The fake newsers jumped to attack Republicans for allegedly carving members of Congress and their staff out of the latest amendment to the American Health Care Act, but the provision—which requires Congress and its staff to stay in the Obamacare exchange—is better understood as a carve-in.
Let’s look at what the amendment says:
This means that while some provisions of Obamacare, also known as the Patient Protection and Affordable Care Act (PPACA), can be waived by states under certain circumstances, this particular provision is not subject to waiver.
So what does PPACA 1312(d)(3)(D) say can’t be waived? It says Congress and its staff are required to lose their fancy Federal Employees Health Benefits Program (FEHBP) and go into the Obamacare exchange instead.
Here’s the text of the provision in its entirety:
Why would we possibly want anyone to be able to waive that provision, which would have the effect of releasing Congress from Obamacare back into gold-plated FEHBP? The MacArthur Amendment gets it right by guaranteeing Congress has to stay in the Obamacare exchange as long as such a thing exists. Carve-in, not carve-out.
The fake outrage calling this a carve-out carefully sidesteps that a corrupt, bipartisan backroom deal between House Speaker John Boehner, Senate Majority Leader Harry Reid, and President Obama in 2013 insulated Congress from fully feeling the pain of Obamacare under this provision and continues to do so.
Obama directed the Office of Personnel Management to issue a rule (78 Fed. Reg. 60653-01) purporting that Congress, which has thousands of employees, is a small business and therefore: “the DC Health Link Small Business Market administered by the DC Health Benefit Exchange Authority, is the appropriate SHOP from which Members of Congress and designated congressional staff will purchase health insurance in order to receive a Government contribution.”
This fraud of instructing Congress to masquerade as a small business was the key to blunting Section 1312(d)(3)(D) because if members of Congress and their staff had signed up for Obamacare under the individual exchange—as for any other American losing employer coverage—they would have had to pay their own premiums. Instead, their “small business” employer—the American taxpayer—is picking up 75 percent of the cost.
To implement this scheme, the House and Senate each filed a false declaration with the DC Health Benefit Exchange Authority claiming to have fewer than 50 employees, a fact that was never publicly disclosed. These fraudulent documents were uncovered by Freedom of Information Act litigation conducted by Judicial Watch.
The MacArthur Amendment is right to carve Congress into the Obamacare exchange as long as such a thing exists. But Congress members and staff should also be forced to stop pretending to be part of a small business and to pay their own premiums in the regular individual exchange. If they don’t like it, they should consider full repeal for everyone.
What President Obama did in directing the Office of Personnel Management to blunt Section 1312(d)(3)(D) can be reversed by President Trump at any time. He should do it now.