Holding Congress Accountable On The AHCA

The American Health Care Act (AHCA) that is now before the Senate after passing the House of Representatives would allow states to seek waivers from current federal standards for health insurance plans. While the Senate seems likely to make changes concerning the particular standards that can be waived, the AHCA’s waiver and other provisions are expected to cause premiums to increase and benefits to disappear for millions of Americans. Millions more will likely lose their insurance completely.

As originally drafted, the AHCA would have expressly exempted Members of Congress from these waivers, a provision that is so politically awkward that the House separately adopted a bill that would repeal the exemption by amending the AHCA if enacted. Rep. Martha McSally (R-Ariz.), who wrote the amendment, stated that it is intended to “ensure that Congress abides by the laws they pass and are treated no differently than other hard-working Americans.”

However, as the Washington Post has reported, it is unlikely that the amendment will actually do this. Under current federal regulations, Members of Congress buy their health insurance through the D.C. Health Exchange, and the D.C. government is unlikely to seek a waiver of current federal protections for residents and others who buy health insurance here. As a result, according to the Post, “lawmakers ... could end up with more robust and less expensive coverage than constituents in states that are not as friendly to Obamacare.”

Such preferential treatment for Members of Congress is clearly not what Congress intended when it overwhelmingly voted for McSally’s amendment. Nor is it likely to lead to the fairest health law: if Members of Congress know they will not be directly subject to the same rate increases and benefit cuts that their constituents will feel, they might make different judgments about what consumer protections are required.

Two entities have a responsibility to make sure that Congress’s intent that Members are in fact “treated no differently than other hard-working Americans” is actually implemented. One is the federal Office of Personnel Management (OPM), and the other is the District of Columbia. OPM could discharge this responsibility by directing Members of Congress to buy their health insurance in their states of residence, as opposed to the current rule that directs Members to buy their insurance through the DC Exchange.

If OPM did not take this step, the District of Columbia would have a constitutional obligation to ensure that Members of Congress do not access more favorable insurance through the D.C. exchange, because the Constitution empowers Congress to legislate for the District (Article I, Section 8, Clause 17). To do this, D.C. might redirect Members from the D.C. Exchange to the exchanges in their home States.

This redirection would not affect D.C. consumers, since Members of Congress comprise only a small percentage of the overall pool on the D.C. exchange—and the provision need not include congressional staffs, who are not mentioned in the stated intent for the amendment. This action by D.C. would honor Members’ intention to be subject to rules in their home States and, because it would help Members understand more directly the impacts of their legislation, the action might also benefit their States.

All of this seems like a good outcome for Congress, the District of Columbia, and the country. OPM and D.C. officials should consider how best to make it happen.