The WasteWatcher: The Staff Blog of Citizens Against Government Waste

A Disappointing Vote but Not Unexpected

The WasteWatcher is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact blog@cagw.org.


Senator David Vitter (R-La.) is on a mission.  He is trying to uncover how Congress became a “small business” for the sole purpose of not having to follow Affordable Care Act (ACA) rules like other Americans.  (ACA is also known as the Patient Protection and Affordable Care Act or ObamaCare.) On Thursday, April 23, in his role as chairman of the Senate Small Business and Entrepreneurship Committee, Senator Vitter called a vote of the committee to subpoena the Washington D.C. Health Benefits Exchange (HBX) for the un-redacted nine pages of applications the U.S. Senate and the U.S. House of Representatives submitted to purchase health insurance benefits as a “small business.” (Note the employers' name are the U.S. House of Representatives and the U.S. Senate with the apparent bold-face lie they only have 45 employees each.) Chairman Vitter said just prior to the vote, “Congress should absolutely not be exempt from living under ObamaCare just like the millions of Americans who don’t get a special taxpayer funded subsidy.  The only way Congress was able to exempt itself from ObamaCare was by creating a loophole and designating itself as a ‘Small Business.’”  He said the vote was, “an opportunity for Members of Congress to publicly stand for government transparency and accountability, taking one step closer to living under ObamaCare – the same as the rest of America, not an elite ruling class. Issuing this subpoena will allow us to find out who is responsible for allowing Congress to receive a special taxpayer-funded subsidy on ObamaCare, so we can fix this – and ultimately, end the special exemption.” There are two ways a subpoena could have been issued.  One was for both the chairman and ranking minority member to approve the subpoena. Ranking Member Jeanne Shaheen (D-N.H.) had already made known she would not support transparency and would vote against the subpoena. The other way to approve a subpoena was for a majority of committee members to support the measure. Since all the Democrats had said they would not support transparency, it was left to the Republicans to carry the day and initially all, but Sen. Rand Paul (R-Ky.), said they would favor the subpoena. The Council for Citizens Against Government Waste supported Sen. Vitter’s efforts and sent a letter to the Republican members on the Committee asking them to vote for the subpoena. When the vote was finally taken a majority of committee members, including five Republicans, did not support transparency and accountability. It will be up to them to explain to their voters why they deserve a special break from ObamaCare while their constituents do not. Here is the vote tally:

Background Many of you already know the background to how Congress got their special exemption but for those that do not, Citizens Against Government Waste wrote about it in an August 9, 2013 blog, “The Fix is In,” and the Heritage Foundation neatly laid it out in its August 2, 2013 backgrounder, “Congress in the ObamaCare Trap: No Easy Escape.” For years, members of Congress and their staff received their health insurance, like all federal employees, via the Federal Employees Health Benefits Program (FEHBP).  Government employees get to pick a plan from a large selection of different insurance policies. Utilizing FEHBP enables government employees to have 75 percent of their premium paid for by the taxpayers, up to a limited dollar amount. FEHBP is overseen by the White House Office of Personnel Management (OPM.) FEHBP was a great healthcare plan, until President Obama's healthcare reform legislation came along. Its supporters declared it would be better then FEHBP. But it did not turn out that way. Here in a nutshell is how Congress got a special exemption from ObamaCare's rules.

  • Sen. Tom Coburn (R-Okla.) offered an amendment during the Senate Health, Education, Labor, and Pensions (HELP) Committee’s mark-up (debate and rewrite) of its healthcare reform bill. It required Congress and staff to participate in ObamaCare as opposed to FEHBP.  The amendment DID NOT include subsidies for members of Congress and all their staff to help pay their insurance premiums.  The amendment was accepted by the committee.
  • Sen. Chuck Grassley (R-Iowa) also offered an amendment during the Senate Finance Committee’s mark-up of its healthcare reform proposal that DID include subsidies to help pay Congress's and their staffs' insurance premiums. This amendment was also accepted.
  • Sen. Harry Reid (D-Nev.), at that time Majority Leader, took the two reform proposals and merged it into one, which became the Affordable Care Act that was signed into law on March 23, 2010. It required Congress and their staff to participate in ObamaCare. The bill DID NOT contain premium subsidies for all of Congress and their staff except for what was provided under the law. Congress had several opportunities to amend the health insurance provision before final passage but did not do it.
  • Because members of Congress and their staff were now required by law to participate in ObamaCare, it meant that only those individuals with household incomes that exceeded 100 percent but did not exceed 400 percent of the federal poverty level (FPL) were entitled to getting financial assistance in paying their insurance premiums. Currently, the FPL are $11,770 (100%) and $47,080 (400%) for a single person; $24,250 (100%) and $97,000 (400%) for a family of four. Members of Congress make on average $174,000 a year and, while salaries vary for congressional employees, top level staff can make over $100,000.
  • With the forced ObamaCare enrollment date of January 2014 fast approaching, members of Congress and hundreds of staff were panicking as they realized they would be paying the full freight of their health insurance premiums, just as millions of Americans are required to do every month. They could have fixed this quandary legislatively before the January deadline but the optics of passing a law to give them a special carve-out under ObamaCare would have looked bad, so they did it surreptitiously. Leadership from both sides of the political aisle worked closely with President Obama to get it done.
  • OPM released a proposed regulation on August 8, 2013. Essentially, OPM said since Congress’s health insurance plan looked like an ObamaCare exchange, taxpayer-funded subsidies could be utilized just as they had been under FEHBP.  Of course, nothing in the law allowed OPM to do this.
  • OPM received nearly 60,000 comments to their proposed rule, no doubt with thousands critical of their proposed regulation. On September 30, 2013, OPM released a new and final rule. Under this rule, members of Congress and their staff had to purchase their insurance via an appropriate Small Business Health Options Program (SHOP) if they wanted to receive premium subsidies.  SHOPs were created by ACA so businesses with 100 employees or less could purchase health insurance in an Exchange.  Businesses with more than 100 employees could purchase insurance via a SHOP in 2017.   In a SHOP, employers can decide how much they want to contribute toward their employees' insurance premiums costs.
  • In January 2014, Sen. Ron Johnson (R-Wisc.) filed suit, stating in a January 5 Wall Street Journal op-ed that, “If the president wants to change the health-care law, he must ask Congress to do it” and that “the president and his congressional supporters have also broken their promise to the American people that ObamaCare was going to be so good that they would participate in it just like everyone else. In truth, many members of Congress feel entitled to an exemption from the harsh realities of the law they helped jam down Americans' throats in 2010. Unlike millions of their countrymen who have lost coverage and must now purchase insurance through an exchange, members and their staffs will receive an employer contribution to help pay for their new plans.” In July 2014, a federal judge threw out the lawsuit stating the Senator Johnson had not proved he was harmed by the OPM decision and that it was up to Congress to fix the problem.  Johnson promised to review the situation to see what further actions could be taken.

This brings us to the present. While Sen. Vitter lost the subpoena vote, he stated that he “will continue to investigate… and to fight Washington’s special ObamaCare exemption until Congress has to live under the law just like the rest of America.” Senator Vitter has also introduced a bill that would “require that all Members of Congress, the President, Vice President, and all political appointees in the Administration must purchase their health insurance on the ObamaCare Exchange without the help of taxpayer-funded subsidies.  Just like the rest of Americas getting forced into the exchange." Meanwhile, the law breaking under ObamaCare continues and Congress gets to protect itself from the laws it creates.

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