April 15, 2016

April 15, 2016 | Commentary on Obamacare, Rule of Law

On ObamaCare, is there one set of rules for Congress and another for citizens?

Members of Congress, congressional staff, and their dependents are now in their third year of receiving health coverage through the Exchange the District of Columbia established for small businesses under the Affordable Care Act. Newly discovered documents illustrate how government officials broke numerous laws to make that happen—laws that apply to you and me, but apparently not to Congress.
 
Documents obtained under the Freedom of Information Act show that unnamed officials who administer benefits for Congress made clearly false statements when they originally applied to have the House and Senate participate in D.C.’s “SHOP” Exchange for 2014. Notably, they claimed the 435-member House had only 45 members and 45 staffers, while the 100-member Senate had only 45 employees total.

Rather than a good-faith clerical error, this was an intentional falsehood, which makes it a crime under both federal and D.C. law. Knowingly making even a single false statement in a matter concerning congressional compensation is punishable by up to five years in prison.
 
Peel away additional layers of this onion, and we find these and other officials likely violated other laws too. Yet they have been protected from prosecution in a way ordinary citizens are not. Why? Because these officials were acting to exempt members of Congress from the costs of the ACA. Here’s why and how.
 
The Federal Employees Health Benefits Program gives federal employees a choice of health plans and pays up to $12,000 of the premium. But the ACA kicked members of Congress and congressional staff out of the FEHBP, and said the only way they can get health benefits is through an Exchange.
 
That presented problems beyond just kicking members of Congress out of their health plans. Those $12,000 premium contributions would be illegal in the Exchanges the ACA created for individuals. Since federal law allows employers to contribute to premiums through SHOP Exchanges, though, certain officials decided Congress would enroll in D.C.’s small-business Exchange.
 
Yet there was a problem with that “solution,” too. The ACA bars businesses with more than 100 employees from participating in SHOP Exchanges. Until this year, D.C. barred businesses with more than 50 employees. When those officials falsely claimed the House and Senate fit under those limits, they did so because they wanted to draw money from the federal Treasury—i.e., a subsidy of up to $12,000 for each member and staffer.
 
Making a materially false or fraudulent statement as part of a claim against the U.S. Treasury is a separate federal crime, as is wire fraud. Ordinary citizens who violate these laws face fines of up to three times the amount drawn from the Treasury and/or up to 20 years in prison. They might also face prosecution for health care fraud (10 years), violating the Sarbanes-Oxley ban on falsifying documents (20 years), conspiracy to commit such offenses (5 years), and other crimes under federal and D.C. law.
 
Newly unearthed documents suggest these officials knew they were violating the law. After the original false statements became public, D.C. dropped the employer-size question from its SHOP Exchange application, even though federal law requires D.C. to verify that participating employers are indeed small businesses. In their applications for 2015, congressional officials nevertheless continued making other false statements, such as claiming that members and staffers have no dependents.
 
It appears that for 2016, congressional officials wanted to avoid any additional opportunities for prosecution. Documents recently obtained from D.C.’s SHOP Exchange show congressional officials reported that the House has 435 members and 6,995 other employees, and the Senate has 4,588 employees total.
 
This long-overdue admission that Congress is not a small business shines a klieg light on the fact that members of Congress and their staffs are receiving health insurance and a subsidy of up to $12,000 each through a program from which federal law categorically bars them. It lays bare that government officials have systematically violated both the ACA and criminal laws to facilitate illegal, taxpayer-funded gifts to members of Congress.
 
Ordinary citizens don’t get to go around lying to the government, drawing money from the federal Treasury, and then using that money to buy gifts for members of Congress. Are government officials exempt from those rules?

John Malcolm is director of the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation and a former deputy assistant attorney general in the Department of Justice’s Criminal Division. Michael Cannon is director of health policy studies at the libertarian Cato Institute.

About the Author

John Malcolm Director, Edwin Meese III Center for Legal and Judicial Studies, and the Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Obamacare, Rule of Law

The piece first appeared in The Hill.