant statutes reveals that continuing FEHBP subsidies for congressional coverage is both illegal and unfair. Some critics go further. Michael Cannon of the Cato Institute characterizes the special subsidies as a "bribe" to keep Congress from reopening the Affordable Care Act.

The committee rejection of the Vitter subpoena only reinforces the public perception that Congress plays by a different set of rules than those they impose on the rest of Americans. That's fine. Blocking a request for information only raises more questions. Hopefully, the result will be an even deeper probe into the external political pressures that caused OPM staff to reverse their initial judgment on the legitimacy of the special congressional subsidies. Incidentally, it would also be a nice project for an enterprising reporter.

As for Sen. Vitter, he will not win a Capitol Hill popularity contest. That's fine, too. The senator has shown political courage and admirable tenacity in battling an unjust law. He also has a dandy proposal. His legislation would require the president and his political appointees to join members of Congress and staff in enrolling in the ObamaCare health exchanges on the same terms and conditions as all other Americans. He only needs an opportunity to bring it to the Senate floor. The folks back home will be rooting for him.

 - Moffit is a senior fellow in the Heritage Foundation's Center for Health Policy Studies.

About the Author

Robert E. Moffit, Ph.D. Senior Fellow
Center for Health Policy Studies

Originally appeared in The Hill