2018 MIDTERM ELECTION

Time: D H M S

Oops. Guess which OTHER part of Obamacare CAN'T be repealed w/out Dem votes?

NOTE: I've asked Nicholas Bagley, law professor at the University of Michigan, to chime in to make sure I have everything below correct. I'll post an update if I have any of the details wrong.

UPDATE: OK, I've heard back from Bagley; he confirms that yes, I have it right:

"Yes [you have it correct]. Because of the Byrd rule, the big risk isn't legislative repeal...There are two real risks. First, that the individual mandate is repealed, destabilizing the DC exchange....Second, that Trump changes the OPM rule enabling the feds to cover the costs of congressional insurance."

Over at Daily Kos, diarist "Just Saying" posted a diary yesterday which reminded me of a rather silly ACA provision which I had completely forgotten about:

This is section 1312(d)(3)(D) of the Affordable Care Act. The so-called “Grassley Amendment” says that members of Congress and their staff may only get their health insurance through the exchange or on the individual market. No Federal Employees Health Benefit Plan for them!

Republicans would like to use the budget reconciliation process to repeal the Affordable Care Act (ACA). That process allows both houses of Congress to pass legislation with only a simple majority, effectively bypassing the Senate’s filibuster/cloture rules. But, under The "Byrd Rule" (2 U.S.C. § 644), with limited exceptions, Republicans can only repeal those provisions of the ACA that do "not produce a change in outlays or revenues". So, for example, using budget reconciliation, they might be able to repeal the ACA's surtax on high earners, to repeal funding for subsidies for insurance bought on the exchanges, and to repeal tax penalties for the employer and individual mandates.

The "Grassley Amendment" is one of the very few Republican tweaks which actually did end up becoming part of the ACA. It was really intended to be nothing more than a showboating gimmick by Sen. Chuck Grassley of Iowa; he was trying to "prove" that the Democrats were hypocrites, by forcing them to "eat their own dog food", so to speak. Instead, the Dems called Grassley's bluff:

Members of Congress are treated differently under Obamacare, but they're not exempt. In fact, by forcing them to purchase health insurance through publicly run exchanges, they're impacted more by that key provision than similar employees in private sector — or even in government.

. . . . Here's the history: During the 2010 debate over the Affordable Care Act, Sen. Chuck Grassley, R-Iowa, proposed an amendment requiring members of Congress and their staffs to purchase health insurance though state exchanges. Democrats, viewing the amendment as a political stunt, co-opted the idea as their own and inserted it into the bill.

This, by the way, is the reason why the District of Columbia ACA exchange has an absurdly high number of people enrolled in their SHOP ("small business") exchange:

  • 38,468 people have enrolled in private health plans through the individual and family marketplace;
  • 175,012 people have been determined eligible for Medicaid coverage; and
  • 49,448 people have been enrolled through the small business marketplace (includes Congressional enrollment)

A huge chunk of those 49,448 SHOP enrollees are, as noted, actually Congressional staffers and their families. Yes, that's right: For purposes of the ACA, "Congress" is legally defined as a "small business". There was a lawsuit over this and everything, but I believe in the end that definition stood.

Result (via a 2014 Roll Call article)?

When asked for a comment on the lawsuit's charges, a spokesperson for the D.C. Health Benefit Exchange Authority said, “We cannot comment on pending litigation." Since the health care rollout last year, 12,359 members of Congress, staffers and their spouses and dependents enrolled in the D.C. small business exchange, comprising 85% of small business enrollees.

I'm a little confused about the exact numbers. According to Wikipedia, there's actually a good 24,000 or so Congressional staffers; if you include their spouses/children, that would be something like 50,000 people, especially if you include some members of Congress themselves, although they might be enrolled via other ACA exchanges. Whatever the hard number, they're all now legally required to use the ACA exchanges instead of the Federal Employee Health Benefit Plan which every other federal employee can use.

UPDATE: I also received this tidbit from Matthew Martin via Twitter, which makes sense to me:

@charles_gaba most of the missing staffers enrolled in a family member's employer plan instead of the SHOP plans pic.twitter.com/3W33VwgS9y

— Matthew Martin (@hyperplanes) January 4, 2017

To be clear: They don't have to enroll via the exchange; they could go off-exchange and enroll directly through a private carrier, just like 7 million or so other people do. [edit: many of them can also use a spouse's employer plan, as noted above] However, I'm pretty sure that doing so means that, just like the rest of us, they wouldn't receive any financial assistance if they go off-exchange and would have to pay full price.

For Senators or Representatives, this wouldn't be a big deal; they earn $174,000/year anyway. For their staff, however, it's a different story:

Turnover is so high, in fact, that 46%of staffers would look for a new job within a year due to a “desire to earn more money,” according to a study cited by The Hill. That’s understandable considering that the median pay for staff assistants—the most common position in the House’s workforce—is $30,000 per year, according to The Washington Times.

...A glance at the numbers above shows that salaries for congressional staffers are not always in the common $30,000 to $50,000 range. The member with the highest average salary for his employees, Rep. Rob Bishop, pays his staff an average of $81,000. And of the ten members above, none pays an average salary of less than $69,000. But not all reps compensate their staff so generously. Of the 30 reps who pay their staff the least, none exceeds an average of $41,000.

OK, so if the Republicans repeal the law, the Grassley Amendment is killed as well, allowing Congressional staffers to move back onto the FEHBP, right?

Nope. Or at least, not without at least 8 Democratic Senators joining all 52 Republicans. Remember, the reconciliation process (simple majority vote) only allows Congress to repeal certain parts of the ACA...but not others. As Just Saying notes:

Republicans would like to use the budget reconciliation process to repeal the Affordable Care Act (ACA). That process allows both houses of Congress to pass legislation with only a simple majority, effectively bypassing the Senate’s filibuster/cloture rules. But, under The "Byrd Rule" (2 U.S.C. § 644), with limited exceptions, Republicans can only repeal those provisions of the ACA that do "not produce a change in outlays or revenues". So, for example, using budget reconciliation, they might be able to repeal the ACA's surtax on high earners, to repeal funding for subsidies for insurance bought on the exchanges, and to repeal tax penalties for the employer and individual mandates.

However, using budget reconciliation, they cannot repeal the Act's requirement that insurance be sold without regard to health (pre-existing conditions) and other ratings, nor can they repeal the requirement that members of Congress and their staff buy their health insurance on the individual market. To change these non-budgetary provisions, they wlll need Democratic support.

So, if this reasoning is correct, thousands of Congressional staffers (and their spouses/children) would suddenly find themselves faced with having to buy coverage at full price on the open, private, unsubsidized, post-ACA market. I'm guessing they wouldn't like that one little bit. Can't imagine why...