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.
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”?”