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No, Congress isn’t trying to exempt itself from Obamacare

There's a Politico story making the rounds that says that members of Congress are engaged in secret, sensitive negotiations to exempt themselves and their staffs from Obamacare.

Well, they were secret, anyway.

The story has blown up on Twitter. "Unbelievable," tweets TPM's Brian Beutler. "Flat out incredible," says Politico's Ben White. "Obamacare for thee, but not for me," snarks Ben Domenech. "Two thumbs way, way down," says Richard Roeper. (Okay, I made the last one up).

If this sounds unbelievable, it's because it is. There's no effort to "exempt" Congress from Obamacare. No matter how this shakes out, Congress will have to follow the law, just like everyone else does.

Based on conversations I've had with a number of the staffs involved in these talks, the actual issue here is far less interesting, and far less explosive, than an exemption. Rather, a Republican amendment meant to embarrass Democrats and a too-clever-by-half Democratic response has possibly created a problem in which the federal government can't make its normal contribution to the insurance premiums of congressional staffers.


See? This is getting boring already.

Here's how it happened: Back during the Affordable Care Act negotiations, Sen. Chuck Grassley (R-Iowa) proposed an amendment forcing all members of Congress and all of their staffs to enter the exchanges. The purpose of the amendment was to embarrass the Democrats. But in a bit of jujitsu of which they were inordinately proud, Democrats instead embraced the amendment and added it to the law. Here's the relevant text:

The only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are — (I) created under this Act (or an amendment made by this Act); or (II) offered through an Exchange established under this Act (or an amendment made by this Act).

Let's stop for a moment here and explain why this is unusual. Large employers -- defined in the law as employers with more than 100 employees -- aren't allowed onto the insurance exchanges until 2017, and only then if a state makes an affirmative decision to let them in.

But the federal government is the largest employer in the country. So Grassley's amendment means that the largest employer in the country is required to put some of its employees -- the ones working for Congress -- on the exchanges. But the exchanges don't have any procedures for handling premium contributions for large employers.

That's where the problem comes in. This was an offhand amendment that was supposed to be rejected. It's not clear that the federal government has the authority to pay for congressional staffers on the exchanges, the way it pays for them now in the federal benefits program. That could lead to a lot of staffers quitting Congress because they can't afford to shoulder 100 percent of their premiums. (There's also a smaller issue related to how retiree benefits might be calculated. But I'm only willing to go so far into the weeds here.)

You'll notice a lot of hedged language here: "Ifs" and "coulds". The reason is that the Office of Personnel Management -- which is the agency that actually manages the federal government's benefits -- hasn't ruled on their interpretation of the law. So no one is even sure if this will be an issue. As the Politico article notes, some offices, like that of Rep. Henry Waxman (D-Calif.), interpret the language of the law such that there's no problem at all. Others are worried it could be an issue, and are trying to prepare ways around it. The staffs I talked to stressed this worrying was preliminary, and felt the Politico article was jumping the gun. "This whole Politico story is based on a ruling that hasn't even come down yet," one griped.

But no one is discussing "exempting" congressional staffers from Obamacare. They're discussing creating some method through which the federal government can keep making its current contribution to the health insurance of congressional staffers.

"Even if OPM rules against us," one staffer said, "it's inaccurate to imply that any talks are aimed at exempting federal employees from routine mandates of ACA since any talks are about resolving the unique bind that the Grassley amendment puts federal employees in."

This isn't, in other words, an effort to flee Obamacare. It's an effort to fix a drafting error that prevents the federal government from paying into insurance exchanges on behalf of congressional staffers who got caught up in a political controversy.