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Harry Reid’s explanation for why not all of his staff is going on ‘Obamacare’

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“All I did was follow the law. The law says that if you have committee staff, leadership staff, they stay where they are. If you have other staff, which is most everyone, they go to the exchanges. I followed the Affordable Care Act. It is the law.”

— Senate Majority Leader Harry Reid (D-Nev.), radio interview, Dec. 5, 2013

The Pinocchio rating on this column has been changed

If there is anything that illustrates the complexity of the Affordable Care Act, a.k.a. Obamacare, it’s the tiny section concerning members of Congress and their staffs. The Fact Checker has spent some time digging into this issue, and it’s headache-inducing.

The law requires members of Congress and at least some staffers to leave the Federal Employees Health Benefit Program and join the health-care exchanges. That was easier said than done, in large part because congressional employees previously had received a stipend to help pay for premiums, whereas they generally make too much to qualify for subsidies in the exchanges. So a system has be jury-rigged, using the D.C. small-business exchange (SHOP), to allow for continued health-care stipends from the federal government.

See, it is headache-inducing.

Our colleagues at have already explored one issue that had interested us: Why House Speaker John Boehner’s insurance premiums increased dramatically. The main reason is that in the federal employee health plan, premiums are not affected by age; the young and old pay the same rate, depending on family status. But on the exchanges, older workers can pay as much as three times as much as younger workers. That’s an improvement for individual plans in the pre-ACA world system — where the “age band” could be five or more times greater — but there is premium-shock if someone, such as Boehner, is 64 and moving from a community-rated plan.

The other contentious issue is that some congressional staff members are able to stay in the federal health plan. Boehner (R-Ohio), House Speaker Nancy Pelosi (D-Calif.) and Republican Leader Mitch McConnell (R-Ky.) have all designated all of their staffs to join the exchanges. So did many other leaders in the Senate and the House. But Reid kept his leadership staff on the federal plan, explaining that he was following the law. Does that mean the others are not following the law?

Let’s explore. Reid’s explanation is certainly newsworthy.

The Facts

During the 2009 debate over the law, Sen. Charles Grassley (R-Iowa) offered an amendment in the Senate Finance Committee that put members of Congress and staff on the exchanges. Grassley has long sought to have laws passed by Congress apply to Congress, and his amendment was adopted. In the Finance Committee, amendments are not written in precise legislative language, but here’s how it described staff who would be covered: “A Congressional employee would be one whose pay is disbursed by the Secretary of the Senate or the Clerk of the House of Representatives.” Similar language appeared in the final version of the Senate Finance bill.

Separately, during a drafting of a version of the law in the Health, Education, Labor and Pensions (HELP) Committee, Sen. Tom Coburn (R-Okla.) had offered a somewhat similar amendment, which was also adopted. That bill had this language: “The term ‘congressional staff’ means 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.”

When it became time to merge the two bills, Democratic leadership staff chose Coburn’s language for an omnibus version known as “the Reid Amendment.” Supposedly, there was a concern that the Finance Committee version would apply to people who worked in Congress but were not staff members, such as the Architect of the Capitol.

The trouble is, once the bill became law, no one knew what “official office” meant. As the Congressional Research Service noted in a report requested by Grassley in late 2009, analysts had not been able to find any previous use of the phrase “official office of a member of Congress” in any previous law or statute.

“It appears possible to argue that the definition of ‘congressional staff’ used [by the provision] excludes any staff not directly affiliated with a Member’s individual or personal office,” the CRS report said. “Should this interpretation be adopted by an implementing body or a court, it would appear that it would exclude professional committee staff, joint committee staff, some shared staff, as well as potentially those staff employed by leadership offices including, but not limited to, the Speaker of the House, Majority Leader of the Senate, Minority Leader of the House, Minority Leader of the Senate, as well as the Whip offices in both the House and Senate.”

Indeed, Grassley had warned as much as he tried, in vain, to get the amendment fixed before final passage of the law. (He blamed Reid for the snafu, though it appears the language originated with Coburn. But in the end it was Reid’s bill, so each party blames the other for the final language.)

“My amendment would close a loophole that was added behind closed doors — meaning the closed doors of the majority leader’s office, Senator Reid, during the time that he was merging the Finance and HELP Committee bills,” Grassley said on the floor of the Senate. “That loophole would exempt staff from committee and leadership offices from being required to use the exchanges even though individual offices of individual senators and their staffs and the senators would still be covered.”

Reid’s spokesman at the time, Jim Manley, acknowledged to Politico “that the bill exempts committee staff but argued that leadership staff is not excluded.”

When it came time for the Office of Personnel Management to draft the regulations, it faced a number of puzzles. “There is not a lot of legislative history to this section, and it was not a heck of a lot to go on,” one official said. On this issue of staff, OPM essentially kicked the whole thing back to Congress.

“OPM 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 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.”

This was then translated into guidance by the secretary of the Senate and the chief administrative officer for the House. The two notices are embedded below.

Guidance by Senate Financial Clerk by Glenn Kessler

Guidance for Members Regarding Affordable Care Act Designation of Staff by Glenn Kessler

In both cases, lawmakers are given the option to designate which staffs will be covered by exchanges. If the lawmaker chooses to do nothing, then the administrators will make the determination as to which staff members are personal and thus should go on the exchange.

Pelosi, Boehner and McConnell looked at this guidance and decided that all of their staff, personal and leadership, should go on the exchanges, aides said. News reports indicate a number of other top Democratic leaders, such as Sen. Richard Durbin (D-Ill.) and Sen. Patty Murray (D-Wash.), also placed all of their staff on the exchanges.

But Adam Jentleson, a spokesman for Reid, said the majority leader did not do so because of possible legal ramifications. Reid’s office concluded that a leadership staffer could be moved to the exchange only for a specific reason, such as working on a constituent project.

“Our office had a number of conversations with the secretary of the Senate and Senate legal counsel concerning language authored by Senator Coburn in the Affordable Care Act, which made a distinction between staff as it relates to health-care coverage. Our office was advised by Senate legal counsel that the clear intent of the law was for most staff and members to go into the exchange, but leadership and committee staff were to remain within the federal employees health program. We were further advised that covering all staff through the exchanges could expose the Senate to possible legal action. On this basis, we were advised by Senate legal counsel against putting all staff into the exchanges. We took their advice and followed the law as it is.”

Jentleson said he was not able to share the copies of the communications between the legal counsel and Reid’s office. Update: Senate Legal Counsel Morgan Frankel confirmed he had spoken to Reid’s office.

Don Stewart, a spokesman for McConnell, said his office did not get a similar warning: “They did not tell us that it would expose the Senate to legal challenges.”

“We attended a meeting with the secretary of the Senate, at her request,” Stewart added. “At that meeting, the Senate legal counsel was there, and they gave us their views about conflicting legal history/authority they were trying to sort through. In that briefing they never said that treating leadership staff and personal office staff equally would open up the Senate to litigation. ”

Update: Stewart said he does not believe the question was raised in the meeting but noted it was unlikely the Senate legal counsel would have allowed the Secretary of State to issue guidance that opened the Senate to litigation.

While many senior senators opted to put all of their staff on exchanges, other lawmakers have also followed the path chosen by Reid. One was Grassley. The Associated Press in November reported this account of Grassley’s decision-making:

Grassley said Thursday he took the question and the “convoluted system” to the secretary of the Senate and came up with an answer. His personal staff will exit the federal insurance program and get health insurance from an exchange. But Grassley’s aides on the Senate Finance Committee will remain on the Federal Employee Health Benefit Program. “That’s the law,” he said.

Update: Clearly, the law created some flexibility and ambiguity, leaving lawmakers in the dark about the best course to choose. The possible litigation risk to the Senate appears slight, however. OPM, having written the regulations, would be a more logical target for a possible lawsuit.

The Pinocchio Test

This story certainly illustrates the complexity of the health-care law, when even the people who crafted it don’t agree on what it means.

Reid said that “the law said leadership and committee staff should stay where they were.” He, of course, was at least partially responsible for the law. And yet ever since it was passed, the specific language has puzzled and confused experts and lawmakers about the precise meaning of “official office.”

The OPM guidance appears to have left the final determinations to lawmakers. So did the guidance from the administrative offices. Predictably, lawmakers have taken different routes, though among the top four leaders, Reid is the only one who chose not to put all his staff on the exchange.

He says his hands are tied because the legal counsel told his office that putting all his staff on the exchanges could expose the Senate to possible legal action, presumably from a staff member upset that he or she has been moved to the exchanges. (It certainly would be an interesting legal challenge for a Democratic staffer to make.)

But that explanation raises additional questions. Why was the additional legal guidance sought in the first place? Does the legal counsel’s opinion mean many of Reid’s colleagues are taking steps that could result in lawsuits? And why, then, did the secretary of the Senate not issue clearer guidance to lawmakers about the potential legal ramifications?

At the same time, Reid can rightly argue that, based on the administrative guidance, if he had simply left the designation to the secretary of the Senate, the result would have been the same: leadership staff would not have moved to the exchanges. The path of least resistance may have turned out to be the route with the biggest political risk. But there were two paths.

The bottom line is this: Reid is essentially claiming he had no choice. He may have had a basis for this decision. But, judging from the way that many of his colleagues have handled this, he did have a choice, potential lawsuit or not.

As for Pinocchios, we find ourselves wavering between two and three, though we do not give 1/2 Pinocchios. This was a difficult judgment to make. But it tips ever so slightly toward Three.

Update: Upon additional reflection, we are going to switch this to Two Pinocchios. We have now confirmed that Reid did rely on the advice of the Senate legal counsel, choosing what he determined to be a more accurate reading of the law. The litigation risk is probably overstated, however, and Reid certainly had the option of taking another path. The law is ambiguous, and Reid should simply say he chose what he considered a better reading of the law.

Two Pinocchios

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