A famous­ly frac­tious Con­gress has at last found com­mon cause: get­ting out from under the Oba­macare pro­vi­sion that would take away their health insur­ance sub­si­dies. [Cred­it: sightsonpennsylvania.blogspot.com]

[NOTE: This post has been updat­ed to reflect recent devel­op­ments.]

Con­gress hasn’t been this unit­ed since the Ger­mans bombed Pearl Harbor.

Its 535 Mem­bers — com­pris­ing dif­fer­ent polit­i­cal par­ties, ide­olo­gies, races, gen­ders and geo­graph­ic inter­ests — and its thou­sands of aides are fix­at­ed on a sin­gle thing.

Immi­gra­tion reform? Unrest in Egypt? The loom­ing debt ceil­ing expi­ra­tion with its prospect of US gov­ern­ment default?

Nope. What keeps your elect­ed rep­re­sen­ta­tives up at night is sec­tion 1312(d)(3)(D)(i) of the Patient Pro­tec­tion and Afford­able Care Act (PPACA),  more com­mon­ly known to its enthu­si­asts and detrac­tors as Oba­macare. That pro­vi­sion reads:

“(D) MEMBERS OF CONGRESS IN THE EXCHANGE- (i) REQUIREMENT- Notwith­stand­ing any oth­er pro­vi­sion 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 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).”

Politi­co touched off a storm of denials when it report­ed last April that Con­gres­sion­al lead­ers were meet­ing pri­vate­ly, search­ing for ways to exempt them­selves from this Oba­macare require­ment.  Mem­bers of both par­ties rushed to the near­est micro­phone to pro­claim that they would nev­er con­sid­er such a thing. An unnamed Demo­c­ra­t­ic aide summed up Con­gres­sion­al reac­tion when he told The Hill, “Nobody is exempt­ing any­body from any­thing.”

That depends on how you define the word “exempt.”

In one sense, the state­ment is true. Vir­tu­al­ly no one is exempt from Oba­macare. All God’s chil­dren, it seems, are with­in its capa­cious grasp. Accord­ing to the Admin­is­tra­tion, even French employ­ees at a facil­i­ty in Bahrain owned by an Amer­i­can com­pa­ny are ensnared in its ten­ta­cles. Democ­rats who want to estab­lish a nation­al his­tor­i­cal park on the moon (HR 2617) have not yet con­ced­ed that Obamacare’s require­ments are con­fined to our plan­et.  Per­haps not even the sky is its limit.

Mem­bers of Con­gress are will­ing to con­cede that they and their staffers can only obtain insur­ance cov­er­age through the new Oba­macare exchanges. That’s a big con­ces­sion. Con­gres­sion­al employ­ees cur­rent­ly par­tic­i­pate in the Fed­er­al Employ­ees Health Ben­e­fits plan (FEHB). That pro­gram offers them a broad array of options, with a long list of insur­ers offer­ing dif­fer­ent ben­e­fit pack­ages that enable each per­son to choose what he or she thinks best suits their needs and the needs of their families.

The law’s clear lan­guage, every­one con­cedes, ban­ish­es them from the Eden of the FEHB to the Sinai of gov­ern­ment-run exchanges.

The exchanges offer lim­it­ed choice. Each state gov­ern­ment pre­scribes an “essen­tial health ben­e­fits” pack­age in accor­dance with fed­er­al reg­u­la­tions. Every insur­er that offers cov­er­age (and there appar­ent­ly won’t be many insur­ers that do)  in an exchange sold in that state will offer the same pack­age of ben­e­fits. Only cost-shar­ing can vary. There will be four lev­els of cost-shar­ing, but only one pack­age of benefits.

When leg­isla­tive branch employ­ees move on Jan­u­ary 1 from the FEHB with its myr­i­ad choic­es to the Sovi­et-style menu offered in the exchanges, it will be like going from Baskin and Rob­bins to an ice cream shop that serves only vanil­la in four dif­fer­ent sized cups. But since they’re herd­ing mil­lions of their con­stituents into that same drea­ry ice cream shop and threat­en­ing to sic the IRS on those who resist, Mem­bers are will­ing to smile and pro­claim that vanil­la is their very favorite fla­vor and that choos­ing among all those oth­er fla­vors is just such a waste of time.

Mem­bers will give up choice. But they don’t want to give up their subsidies.

In the FEHB, the gov­ern­ment picks up, on aver­age, 72 per­cent of their pre­mi­ums, depend­ing on which plan they choose. A Mem­ber of Con­gress enrolled in fam­i­ly cov­er­age under the Blue Cross-Blue Shield Stan­dard Stan­dard Option, is pay­ing an annu­al pre­mi­um this year of around $5200.  The gov­ern­ment is pick­ing up the rest. Absent the 72 per­cent sub­sidy, the annu­al pre­mi­um for that same cov­er­age would be near­ly $18,600.

That’s a huge dif­fer­ence in price and it’s why Mem­bers are eager to get an exemp­tion that will let them keep the FEHB sub­si­dies even though Oba­macare ban­ish­es them from the FEHB.

The Act itself couldn’t be more clear. Insur­ance poli­cies offered through the exchanges are “the only health plans that the gov­ern­ment may make avail­able to Mem­bers of Con­gress and con­gres­sion­al staff.” Peri­od. That means they can no longer par­tic­i­pate in the FEHB through which they receive sub­si­dies. There is no pro­vi­sion of law that allows them to keep these FEHB sub­si­dies when they buy cov­er­age in the exchanges.

Mem­bers of Con­gress, of course, have the pow­er to amend the law to keep their sub­si­dies. Sure­ly their con­stituents would under­stand when they vote them­selves thou­sands of dol­lars in annu­al gov­ern­ment assis­tance. Then again, maybe not.

So they’re hop­ing that the Admin­is­tra­tion will qui­et­ly give them an exemption.

It wouldn’t be the first time that the Oba­ma Admin­is­tra­tion found a way around an unpleas­ant pro­vi­sion of Oba­macare. It has grant­ed numer­ous waivers, exemp­tions and delays since the law was passed more than three years ago. They exe­cut­ed three such end-runs over the week-long Inde­pen­dence Day Con­gres­sion­al recess alone. One delayed until 2015 the col­lec­tion of infor­ma­tion from busi­ness­es need­ed to enforce the “employ­er man­date,” tax penal­ties on firms with more than 50 full-time work­ers who do not pro­vide cov­er­age to their employ­ees.  Then on Fri­day after­noon, July 5, a Trea­sury Depart­ment offi­cial took to his blog to announce that peo­ple who apply for sub­si­dized cov­er­age through the exchanges would be on the “hon­or sys­tem” next year, waiv­ing a require­ment that their income claims be cross-checked with their employ­ers’ records.  [The House may vote this week on a bill that would for­mal­ly delay the employ­er man­date and on a sep­a­rate bill that would delay the indi­vid­ual mandate.]

Less well noticed was an HHS announce­ment slipped out the door on the pre­vi­ous Fri­day, pro­hibit­ing insur­ers from charg­ing smok­ers high­er pre­mi­ums, despite a pro­vi­sion of Oba­macare that autho­rizes them to do so (new sec­tion 2701(a)(1)(A)(iv) of Pub­lic Health Ser­vice Act).  Why would anti-tobac­co jihadists in the Oba­ma HHS give smok­ers a break? It seems that the pro­vi­sion is com­pli­cat­ed by anoth­er stip­u­la­tion in the sprawl­ing law, and “because of a sys­tem lim­i­ta­tion,” if an insur­er tries to assess the high­er pre­mi­um on an old­er smok­er, “the sub­mis­sion of the (insur­er) will be reject­ed by the sys­tem.”  Damn computers.

Since the Admin­is­tra­tion is dis­pens­ing waivers and exemp­tions the way Renais­sance Popes once dis­pensed annul­ments and indul­gences, why can’t Con­gress get one?

Per­haps at 5:30 on the Fri­day before Labor Day, the Spe­cial Assis­tant to the Deputy Assis­tant to the Under­sec­re­tary of some­thing or oth­er could post a blog announc­ing that Con­gres­sion­al employ­ees can keep their sub­si­dies next year after all. Repub­li­cans could huff that the Pres­i­dent lacks legal author­i­ty to issue the exemp­tion, Democ­rats could defend him, and togeth­er they could cash their sub­si­dies at the exchanges come Jan­u­ary 1.

Mem­bers could jus­ti­fy such action by recit­ing the law’s core men­dac­i­ty: if you like what you have, you can keep it. We like our sub­si­dies, so we’ll keep them.

Mil­lions of Amer­i­cans already have found that they can’t keep what they like. Mil­lions more will dis­cov­er the slogan’s worth­less­ness soon enough. Peo­ple who have cov­er­age in the indi­vid­ual mar­ket will find that the new “essen­tial health ben­e­fits” will cost much more than the cov­er­age they will be required to for­feit.  Small busi­ness­es will be required to buy cov­er­age through the new exchanges, instead of renew­ing their exist­ing poli­cies (1311(d)(2)(B)(i)).   Seniors on Medicare Advan­tage will see their pre­mi­ums rise and, in many cas­es, their plans dis­ap­pear once the health care law’s dra­con­ian cuts are allowed to bite. Peo­ple enrolled in employ­er-spon­sored plans that are deemed by the gov­ern­ment to pro­vide “excess ben­e­fits” (i.e., cov­er­age that the gov­ern­ment con­sid­ers over­ly gen­er­ous) will see those ben­e­fits sub­ject to a 40 per­cent excise tax begin­ning in 2018 (sec­tion 9001).  The list goes on.

With all of these cat­e­gories of peo­ple los­ing what they liked, why shouldn’t the law’s archi­tects for­feit their subsidies?

My guess is that Con­gress will get its exemp­tion, and I’m not sure that’s such a bad thing. I am a retired fed­er­al employ­ee who worked 18 years in the gov­ern­ment, 10 of them as a Sen­ate aide. As such, I par­tic­i­pate in the Fed­er­al Employ­ees Health Ben­e­fit plan. The health law does not change that for me. My for­mer col­leagues are, almost to a per­son, ded­i­cat­ed, tal­ent­ed and hard-work­ing. Like tens of mil­lions of Amer­i­cans, their employ­er con­tributes to their health cov­er­age. They shouldn’t lose their employer’s con­tri­bu­tion because of a flawed pro­vi­sion in a vast and poor­ly writ­ten law.

That said, they are the ones who wrote that law. And mil­lions of oth­er Amer­i­cans are – or soon will be – adverse­ly affect­ed by it. Con­gress and the Admin­is­tra­tion have expressed lit­tle sym­pa­thy for them and have cho­sen to let most of its oner­ous pro­vi­sions stand.

Obamacare’s Con­gres­sion­al sup­port­ers are under­stand­ably more pre­oc­cu­pied with the law’s adverse effects on them­selves than with its adverse effects on oth­ers. Yet there is some­thing at least vague­ly hyp­o­crit­i­cal about seek­ing to exempt them­selves from the unpleas­ant con­se­quences of a law they wrote while sub­ject­ing oth­ers to it.

Per­haps this is a teach­able moment for Con­gres­sion­al Democ­rats. Oba­macare’s tan­gle of rules and man­dates restricts indi­vid­ual choice on the the­o­ry that such restric­tions best serve col­lec­tive needs. Mem­bers who sup­port the law are supreme­ly con­fi­dent that it is exquis­ite­ly con­ceived, its every anom­aly an essen­tial part of a seam­less whole. Peo­ple who object to the law don’t under­stand it. They need only trust and obey to expe­ri­ence its benefits.

All that changes when it comes to the one pro­vi­sion that affects Con­gress direct­ly. Mem­bers who favor the law dis­miss the con­cerns of busi­ness­es, while fret­ting over the law’s effect on their own “busi­ness­es.” They fear it might result in a Capi­tol Hill “brain drain,” with key staff and per­haps some Mem­bers them­selves decid­ing to quit once the “Afford­able Care Act” makes their health insur­ance unaf­ford­able. They need an exemption.

Instead of insist­ing on spe­cial treat­ment for them­selves, they might con­sid­er treat­ing every­one equal­ly. They should delay imple­men­ta­tion of the law – for everyone.

UPDATE (8/3/13): As expect­ed, Con­gres­sion­al employ­ees will be able to keep their employ­er-spon­sored sub­si­dies when they buy their insur­ance cov­er­age through exchanges.  The exemp­tion, accord­ing to numer­ous reports that have been con­firmed by the White House, will become offi­cial next week in a reg­u­la­tion to be issued by the Office of Per­son­nel Man­age­ment (OPM). 

The pol­i­cy is direct­ly con­trary to the law Con­gress wrote.  That law kicks them and their staff mem­bers out of the fed­er­al employ­ees health ben­e­fit plan, with its choic­es and sub­si­dies.  There is no statu­to­ry basis for keep­ing the sub­si­dies once they are expelled from that pro­gram and forced to buy insur­ance through the indi­vid­ual exchanges.

Con­gres­sion­al employ­ees will be treat­ed dif­fer­ent­ly than oth­ers in those exchanges; no oth­er per­son will be able to receive sub­si­dies from their employ­ers when they buy insur­ance in the indi­vid­ual exchange. 

Fed­er­al (as opposed to employ­er) sub­si­dies in the exchanges are based on income.  But not for Con­gres­sion­al employ­ees, evi­dent­ly.  Rank and file Sen­a­tors and Rep­re­sen­ta­tives make $172,000 in 2013.  Their high­est-paid staffers make only slight­ly less.  Next Jan­u­ary, they will receive larg­er gov­ern­ment sub­si­dies (72 per­cent of the pre­mi­ums, on aver­age, through the FEHB) than indi­vid­u­als earn­ing a frac­tion of what they make and who buy the very same cov­er­age in the very same exchanges. 

I should empha­size that the reg­u­la­tion still has not been released, so its details are still not entire­ly clear.  A Con­gres­sion­al staffer who claims to be famil­iar with the rule’s con­tents has tweet­ed that it will allow each Mem­ber to “decide if their staff should receive the employ­er con­tri­bu­tion.”  If true, that would both cre­ate new oppor­tu­ni­ties for polit­i­cal the­ater and fur­ther show just how priv­i­leged a posi­tion Con­gres­sion­al employ­ees will enjoy rel­a­tive to the rest of the pop­u­la­tion, who will not get to pick and choose which of the law’s require­ments they will obey.

Iron­i­cal­ly, even some Repub­li­cans who want to repeal Oba­macare have embraced this spe­cial deal for them­selves and their staffs.  That may change over Con­gress’s 5‑week hol­i­day.  But, for now, it appears that many Mem­bers of both par­ties are fine with this cozy lit­tle deal.