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Senator Vitter, Congressional Health Care, and the Rule of Law

This weekend the Washington Post published an article entitled “A senator’s lonely quest to embarrass Congress,” which describes Senator Vitter’s continuing efforts with regard to the health insurance plans available to Members of Congress and congressional staff. You wouldn’t think that embarrassing Congress would be all that lonely of a quest; perhaps that’s why the online title is changed to “David Vitter’s political quest to embarrass Congress on health care.”

Of specific interest to this blog, Vitter objects to the fact that some committee and leadership office staffers have not been required to obtain insurance on the exchanges. In remarks made on November 13 in the Congressional Record, he states:

Part of [the OPM] rule, which I think is outrageous on its face, says: Well, we don’t know who official staff are. We cannot determine that, so we are going to leave it up to each individual Member of Congress to determine who their official staff are. As long as they deem certain staff nonofficial, then they don’t have to go to the exchanges at all. They don’t have to follow that clear mandate in the statute itself.

Well, again, when we are talking about folks who work on our staff, committee staff, and leadership staff, that is ridiculous. They are clearly official staff.

The legal question here is who qualifies as “congressional staff” under Subsection 1312(d)(3)(D) of the Affordable Care Act, which defines the term to mean those “employed by the official office of a Member of Congress.” If an employee qualifies as “congressional staff,” he is legally forbidden from obtaining any employment-related health insurance except through the exchanges (specifically D.C. Healthlink). If he does not fall within this legal category, then the prohibition does not apply.

Vitter asserts that committee and leadership employees “clearly” qualify as “official staff.” That seems true, but it is not the test established by the statutory language. A committee employee, for example, may be “official staff,” but it does not follow that he works for “the official office of a Member of Congress.” Perhaps he works for the legislative body, or an “official office” (whatever that means) of the legislative body. As we have discussed, the statutory language is vague, if not incoherent, and it could be reasonably read as either including or excluding committee and leadership staff.

So Vitter is off the mark in contending that the statutory  language “clearly” requires committee and leadership staff to go into the exchanges. But he is on solid ground in criticizing OPM for leaving it up to each Member of Congress to decide who qualifies as “congressional staff.” OPM is required to execute the ACA’s requirements as to “congressional staff,” and it cannot delegate this responsibility to the legislative branch, much less to individual Members. The fact that the legal question may be difficult (not to mention politically controversial) in no way allows OPM to dodge this responsibility.

It should be noted that OPM never claimed that the law itself allowed individual Members to decide who qualified as “congressional staff,” nor did it suggest that the law could be applied differently to identically situated congressional employees. Instead, it adopted a “see no evil” approach under which it would conclusively presume that each Member had properly interpreted the law and applied it to her own employees. No one has explained how this approach could possibly be legal.

The congressional leadership is not without blame here either. Faced with OPM’s illegal non-decision, the proper course of action would have been for each house, with the advice of its legal counsel, to determine the proper interpretation of the law and at least to advise, if not instruct, its members to adhere to this interpretation. Instead, the House and Senate administrative offices, presumably with leadership’s blessing, apparently allowed each Member to designate the employees of her “official office” based on whatever political or other criteria she might choose. As a result, some Members designated only the employees of their personal offices, some designated both personal and committee/leadership employees, and some designated no employees at all.

Vitter wants to make these designations public so as to shame his colleagues for the choices that they made. But this is the wrong focus. The failing here is not of individual Members who were given little guidance (or time) to make the designations in question. Rather it is a collective failing of the executive and legislative branches, which simply ignored the law that Congress wrote. If they treat the law with such contempt, why should they expect citizens to do otherwise?

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