OPM’s Final Rule Pretty Much as Expected

OPM’s final rule on congressional health care says the following regarding the determination of who is “congressional staff” required to go on the Exchanges:

OPM received several comments related to health care coverage for congressional staff and how staff will be designated for the purpose of determining which individuals are required to purchase their health insurance coverage from an Exchange.

 OPM has not amended the final rule on the basis of these comments. OPM continues to believe that individual Members or their designees are in the best position to determine which staff work in the official office of each Member.  Accordingly, OPM will leave those determinations to the Members or their designees, and will not interfere in the process by which a Member of Congress may work with the House and Senate Administrative Offices to determine which of their staff are eligible for a Government contribution towards a health benefits plan purchased through an appropriate Small Business Health Options Program (SHOP) as determined by the Director.  Nothing in this regulation limits a Member’s authority to delegate to the House or Senate Administrative Offices the Member’s decision about the proper designation of his or her staff. The final rule has been amended to provide an extension for staff designations affecting plan year 2014 only. Designations for individuals hired throughout the plan year should be made at the time of hire.

Again, reading between the lines, one can infer that “the official office of each Member” refers to the Member’s personal office, but OPM studiously avoids saying this directly. Thus, if a Member chooses to designate committee or leadership office employees as “congressional staff,” it sounds like OPM “will not interfere.”

Though it is hard to tell for sure.

What the Bleep is an “Official Office”?

Much outrage ensued last month when the Office of Personnel Management issued a proposed regulation that allows the federal government to defray the cost of congressional health care purchased on the Exchanges pursuant to the Affordable Care Act. Less notice was taken of OPM’s more dubious decision, or rather non-decision, on the question of who is required to purchase insurance on the Exchanges in the first place.

Legislative Background

Some background is required. During the heath care debate, Senators Coburn and Grassley “argued that if Democrats were so keen on creating new health care programs, the president, administration officials, members of Congress and their staff should also be required to participate.” They offered amendments to that effect. Eventually the sausage machine spit out a provision that embodies their concept, but only applies to Congress, not to the executive branch. Go figure.

Specifically, as enacted into law, Subsection 1312(d)(3)(D) of the ACA provides that “Members of Congress and congressional staff” are only eligible to receive health insurance “offered through an Exchange under this Act.” When this provision becomes effective, therefore, Members and anyone who qualifies as “congressional staff” will no longer be able to participate in the general health insurance program for federal employees (the FEHB).

The question then is who qualifies as “congressional staff.” As far as I know, “congressional staff” is not a term of art defined in the law, but the ordinary meaning of the term would generally cover legislative and administrative employees of the House and Senate, with the possible exception of those who solely provide support services like installing the furniture, running the restaurants, etc. See Cong. Rec. 655 (Jan. 5, 1995) (“[O]ur legislative and our administrative personnel [are what] many people think of when you think of Capitol Hill staffers.”) (Sen. Glenn).

The ACA, however, contains a unique and rather unhelpful definition of “congressional staff.”  It defines the term as meaning “all full-time and part-time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC.”

Note the apparent lack of content in this definition. It hardly seems necessary to explain that “all full-time or part-time employees” are covered or that they may work “in Washington, DC or outside of Washington, DC.” Or they may be short or tall, fat or thin, I’m guessing.

The only real point of the definition seems to be to limit “congressional staff” to those “employed by the official office of a Member of Congress.” But what is an “official office”? Do Members have “unofficial offices”? No one seems to know what an “official office of a Member of Congress” is, and, as the Congressional Research Service has observed, this phrase has not previously been used in statute or appropriations law.

If clarity had been desired, there are many existing statutory definitions that could have been used. For example, if the intent had been to limit “congressional staff” to those employed in a Member’s personal office, it would have been easy enough to say this plainly. See 2 U.S.C. § 1301 (9)(a) (defining “employing office” for purposes of the Congressional Accountability Act as including “the personal office of a Member of the House of Representatives or of a Senator.”). Of course, a cynic might conclude that obscure language was deliberately used so as to maintain plausible deniability in case someone read the provision before it was passed.

During the legislative process, Coburn and Grassley apparently objected to the definition of “congressional staff” as too narrow, contending that it would exclude “higher-paid committee aides and leadership aides.” They wanted to use Grassley’s original definition, which had covered all employees paid through the House and Senate disbursing offices. That would not only have been broader, but more intelligible and consistent with existing statutory usages. See, e.g., 2 U.S.C. §§ 89a, 130b, 130c and 130d (defining House and Senate employees as those who receive pay from the relevant disbursing authorities).

But Coburn and Grassley lost (they blame the Senate leadership), and the definition is what it is. So those required to implement the law have to figure out what constitutes a Member’s “official office.”  Continue reading “What the Bleep is an “Official Office”?”

Legal Ethics in Representing Witnesses Before Congress

According to this Legal Times piece, Dickstein Shapiro has a problem with the House Committee on Oversight and Government Reform. Does it also have a legal ethics problem? The Legal Times relates:

Before beginning to question the five witnesses, committee chair Darrell Issa (R-Calif.) paused to criticize a Dickstein employee’s activities prior to the hearing. The employee—who was not identified, except as a female member of the firm’s lobbying group—“made multiple contacts to committee members and specifically asked them not to ask you questions,” Issa said.

Issa produced a copy of what he termed “a disturbing” email, with the sender’s name blacked out. It read: “If possible, please do not direct questions to Jonathan Silver…He’s a client of my firm. :)”

Issa said, “From the committee’s standpoint, the question is whether to refer this to the bar association, whether it’s an interference with Congress, which I find it to be.”

Rule 3.9 of the D.C. Bar Rules of Professional Conduct provides that “a lawyer representing a client before a legislative or administrative body in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3, 3.4(a) through (c), and 3.5.” The comments state that “[a] lawyer appearing before such a body should deal with it honestly and in conformity with applicable rules of procedure,” and “legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.”

Rule 3.5(a) provides that a lawyer shall not “seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.”

Rule 3.5(b) prohibits ex parte communications “during the proceeding unless authorized to do so by law or court order.”

Finally, Rule 3.5(d) prohibits a lawyer from “engag[ing] in conduct intended to disrupt any proceeding of a tribunal, including a deposition.”

Exactly how these provisions apply in the context of a congressional proceeding is a question that Bar Counsel has probably never faced before. In fact, my impression (confirmed by Jack Marshall at a recent seminar) is that even most legal ethics experts have never heard of Rule 3.9. But if the Dickstein employee is a member of the D.C. bar, or is supervised by a member of the D.C. bar responsible for her conduct, there would seem to be some serious ethics questions raised.


Article V and the Single Amendment Convention

Can an Article V convention for proposing amendments be limited to considering a single amendment specified by the state legislatures in their applications? Even within the relatively sparse literature on the Article V convention, little attention has been paid to this question. Professor Rob Natelson, who has written extensively in support of the proposition that a convention may be limited to a particular subject, has expressed skepticism regarding the viability of a “single amendment convention.” Natelson’s view, however, is less a firm conclusion about the original meaning of Article V than a prediction regarding the practical difficulties likely to attend an effort to hold a single amendment convention, including the possibility that Congress or the courts would refuse to recognize it.

Recently a prominent originalist scholar, Professor Michael Rappaport (well known to the readers of this blog), has concluded that Article V permits a convention for proposing amendments to be limited by either subject or the wording of a particular amendment. See Michael B. Rappaport, The Constitutionality of a Limited Convention: An Originalist Analysis, 81 Const. Comm. 53, 56 (2012) (“The Constitution allows the state legislatures to apply not merely for a convention limited to a specific subject matter [but allows them] to draft a specially worded amendment and then to apply for a convention limited to deciding only whether to propose that amendment.”).

Although the issue is not free from doubt, I agree with Rappaport that the state legislatures have the power to limit an Article V convention to a single amendment. This is so for five reasons: Continue reading “Article V and the Single Amendment Convention”