[Congressional Record Volume 162, Number 105 (Wednesday, June 29, 2016)]
[Senate]
[Pages S4725-S4729]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. VITTER:
  S. 3120. A bill to apply the provisions of the Patient Protection and 
Affordable Care Act to Congressional members and members of the 
executive branch; to the Committee on Homeland Security and 
Governmental Affairs.
  Mr. VITTER. Mr. President, I rise today to discuss a really 
outrageous abuse of power on the part of Members of this body, Members 
of the House, Washington officials in general. While imposing ObamaCare 
on everyone else, officials in Washington have largely exempted 
themselves from ObamaCare's most inconvenient aspects through yet 
another illegal Obama Executive action that created the Washington 
exemption from ObamaCare.
  Unfortunately, this is not a new practice on the part of the 
Washington elite. Washington lawmakers often create or support 
exemptions for themselves from the laws they pass on everyone else. 
This undemocratic practice dates back to the 19th century at least--the 
Civil Service Act of 1883; the Fair Labor Standards Act of 1938, coming 
into the 20th century; the Freedom of Information Act of 1966. The list 
goes on and on.
  As the late Representative Henry Hyde is famously quoted as saying

[[Page S4726]]

many years ago, ``Congress would exempt itself from the law of gravity 
if it could.'' That is sadly true, and this practice must end.
  I have always believed the first rule of an American democracy should 
be that whatever Washington passes on America, it should have to live 
under itself--no special exemptions, no special subsidies, no special 
deals, no special treatment. This rule is important for two reasons. 
The first reason is basic fairness. It is simply not fair for a select 
group of elites to live by a different and more beneficial set of rules 
than everyone else. The second reason, perhaps even more importantly, 
is a key practical reason; that is, when you make the chef eat his own 
cooking, it almost always gets better and often in a hurry. Congress 
can be an effective, responsive, truly representative legislative body 
only when it lives under the same laws it imposes on the rest of the 
country.
  Passing ObamaCare, the Patient Protection and Affordable Care Act, 
was a huge, complicated undertaking on the part of its advocates. 
Related to that, it was certainly telling when then-Speaker of the 
House Nancy Pelosi notoriously declared: ``We have to pass the bill so 
we can find out what is in it.'' After passing the bill, when Members 
of Congress realized what was in it for them, they scurried to figure 
out a scheme that would protect their own elite health care, including 
taxpayer-funded subsidies that don't exist in the ObamaCare statute at 
all, much less for anyone else.
  Of course, there were even more serious problems in the ObamaCare 
statute for all Americans. When President Obama signed ObamaCare into 
law in March of 2010, it consisted of poorly written language that 
imposed drastic and unwanted health insurance changes on countless 
Americans. Despite the President's promise that Americans could keep 
their existing insurance, the law said otherwise. The cost of complying 
or failing to comply with ObamaCare belied the President's false 
assurances.
  In the following months, insurers and employers and Americans 
realized this through the cancellation or nonrenewals of insurance 
plans for millions of Americans. Ultimately, millions of American 
workers faced burdens, including losing their individual and employer-
provided coverage, being forced into alternatives that involved paying 
higher premiums with unwanted or useless new coverage, and having to 
change doctors and health care providers against their will.
  As I said earlier, simultaneous with all of this, Members of Congress 
started to realize what was in ObamaCare for them. When they passed 
ObamaCare, they had revoked Congress's own generous health care 
coverage and the monthly employer government premium contributions that 
went with it.
  Prior to ObamaCare, Members of Congress and their staff received 
health insurance coverage through the Federal Employees Health Benefits 
Program, or the FEHBP, run by the Office of Personnel Management. It 
had served as the health care network for Federal workers since 1959.
  In 2013 alone, FEHBP represented the country's largest employer-
sponsored health insurance program, with costs approaching $32.4 
billion in premiums for about 8 million enrollees. One of the benefits 
of FEHBP was the wide variety of health insurance policies that 
provided coverage for individuals and their family members. Even more 
important was that FEHBP provided a taxpayer-funded government 
contribution to each enrollee's monthly premium.
  In 2013 alone, the maximum FEHBP averaged $413 a month or almost 
$5,000 per year for individual coverage, and $920 a month or over 
$10,000 a year for family coverage.
  An added bonus was that these taxpayer-funded contributions counted 
as tax-free income to employees. This is certainly a great benefit for 
Federal employees, and I absolutely believe they should be treated 
fairly in return for the public service they provide. I also believe 
Congress has to follow the law as written, and that is when we get to 
ObamaCare.
  ObamaCare very clearly and specifically changed all of this. It 
mandated that Members of Congress and congressional staff give up that 
FEHBP coverage beginning January 1, 2014, and join an ObamaCare health 
insurance exchange. The relevant section of the act is crystal clear. 
It says: ``Notwithstanding any other provisions of law, after the 
effective date of this subtitle, the only health plans that the Federal 
Government may make available to Members of Congress and congressional 
staff with respect to their services 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).''
  It changed our entire coverage, clearly, unequivocally. The word 
``notwithstanding'' means ``in spite of,'' sweeping aside any other 
provision of law. It definitively dictates that section 1312(d)(3)(D) 
takes precedence over any other conflicting provision in the bill or 
anywhere in the code. Some folks may not like that, but that is the 
law. That became the law, clearly and unequivocally, when ObamaCare was 
passed into law.
  It didn't have to be exactly that way. For instance, Senator Chuck 
Grassley introduced an amendment during debate on the ObamaCare bill 
that would have changed this final language regarding how ObamaCare 
impacts Congress. The Grassley amendment clearly described which 
Federal employees were subject to the law and must enroll on the new 
exchanges. That wasn't different. It included the President, the Vice 
President, each Member of Congress, each political appointee, and each 
congressional employee, but it also permitted Federal employees to 
continue receiving the employer-government contributions like those 
received under FEHBP. However, the Senate never voted on that language, 
on that Grassley amendment, before ObamaCare became law. Even more 
telling, even more significant, after ObamaCare became law, Senator 
Grassley again offered that language. He got a vote then, and that 
language was defeated in the Senate 56 to 43.
  The final Obama language very clearly states Members of Congress must 
purchase their health insurance on a State-based or Federal exchange, 
and it has absolutely no provision for a rich, taxpayer-funded subsidy. 
That is why I followed that law. I personally signed up for health 
insurance on Louisiana's individual health care exchange. It definitely 
costs me more money, and it definitely costs my family more money, but 
that is what the law says we have to do.
  As millions of Americans face the possibility of losing the health 
insurance they had that they liked and wanted to keep, as I mentioned a 
few minutes ago, Members of Congress faced increased expenses on their 
own personal new health insurance plans. Which of these two problems do 
you think Congress scrambled to solve? You guessed it--their own; not 
all of America's problems, the Washington elite's problems. They made a 
determined effort to find a way to protect themselves, and sadly this 
was a fully bipartisan, bicameral effort that ultimately led to 
Washington's exemption from ObamaCare.

  With the January 1, 2014, deadline quickly approaching for Congress 
to give up its FEHBP benefits, congressional leadership scrambled for a 
solution. Press reports at the time indicated that top lawmakers 
initiated confidential talks with Obama administration officials to 
carve out a suitable exemption from ObamaCare.
  After extended closed-door deliberations, a proposal emerged that 
involved using OPM, the Office of Personnel Management, to promulgate a 
special agency rule that only applied to Congress. During the 
rulemaking process, OPM admitted that ``many commenters expressed their 
view that a Government contribution is antithetical to the intent of 
Section 1312 of the Affordable Care Act, which they interpret to 
require Members of Congress and congressional staff to purchase the 
same health insurance available to private citizens on the Exchanges. 
Commenters asserted that Members of Congress and congressional staff 
should be subject to the same requirements as citizens purchasing 
insurance on the Exchanges, including individual responsibility for 
premiums and income restrictions for premium assistance.'' That was in 
Politico, and I certainly agree with the sentiment. That is what 
ObamaCare and the statute said.

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  Members of Congress should absolutely live under the laws they pass. 
Unfortunately, though, under this cleverly hatched scheme, OPM 
disregarded these comments and moved forward with its insider rule. 
Through illegal executive action--an executive action contrary to the 
ObamaCare statute--the final OPM rule in effect declared Congress to be 
a small business so that Members of Congress and staff could purchase 
plans on DC's small business exchange explicitly reserved under the 
ObamaCare statute for small businesses of 50 employees or fewer. This 
rule also permitted the Washington insiders to receive a generous 
employer contribution toward their premiums that is not noted anywhere 
in the ObamaCare statute.
  OPM's final rule did two things: First, it allowed all Members of 
Congress and staff to purchase insurance on this DC small business 
exchange created for small businesses. It was clearly created for 
businesses with 50 employees or fewer. Second, it made sure that the 
small employer contribution would be equal to Congress's previously 
acquired FEHBP contributions.
  With OPM's final rule, Members of Congress and congressional staff 
would not have to pay any extra out-of-pocket expenses like so many 
millions on the ObamaCare exchanges had to pay.
  I guess this is great news for Congress, but there are major problems 
with this final rule that make it just flatout wrong and flatout 
illegal and contrary to the ObamaCare statute.
  The first thing that makes it flatout wrong is that it was specific 
to Members of Congress and congressional staff--a solution for the 
Washington insiders when millions of Americans continued to suffer the 
serious negative consequences of ObamaCare.
  Second, it suggested it pushed Congress into this DC small business 
exchange when Congress is obviously not a small business and this 
exchange was created for the benefit of small businesses.
  Third, the relevant statute in ObamaCare says nothing about any 
employer subsidy for members of staff, no taxpayer-funded subsidy, and 
yet OPM's rule created this out of thin air.
  A fourth problem is one of the most egregious examples of how big a 
scam this rule is. Members of Congress actually have the option to 
designate any or all of their staff as ``not official,'' thus allowing 
the staff to stay on their old FEHBP plans to avoid the exchanges 
altogether, which was the intent of that ObamaCare provision. This 
completely frustrates the crystal-clear language of ObamaCare for those 
staff members in a blatant way. Again, that problem is egregious and 
just underscores how big a scam this rule is. Those staff members use 
official taxpayer-funded resources. They get paychecks funded by the 
taxpayer. It is official. They use official letterhead, official 
everything, official resources, but somehow they are not official for 
purposes of this ObamaCare provision. That is outrageous.
  In 2014, when all of this went into effect, I served as the ranking 
member on the Senate EPW Committee. I certainly considered all of my 
staff, including committee staff, to be official government employees. 
It is obvious they were. I made sure they were all designated as 
official and had to go to the exchanges. When I took over as chairman 
of the Small Business Committee last year, I again absolutely did the 
right thing and designated my committee staff, as well as my personal 
staff, as official. They clearly are official.
  Let's go back to the OPM rule. In order for U.S. House and Senate 
Members and staff to enroll in this DC small business exchange, the 
Senate and the House of Representatives had to submit online 
applications. In September 2014, Judicial Watch, a government watchdog 
organization, asked for and eventually received several documents from 
the DC Health Benefits Exchange Authority in response to their Freedom 
of Information Act request related to Congress receiving benefits under 
this DC small business exchange. The documents included nine pages of 
applications completed and submitted online for U.S. House and Senate 
Members and for House staff to enroll on that DC small business 
exchange.
  If the House and Senate completed the online applications with 
truthful information, they would have been automatically rejected on 
the computer by the DC exchange software system based on employee size 
and other prohibitive factors. What happened? Well, as you can see, 
what was submitted were blatantly false applications--applications with 
completely and blatantly false information. We have an example from the 
U.S. Senate.
  First, all of the applications state that each legislative body--the 
House on the one hand and the Senate on the other--employed 45 full-
time equivalent employees during the previous calendar year. In order 
to get on this small business exchange, they were asked how many 
employees--the U.S. House of Representatives, 45; the U.S. Senate, 45. 
Here is the number right here on the application. It is blatantly, 
obviously, and laughably false.
  Second, all three applications include blatantly false employee names 
and birth dates that were asked to be listed.
  Third, they falsified the category of the U.S. House of 
Representatives and the U.S. Senate. Both Federal legislative bodies 
were entitled as State or local government entities to squeeze onto 
this small business exchange.
  It should be noted that the applications submitted on behalf of the 
House on the one hand and the Senate on the other contain these three 
identical misrepresentations. These identical false statements are 
evidence of a carefully coordinated scheme. The two forms allege 
exactly the same erroneous number of full-time equivalent employees--
45--just under the maximum allowed of 50. They contain the exact same 
false employee name and birth date information. They use exactly the 
same false employer classification, State and local government.
  The coordinated effort shown on both applications likely originated 
from the same source who either personally completed them or gave 
instructions to others on how to complete them. Knowingly filing false 
information on a government document is illegal. No legitimate private 
business would be able to get away with this--what Congress did to gain 
access to this DC small business exchange--without facing serious 
penalties and serious adverse consequences.
  Maybe even more concerning than the information we see on these 
applications is the information we don't see because much of the 
documents Judicial Watch obtained--much of the information was redacted 
and blacked out. Redactions are a tool generally used to protect an 
individual's personal or confidential information. In this case, the 
redactions intentionally established additional obstacles for those 
seeking transparency and accountability regarding Congress's action. In 
other words, they just hide exactly who was responsible for submitting 
these blatantly false applications. The redacted applications are 
really a startling illustration of the extent to which Congress is 
willing to go in order to protect itself and its special perks and 
privileges.
  As chairman of the Small Business Committee, I am authorized to 
investigate ``all problems of American small business enterprises.'' 
For a large entity like Congress to improperly take advantage of 
systems in place that are meant for small businesses is really doubly 
insulting and within our jurisdiction.
  On February 3, 2015, I sent a letter to officials at the House of 
Representatives, the Senate, and the DC exchange authority requesting 
information that included copies of the nine pages of the applications 
we talked about unredacted. We wanted all the information with nothing 
blacked out.
  The Chief Administrative Officer for the House of Representatives 
declined to respond based on the claim that the Senate Small Business 
Committee lacked jurisdiction to investigate ``internal operations of 
the House of Representatives.''
  The clerk of the Senate Dispersing Office recited a background of the 
OPM rule and nothing more. In other words, they just stonewalled.
  Finally, the DC Health Benefits Exchange Authority refused to comply 
on the grounds that a pending lawsuit filed by Judicial Watch prevented 
it from doing so. In March of 2015, officials from that authority 
agreed to meet with my committee staff to discuss producing the nine 
pages of applications in their original, unredacted

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form, but at the meeting, these officials flatly refused to produce 
this, citing new privacy concerns.
  Followup correspondence with all three entities again yielded 
nonresponses--basically more stonewalling.
  During this time, I also sent three letters to then-OPM Director 
Katherine Archuleta requesting all communications between OPM and 
Members of Congress or officials at the White House regarding the final 
OPM rule. OPM failed to provide any of that information.
  The only viable option I could see to move forward with my 
investigation was compulsory means through the issuance of a subpoena 
to the DC Health Benefits Exchange Authority to get the nine pages of 
applications in their original form, unredacted, without protecting 
those responsible. In order to issue a subpoena, committee rules 
dictated that as chairman I would need either the consent of the 
committee's ranking Democratic member or the approval of a majority of 
the committee members, which would be 10 members.
  On April 23, 2015, I convened a committee business meeting that 
included deliberation and a vote on issuing that subpoena.
  As it turns out, Members, regardless of party, are willing to go to 
great lengths to protect their perks and taxpayer-funded subsidies, 
because the motion to issue the subpoena failed by a vote of 5 to 14, 
with five Republican Members--just the necessary number to stop the 
subpoena--joining all of the committee's Democrats to block the 
subpoena.
  Now, it is no surprise to anybody who knows me that we didn't stop 
there, that the committee investigation and the work didn't stop there.
  In February of this year, when the Senate Committee on Homeland 
Security and Governmental Affairs conducted a hearing on the 
President's nomination of Beth Cobert to become the permanent OPM 
Director, I again became engaged over this issue. In my numerous 
attempts to engage OPM in an honest conversation about how their final 
rule came to be, I never received any meaningful response. So I 
followed up with a letter to Ms. Cobert, who is serving as OPM's Acting 
Director. While her office did provide some useful information, her 
response largely failed to answer my questions.
  It is interesting that while all of this was going on, at the same 
time, everyone employed by Congress received a form from the IRS. It is 
called form 1095-C. Excuse me. It is an IRS form. It comes, in the case 
of the Senate employees, from the Senate Disbursing Office, and it 
confirms the obvious: that people who work in the Senate--Members, 
staff--and people who work in the House--Members, staff--are employed 
by a large employer.
  As the Presiding Officer may know, the Internal Revenue Code requires 
``applicable large employers,'' the definition of which is 50 or more 
full-time employees, to report information of offers of health coverage 
and enrollment in health coverage for their employees. So it demands 
this form, and everybody in the Senate and everybody in the House got 
this form.
  Now, this IRS form, sent to all Members and all staff, shows that 
everything we are talking about--the lie that enabled the Senate and 
the House to get on the DC small business exchange--was just that. It 
was a lie. It contradicts everything that was represented in that 
category. The Senate Disbursing Office submitted an application that 
said the Senate has 45 total employees to the DC small business 
exchange, but the same Senate Disbursing Office distributed an IRS form 
that labels the Senate a large employer with over 50 employees.
  So what is it? Well, it seems pretty clear. The IRS form is accurate. 
Obviously, the Senate and the House are large employers. The OPM rule 
allows the Senate to fraudulently claim to be a small business as part 
of this scam--Washington exemption from ObamaCare. OPM promulgated a 
rule that allows the Senate to purchase health insurance on a small 
business exchange. The law States that only small employers may 
purchase that on the exchange. The OPM rule just makes a mockery of the 
law and does this to establish that Washington exemption from 
ObamaCare.
  This is a lot to take in and certainly very confusing. That is why I 
asked the head of the IRS and the acting head of OPM to clarify this. I 
wrote to IRS Commissioner Koskinen in February: ``Can you confirm that 
the United States Congress''--the House and the Senate--``is a large 
employer?''
  Apparently, my pretty simple question didn't have a simple answer. 
The IRS responded that they had forwarded my question up the chain of 
command to the Department of the Treasury, and I still await Treasury's 
answer from February.
  I also asked OPM Acting Director Cobert: ``Can you confirm the 
position of the OPM as to whether Congress is a small business . . . or 
is it a `Large Employer' as indicated by the 1095C forms sent to 
Congressional employees?''
  OPM's response was this: ``OPM does not take the position that 
Congress is a small employer, nor has OPM taken such a position in the 
past. Nothing in the proposed or final rule indicates that Congress 
shall be considered a small employer. . . . ''
  Well, why the heck is Congress in a small business exchange limited 
under statute to 50 or fewer employees?
  It is then when I decided to place a hold on Ms. Cobert's nomination 
to become permanent OPM Director, and I continue to block that 
nomination because of OPM and her clear role in this flagrant abuse of 
power regarding Washington's exemption from ObamaCare.
  Her failure to revoke the illegal rule as well as her failure to 
disclose relevant information about the rulemaking process allows OPM's 
illegal rule to remain in place. This, in turn, allows Congress to 
continue to purchase health insurance on DC's small business exchange 
and to continue to receive a generous and illegal employer-
contribution, taxpayer-funded subsidy.
  My objective today remains what it has been for the last several 
years, and that is to flat out end Washington's exemption from 
ObamaCare. So I won't lift my hold on this nomination until we do that, 
until my colleagues have joined me in following the law, until OPM 
overturns its illegal rule--something of that sort. Yes, it is more 
expensive to purchase my health insurance on the exchange in Louisiana, 
but that is what the law dictates.
  I don't believe this body will find the overall fix to ObamaCare 
until it truly has to live under ObamaCare, and that starts with no 
special Washington exemption from ObamaCare--no special deal, special 
rule, or special subsidy for Congress.
  I don't particularly care if we fix this administratively or 
legislatively. I have certainly offered several legislative solutions 
in the past, but my colleagues seem to be intent on protecting their 
special perk and status.
  Now, if it is not for themselves, many say at least it is for their 
valued staff. On that point, I am willing to compromise. Every time a 
Member of Congress objects to my past proposals, they always talk about 
staff. We all value staff. I get that. Certainly, I agree with that 
sentiment. So I am willing to take staff out of it. That is a 
distraction to this debate.
  I am going to offer Members to take ownership and eat their own 
cooking--live by the ObamaCare statute, be treated as millions of other 
Americans are, and go to the ObamaCare exchanges with no special 
exemption, no special subsidy, no special deal, no special rule.
  We could start today and, by holding Congress accountable, accept 
that important victory and, certainly, release my hold on Ms. Cobert's 
nomination.
  With that end in mind, I have here a new bill focused on Members of 
Congress, the President, and the Vice President to end their special 
exemption from ObamaCare, and I will be formally introducing this 
legislation tonight. It is simply wrong for Washington insiders to 
carve out loopholes for themselves in order to avoid living under the 
laws Congress passes for the rest of America. This new bill, again, 
will cover Members of Congress, the President, the Vice President--not 
staff. We should do that as a minimum first step to live under the laws 
Congress passes on the rest of the country and live under the ObamaCare 
statute as it exists today.
  Now is the time for action. So I urge my colleagues to join me in 
taking this

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first step toward restoring the public's confidence in this body and 
the impartial rule of law. It is time to end the scam that is 
Washington's exemption from ObamaCare.
                                 ______