Is Congress Trying to Exempt Itself From Obamacare? The Interesting Details

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Members of Congress are supposedly engaged in "high-level" discussions about exempting themselves and their aides from participating in the Affordable Care Act (i.e. "Obamacare”), according to POLITICO.

Or are they?

The Washington Post’s Ezra Klein says this isn’t the case. But let’s look at both sides of this story.

Here’s what POLITICO reported:

Congressional leaders in both parties are engaged in high-level, confidential talks about exempting lawmakers and Capitol Hill aides from the insurance exchanges they are mandated to join as part of President Barack Obama’s health care overhaul, sources in both parties said.

The talks — which involve Senate Majority Leader Harry Reid (D-Nev.), House Speaker John Boehner (R-Ohio), the Obama administration and other top lawmakers — are extraordinarily sensitive, with both sides acutely aware of the potential for political fallout from giving carve-outs from the hugely controversial law to 535 lawmakers and thousands of their aides. Discussions have stretched out for months, sources said.

[…]

There is concern in some quarters that the provision requiring lawmakers and staffers to join the exchanges, if it isn’t revised, could lead to a “brain drain” on Capitol Hill, as several sources close to the talks put it.

One source told POLITICO: “Everyone has to hold hands on this and jump, or nothing is going to get done."

The reaction to the report has been unpleasant (to say the least).

“If the Republican Party leadership in Congress goes along with this ride, there will need to be a new third party that challenges both the GOP and Democrats,” writes Red State’s Erick Erickson.

“There's a word for this in the English language: ‘Corruption,’” National Review’s Charles C. W. Cooke said in a tweet.

“If congress exempts itself from Obamacare it must give every American the right to have the same exemption. Anything less is an outrage,” Former Speaker of the House Newt Gingrich tweeted.

“And now Washington truly becomes a satiric novel,” NRO’s Jonah Goldberg chimed in.

Enter Ezra Klein.

“There’s no effort to ‘exempt’ Congress from Obamacare. No matter how this shakes out, Congress will have to follow the law, just like everyone else does,” he writes. “Based on conversations I’ve had with a number of the staffs involved in these talks, the actual issue here is far less interesting, and far less explosive, than an exemption.”

See, according to Klein, all this Congressional exemption talk stems from an amendment proposed by Sen. Chuck Grassley (R-Iowa) during the 2010 “Obamacare” debates. The amendment, supposedly designed to back Democrats into an uncomfortable corner, forces members of Congress and their aides into the exchanges. However, instead of balking at the proposal, Democrats lovingly embraced it and it ended up in the final law.

Here’s the amendment as it appears in the health care bill:

The only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are — (I) created under this Act (or an amendment made by this Act); or (II) offered through an Exchange established under this Act (or an amendment made by this Act).

Klein says this is highly unusual.

“Large employers — defined in the law as employers with more than 100 employees — aren’t allowed onto the insurance exchanges until 2017,” he notes, “and only then if a state makes an affirmative decision to let them in.”

“But the federal government is the largest employer in the country. So Grassley’s amendment means that the largest employer in the country is required to put some of its employees — the ones working for Congress — on the exchanges,” he adds. “But the exchanges don’t have any procedures for handling premium contributions for large employers.”

Associated Press.

And this, according to the WaPo’s wonk, is where we run into problems. The amendment was never supposed to pass and was instead supposed to force Democrats into an awkward position. Instead they said, “Okay,” it passed, and now no one knows what to do with it.

“It’s not clear that the federal government has the authority to pay for congressional staffers on the exchanges, the way it pays for them now in the federal benefits program,” he writes.

“The reason is that the Office of Personnel Management — which is the agency that actually manages the federal government’s benefits — hasn’t ruled on their interpretation of the law,” he adds.

In short, the report’s author swears, “no one is discussing ‘exempting’ congressional staffers from Obamacare.”

Rather, he continues, they are “discussing creating some method through which the federal government can keep making its current contribution to the health insurance of congressional staffers.”

But business journalist Megan McArdle says the Klein analysis misses the mark.

“First, this is, in fact, about exempting themselves from Obamacare,” she writes. “This is a provision of Obamacare. It is in the bill. You may think that it shouldn't be in the bill, or that it shouldn't be in the bill in the way that it's written.”

“But -- assuming that these discussions are actually happening -- Congress is considering exempting itself from the one provision of the bill that actually directly affects Congress,” she adds. “As far as they're concerned, this is exempting themselves from Obamacare; the rest of the bill affects Hill staffers only indirectly.”

So who's in right? Well, at this point, it's unclear. It's Klein's sources versus POLITICO's sources.

Of course, there’s this from Speaker John Boehner (R-Ohio):

[blackbirdpie url="https://twitter.com/SpeakerBoehner/statuses/327425340878249984"]

And there's this from the Huffington Post's Sam Stein:

[blackbirdpie url="https://twitter.com/samsteinhp/status/327466497503019009"]

Still, regardless of who is telling the truth, this episode is just another reminder that the health care law is a complex, headache-inducing labyrinth of unintelligible legalese that even Congress can't figure out.

Who’s ready for full implementation in 2014?

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Featured image Getty Images. This post has been updated.