Congress isn’t giving itself special treatment on Obamacare. It’s giving itself special punishment.

April 25, 2013

Here are a couple more points on this congressional exemption story, just to clear up lingering issues.


House Speaker John Boehner  (AFP/Getty)

The confusion here is the word "exemption." That makes it sound like Congress is trying to get itself out of Obamacare. But in the absolute strongest form of a fix that's being contemplated -- the one in which Congress completely repeals the troublesome Grassley amendment -- Obamacare would apply to members of Congress and their staffs in the exact same way it applies to employees of The Washington Post, or Politico, or GE, or any other large employer. They wouldn't be any more exempt from the law than I am.

The key thing to understand is that, right now, Obamacare treats members of Congress and their staffs differently than it treats any other employer. They are a small exception to the entire rest of the law.

This isn't about the Affordable Care Act as the rest of the country understands it. It's about the Grassley amendment, which tried to make a political point by stating that members of Congress and their staffs would have to buy insurance from the exchanges rather than getting it, as they had been, from their employer -- in this case, the federal government.

Grassley expected his amendment would be rejected, and the Democrats would be embarrassed. Instead, it was accepted. But the amendment didn't carve out any way to make its exception workable. Having broken the rules for Congress, it didn't create new rules for how the program should work for them.

That put congressional staffers in a unique and unhappy position: Their employer wants to offer them health insurance or at least pay the bulk of their premiums as it is doing now, and as other large employers do. But it potentially can't do that because Congress accidentally threw it into a weird legal limbo in order to prove a point.

You can accuse Congress of different sins here. Neither Democrats nor Republicans clearly understood the implication of the Grassley amendment when it was passed. Moreover, I've long been critical of locking large employers out of the exchanges until 2017 -- it was done to avoid insurance disruptions, but  it impedes our ability to move beyond employer-based health care. If they had set up large-employer exchanges with systems enabling employers to contribute, there'd be no problem here.

But Congress didn't give itself special treatment in Obamacare. It gave itself a special punishment.

If they go all the way in repealing the Grassley amendment, their relationship with the law will be exactly the same as anyone else who works for a large employer -- it'll be how the law is supposed to work. If they do some halfway measure where staffers have to buy insurance on the exchanges but the federal government can help them pay for it, then Obamacare will apply to them a bit more aggressively than it will apply anyone else who works for a large employer -- which was, I think, the actual intent of Sen. Chuck Grassley's amendment -- but it should basically work fine. But as it stands now, Obamacare creates problems for Congress that it doesn't create for any other large employer.

That said, Congress might just have to tough this one out. A core part of the Republican strategy on Obamacare -- which is notably different than how Democrats treated Medicare Part D -- is to try to botch implementation by holding up the funds needed to make it work, fighting the health plan in the states and refusing to pass legislation fixing whatever drafting problems or real-world issues present themselves during the early days of the law.

"The Speaker would like to see resolution of this problem, along with the other nightmares created by Washington Democrats' health law, which is why he supports full repeal," Michael Steel, spokesman for House Speaker John Boehner, e-mailed. "In the meantime, it is [the] Democrats' problem to solve. He will not sneak any language into bills to solve it for them - and the Democratic leadership knows that."

In a literal sense, it's the speaker's problem, too: He and his staff will also be left holding the bag for their own insurance costs. But the reason this is a real problem rather than an easily fixable mistake is that Republicans don't want to fix any problems in the law. They want to make it work as badly as possible so they have more leverage to repeal it, or at least to run against it in 2014. They want to burn down the health-care system to save it. But this time, their own insurance is going to get caught in the blaze.

It's easy to block Medicaid for someone else, or refuse to help people living in some other state navigate the exchanges. But congressional Republicans and Democrats are about to enter into a real endurance test: Which side can last longer paying for insurance out-of-pocket?

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Brad Plumer | April 25, 2013