A Further Perspective

Obamacare for Congress?

The Senate Democrats let OPM amend the law.

By 10.3.13

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Nomenklatura, “name people” in Russian, were the privileged class in the Soviet Union who got all the benefits while the rest of the people had to do what was left.

Late Monday evening, the House of Representatives sent a third continuing resolution to the Senate in which they conditioned the continuation of funding on a one-year delay in the Obamacare individual mandate and the reinstatement of Obamacare’s provisions that require the members of Congress and their staff to get their health insurance through the exchanges. In a 54-46 party line vote, their third of the evening, the Senate Democrats rejected that continuing resolution, demonstrating their concurrence in an “Obamacare for thee, but not for me” regime.

The Obama Administration has already delayed the employer mandate for a year, but turned a deaf ear to the suggestion that the individual mandate be delayed too. In addition, the federal Office of Personnel Management has let the members of Congress and their staff off the hook.

In the pre-Obamacare world, members of Congress and their staff could get the same health insurance as other federal employees and a subsidy to help them pay for it as part of their compensation.

The Obamacare law, which the Democrats unanimously supported, changed that. It says, in part, that the “only health plans” that members of Congress and their staff can pick are those that are created by the Obamacare law or offered through an exchange. The federal employees’ health care program is neither, so the effect is to kick them out of that program. The Obamacare law also says that employees who purchase their health insurance through an exchange “will lose the employer contribution (if any) to any health benefits plan offered by the employer.” So, the law doesn’t just kick them out, it threatens to take away their taxpayer-funded subsidy.

The purpose of requiring the members of Congress and their staff to go through the exchanges for their health insurance was to make sure that the Obamacare law, like other laws, applied to the members of Congress just like it did to the American people. That principle remains good today. Last week, Senate Minority Leader Mitch McConnell said that he opposes an “Obamacare carve-out” because, “I don’t think members of Congress ought to be treated any differently in any way from anybody else in America.”

President Obama and others in Congress, including unnamed staffers, disagree and want to continue to provide subsidies to the members of Congress and their staff. They just don’t want to be held accountable for doing so.

So, the federal Office of Personnel Management stepped into the breach after being pushed by the President. It has proposed a rule that would require members of Congress and their staff to purchase their health care coverage through the exchanges and “clarify that the provisions that authorize an employer contribution” for health insurance coverage apply to coverage purchased through the exchanges. In other words, for the purpose of the subsidies, plans purchased by members of Congress and their staff through the exchanges will be treated like the plans other federal employees can get. They all get the employer-provided, taxpayer-funded subsidies; when he questioned Senator Cruz during the latter’s recent filibuster, Senator Durbin said that the subsidies covered as much as 72% of the cost of the premiums.

Maybe OPM’s solution is the right one and the right way to solve what some members of Congress and their staff see as a problem. Maybe it’s neither.

Supporters of extending the subsidies to the members of Congress and their staff talk about the hardship that compliance with the Obamacare law as written will cause them and suggest that there will be a “brain drain” if staffers are forced to purchase health insurance from the exchanges without a subsidy. They also note that many companies subsidize their employees’ purchase of health insurance. Opponents observe that many Americans who don’t work for a member of Congress will have to buy health insurance through an exchange without a subsidy. President Obama, who has postponed the employer mandate but not the individual mandate, doesn’t seem concerned about the hardship for the non-members and non-staffers who don’t get subsidies from their employers.

The merits aside, the whole episode looks like an illustration of public-choice economics. Members of Congress and their staffs, a vocal group that is close to the center of power and has access to the press, are up against those who must comply with the individual mandate and the rest of us taxpayers, who are widely dispersed and lack access to the levers of power. In such cases, the taxpayers get rolled by the interests once they start squealing.

And, why shouldn’t the members of Congress have to live with the laws they impose on the rest of us? They should join us or figure out how to fix things for everyone, not just themselves. OPM’s proposed rule just fixes things for a select few.

Even if continuing to provide the subsidies to members of Congress and their staff is the right way to go, letting OPM do the dirty work is not the right way to do it. It’s not OPM’s job to fix problems in the laws passed by Congress, and Congress shouldn’t hide behind OPM’s skirt.

Instead, Congress should go on record, so that we can see whether its members are willing to be governed by the same laws we are or explain why they shouldn’t. Senator Vitter (R-LA) and Representative Ron DeSantis (R-FL), along with some of their Senate and House colleagues, want to do exactly that. Senator Vitter and several co-sponsors have been trying to add amendments that would reverse OPM’s decision to other bills. But, they have opposition, and not just from usual suspects like Senate Majority Leader Harry Reid and Senator Durbin.

By voting on the Vitter Amendment or another measure like it, the members of Congress can tell us whether Obamacare is for them or just for us. Those who say it’s just for us will show themselves to be not just members of Congress but nomenklatura as well.

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About the Author
Jack Park is an attorney with the Atlanta law firm Strickland Brockington Lewis LLP.