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.”
In a memorandum issued shortly after the ACA’s passage, CRS found that there were two reasonable interpretations of the term. First, it noted that “the official office” of a Member could refer solely to the personal office that each Representative and Senator maintains out of an appropriation set aside specifically for that purpose. In the House, this would be the Member’s Representational Allowance, which is “available to support the conduct of the official and representational duties of a Member of the House of Representatives with respect to the district from which the Member is elected.” 2 U.S.C. § 92. In the Senate, it would be the allowance Senators receive from the Senators’ Official Personnel and Office Expense Account. 2 U.S.C. § 58c.
This interpretation makes a certain amount of intuitive sense to those who are familiar with how Congress operates, but CRS doesn’t provide much explanation for how one would substantiate it using the normal techniques of statutory interpretation. The fact that a Member’s personal office exists for the purpose of furthering her official duties (or, more precisely, her official and representational duties) may suggest it constitutes her “official office,” but it is hard to see how it shows it is her only official office. One might try arguing that the law’s reference to “the official office” of a Member implies that there is only one such office per Member (shades of Noel Canning!), but CRS doesn’t make this argument, and I rather doubt it would be persuasive to a court or other objective party.
Alternatively, CRS suggests that “congressional staff” could “be interpreted as encompassing more than a Member’s personal staff.” In that case, an “official office of a Member” could be any office where a Member has hiring authority. This could include leadership offices, where a single Member would have that authority. CRS notes that it could also include committees to the extent that House and Senate rules “indicate that the chair has authority over the committee budget, serves as the employing authority, and determines the terms and conditions of staff.” Even more broadly, it might encompass other administrative, legal, and legislative support offices on the theory that those offices are directly or indirectly accountable to particular Members or to the legislative body as a whole.
A variant of CRS’s second interpretation was suggested by a senior Senate aide, who allegedly told reporters that “the [congressional staff] provision does not apply to committee staff, but that leadership staff may not be exempted.” The basis for this distinction was not explained, but one may infer that it is based on the fact that leadership staff are employed by a single Member, while committee staff are employed by the committee as a whole.
A final interpretive issue has to do with the ostensible purpose of enacting Subsection 1312(d)(3)(D). The provision is designed, like the Congressional Accountability Act, to ensure that Congress feels the effects of the laws it enacts. Thus, Senator Grassley remarked in supporting the CAA, “Congress can no longer refuse to live by the laws it passes.” Cong. Rec. 649 (Jan. 5, 1995). As Senator Glenn said at the time, quoting Senator Ervin, “Congress is ‘like a doctor prescribing medicine for a patient that he himself would not take.’” Id. at 655.
There is, however, an important difference between the CAA and the ACA. The former makes Congress feel the pain of the employment laws by providing employment rights to congressional employees. The latter makes Congress feel the pain of the health care law by taking benefits away from congressional employees (as well as Members). The presumption is that those employees have some sort of influence with respect to the enactment or potential repeal/amendment of the ACA. This presumption is true, if at all, for a relatively small number of congressional employees, who are more likely to be on leadership and (some) committee staffs than in personal offices.
Which brings us to OPM’s proposed rulemaking. OPM begins by explaining that currently Members of Congress and “congressional employees (which include each Member’s respective personal staffs, staffs of House and Senate leadership committees [sic], other committee staff and administrative office staff” are eligible to participate in the heath insurance plans (the FEHB) for which OPM contracts under chapter 89 of Title 5. Thanks to Subsection 1312(d)(3)(D), however, this will no longer be the case for “Members of Congress and congressional staff” starting January 1, 2014.
We have already seen that the definition of “congressional staff” is ambiguous. Since it is OPM’s responsibility to determine who is eligible to enroll in FEHB plans, one would think it OPM’s solemn though unpleasant duty to resolve this ambiguity and inform the House and Senate administrative and disbursement offices accordingly.
One would think wrong. Apparently construing the meaning of “official office” is beyond OPM’s capability. The proposed rulemaking “explains” that “[b]ecause there is no existing statutory or regulatory definition of ‘official office,’ the proposed rule delegates to the employing office of the Member of Congress the determination as to whether an employed individual meets the statutory definition.”
Translated into plain English, this means: “You thought you would cleverly stick us with the responsibility for deciding who is covered, but guess what? We are going to punt it right back to you.”
What’s worse, OPM’s proposed rulemaking is ambiguous as to what it didn’t decide. Many people on Capitol Hill interpret OPM’s decision as meaning that only personal office staff are required to go on the Exchanges. This interpretation flows from the following passage in the proposed rulemaking:
Based on research related to the administration of congressional staffing, including communication with the respective House and Senate administrative and disbursement offices, OPM has determined that Members’ offices are best equipped to make the determination as to whether an individual is employed by the “official office” of that Member. OPM’s understanding is that congressional staff often have allocated to them a percentage of work as personal staff and a percentage of work as committee or leadership committee [sic] staff. It also is common for the percentage to change during the year. Moreover, staff are often unaware of these percentages or budgetary source of their compensation. OPM believes that allowing the employing office to make the determination as to whether particular individuals are employed by the “official office” is most appropriate, and will allow such determinations to be made by the office of the Member of Congress, which is their employer.
This passage implies that “committee or leadership” staff are not employed by an “official office” because, if it were otherwise, the discussion of shared staff would seem to be irrelevant. Moreover, OPM was undoubtedly aware that CRS had previously raised the question of “shared staff” as an issue in the event that a “narrow definition” of “official office” were adopted. Thus, one may infer that OPM assumed that a narrow definition (personal office staff only) was appropriate.
However, a close reading of OPM”s proposed rulemaking indicates that OPM carefully avoided making any direct pronouncement on the differing interpretations discussed by CRS. Thus, it is possible to read OPM as saying that “Members’ offices” are free to designate employees as “congressional staff” even if they work (and are expected to work) solely for a committee or leadership office.
Arguably, this distinction has little immediate significance because OPM says that it “will not review or overturn” any determinations made as to whether particular individuals qualify as “congressional staff.” Thus, regardless of what OPM meant to say or not say, if a Member designates a particular congressional employee as “congressional staff,” OPM will apparently follow the designation whether or not the individual works solely for a leadership office, a committee, or possibly even an administrative support office. (Maybe some wiseacre will test the limits of this approach by designating Lois Lerner as “congressional staff.”)
It may matter, however, if aggravated congressional employees decide to sue in order to remain eligible for the FEHB. At that point, a court would have to decide whether to give deference to OPM’s administrative interpretation of ambiguous language used in Subsection 1312(d)(3)(D). If it can figure out what OPM’s interpretation was.
Meanwhile, no one in the House and Senate seems to have any idea how to handle the political hot potato that OPM tossed back to them. The House Chief Administrative Officer and the Senate Disbursing Office have already warned congressional employees that there is unlikely to be any clarity on the health insurance issue by October 1, when the Exchanges are supposed to be open for business. Instead, Congress is going to hope that OPM’s final rule brings some clarity to this issue. OPM, which has to wade through tens of thousands of comments received on the proposed rule, reportedly views November 11, the first day of federal open enrollment, as the “drop dead” date for issuing a final rule. (Possibly not the best expression for jittery staffers worried about the quality of health care on the Exchanges.)
In a September 23 email, the Senate Disbursing Office told Senators and Senate staff:
As the OPM Regulation are not final and we are awaiting further information, Members and staff are advised that they should delay enrolling in health insurance plans until we are able to offer further guidance as to how they should enroll in these insurance plans for 2014. Premature enrollment could adversely impact eligibility for the employer premium contribution.
(Bold in original). I guess “premature enrollment” is one condition not covered by the ACA.
Where Do We Go From Here?
Assuming that OPM does not significantly change its approach (which seems like a pretty safe bet), it is very unclear how this situation is going to be resolved. It seems possible that House and Senate leadership can agree to exclude legislative support offices, like the Clerk of the House, the Secretary of the Senate, etc., from the definition of “congressional staff.” But it seems unlikely that there will be an agreement to exclude leadership and committee staffs, particularly in the House. Indeed, this isn’t just a problem for House and Senate conservatives. I am told that Minority Leader Pelosi has already said that House Democratic leadership and committee staff should go on the Exchanges.
There could be an agreement to categorically include everyone working for personal, committee and leadership offices. Such a decision would probably prompt howls of outrage, mass departures and perhaps some lawsuits.
The alternative would be to leave it up to each Member to decide which employees to designate as “congressional staff,” including those working for that Member in leadership or committee offices. This seems like a recipe for chaos, particularly since it will be unclear, in some cases, whether a committee staffer works for the full committee chairman, the ranking member or a subcommittee chair. Besides this, it will lead to a patchwork system where one congressional employee is eligible to stay on the FEHB, when another employee doing the same job, or even working in the same office, is not.
As one Capitol Hill source told me (and I paraphrase), what a “bleeping mess.”