Congress and Obamacare: Another Escape Hatch for Members and Staff

Robert Moffit /

If Members of Congress and staff don’t like being enrolled in Obamacare, they can retire. If they qualify as retirees, Members and staff can then continue to get their health insurance coverage in the popular and successful Federal Employees Health Benefits Program (FEHBP), the largest group health insurance program in the world.

The FEHBP, which covered all Members of Congress and most congressional staff until this year, is a great benefit of federal employment. It operates as a defined-contribution program for health insurance, much like Medicare Part D, and enables enrollees to pick and choose among a wide variety of competing health plans, including health savings accounts.

The Office of Personnel Management (OPM) confirmed the legitimacy of the congressional retirement option in October 2013. But the right of Congressmen, Senators, and staff to retire and get FEHBP benefits and subsidies was not really controversial. Last August, The Heritage Foundation also determined that OPM could exercise legitimate authority over the terms and conditions of congressional retirement, just like the retirement of any federal employee.

The hot button issue is OPM’s arbitrary and illegal decision to authorize, through regulation, the provision of special taxpayer subsidies for Congress and staff to offset their higher insurance costs in the Obamacare exchanges.

When congressional leadership suddenly realized that, in enacting Obamacare in 2010, they had voted themselves and their staffs out of their own health coverage, they desperately tried to find a way out of their predicament without embarrassing themselves. So President Obama’s OPM ruled last August that Congressmen and Senators and their staffers could continue to receive their previous employer subsidies—at the expense of the taxpayers—even though they were no longer in their previous employer plan. This action is without statutory authority, either in Obamacare or Title V, the law that governs the FEHBP. It’s another classic instance of Washington’s ruling class giving itself special treatment denied to all other Americans.

With the Obama Administration, such blatant unfairness in the application of the health law has become almost routine. The good news is that taxpayers have elected representatives who are prepared to rectify this particular inequity. Senator David Vitter (R–LA) has proposed an amendment that would nullify the OPM rule and ensure that Members of Congress and staffers enrolling in the exchanges are treated like all other Americans. Senator Ron Johnson (R–WI) has also filed suit to overturn the OPM ruling. Whatever the outcome, the Obama Administration and its allies in Congress are likely to lose big in the stern court of public opinion.