The rumors began trickling in about a week before the scheduled vote on April 23: Republican leadership was quietly pushing senators to pull support for subpoenaing Congress’s fraudulent application to the District of Columbia’s health exchange — the document that facilitated Congress’s “exemption” from Obamacare by allowing lawmakers and staffers to keep their employer subsidies.
The application said Congress employed just 45 people. Names were faked; one employee was listed as “First Last,” another simply as “Congress.” To Small Business Committee chairman David Vitter, who has fought for years against the Obamacare exemption, it was clear that someone in Congress had falsified the document in order to make lawmakers and their staff eligible for taxpayer subsidies provided under the exchange for small-business employees.
With nine Democrats on the committee lined up against the proposal, the chairman needed the support of all ten Republicans to issue the subpoena. But, though it seems an issue tailor-made for the tea-party star and Republican presidential candidate, Senator Rand Paul (R., Ky.) refused to lend his support. And when the Louisiana senator set a public vote for April 23, Majority Leader Mitch McConnell and his allies got involved.
“The amount of blood that McConnell and Paul spilled to prevent [the subpoena] from happening makes me wonder [if] maybe that isn’t all that there is to it,” the high-ranking staffer says.
Senate staffers, according to a top committee aide, reported seeing Missouri senator Roy Blunt make calls to at least two Republican committee members, lobbying them, at McConnell’s behest, to vote no on subpoenaing the exchange. By the time the committee was called to quorum, Enzi, Risch, Ayotte, and Fischer voted no.
To many observers, it was curious that any Republican would move to put the brakes on an investigation into Obamacare fraud, and particularly curious that they would pull back in an instance where the federal government was actually defrauding itself, one that so clearly illustrates Obamacare’s flaws by exposing the bureaucratic jujitsu and outright dishonesty required of federal employees themselves to navigate the law.
Conservative health-care experts can’t understand the reasoning behind the GOP senators’ opposition. They see politics and self-interest at play, and they allege that Republican leaders are as invested as their Democratic counterparts in maintaining their subsidies, fraudulently obtained, while avoiding scrutiny from an overwhelmingly disapproving American public.
“We deserve to know who signed that application, because they are robbing taxpayers,” says Michael Cannon, director of health-policy studies at the libertarian Cato Institute. The staffers who signed the fraudulent application, he says, “know who was directing them to do this. And so we have to follow the trail of breadcrumbs. This is the next breadcrumb, and whoever is farther up the trail wants to stop Vitter right here.”
The story of the ill-fated subpoena can be traced back to the debate over the Affordable Care Act, when Senator Chuck Grassley (R., Iowa) insisted that lawmakers and congressional staff join a health-care exchange set up under the bill. For government employees, that meant giving up government-subsidized health-care contributions of between $5,000 and $10,000 per person. The White House scrambled to find a way to allow congressional employees to keep those subsidies. In Washington, D.C., only the small-business exchange allowed them to do so. After secret meetings with House speaker John Boehner in 2013, President Obama instructed the Office of Personnel Management to allow Congress to file for classification as a small business, despite the fact that the law defines a small business as having no more than 50 employees and the House and Senate together employ tens of thousands.
After conservative watchdog group Judicial Watch obtained the application through a Freedom of Information Act request and discovered obvious signs of fraud, Vitter requested approval to subpoena an unredacted copy of the application. The value of that document, says Cannon, is that it would reveal the name of the person who filed it. “Now you’ve got someone to call to testify,” he says, predicting that testimony would precipitate a congressional vote on whether to end the congressional exemption altogether.
“I think it makes sense to find out what happened,” says Yuval Levin, the editor of National Affairs, a noted conservative health-care voice and a National Review contributor. “It would be pretty interesting to see whose name is on the forms,” he says. “It has to go beyond mid-level staffers.”
But some congressional Republicans, it seems, are also resistant to getting to the bottom of the mystery — or, at the very least, they are content to let sleeping dogs lie.
Committee rules for a subpoena require either the consent of the ranking member or a majority of the group’s 19 senators. Because Democrats quickly made their opposition clear, Vitter needed the approval of all ten Republicans. Nine of them quickly consented via e-mail; one senator was strangely unresponsive.
Senior committee aides say that Rand Paul’s staff didn’t immediately reply to an e-mail requesting the senator’s consent and, when they did, they refused to provide it. When Vitter attempted to set up a member-to-member meeting, his overtures were ignored or put off. Paul’s policy staff refused to take a meeting. When Vitter tried to confront Paul on the Senate floor, they say, the Kentucky senator skirted the issue.
It wasn’t until after the vote that Paul shared his reasoning. “Senator Paul opposes allowing Congress to exempt themselves from any legislation,” an aide told the Conservative Review. “To that end, yesterday, he reintroduced his proposed constitutional amendment to prohibit Congress from passing any law that exempts themselves. Senator Paul prefers this option over a partisan cross-examination of Congressional staff.”
But a constitutional amendment is a longshot that would take years, and it hardly precluded an investigation of congressional corruption here and now.“That’s absurd,” says Robert Moffit, the director of the Center for Health Policy Studies at the conservative Heritage Foundation. “You don’t need a constitutional amendment to get a subpoena . . . I don’t know where he’s coming from.”
“The answers he has given do not make sense,” Cannon says of Paul. “And when someone with his principles does something that is so obviously against his principles, and does not give an adequate explanation, you begin to think that politics is afoot. It would have to be someone very powerful that made him a powerful pitch — or threat — to keep him from doing this.”
Paul’s press secretary tells National Review that the senator “examines every opportunity to [oppose Obamacare] individually, and does not base his vote on requests made by other senators, including the majority leader.”
Asked whether McConnell pushed Paul or any other senator on the subpoena, a spokesman for McConnell says the majority leader “didn’t make any announcements when that committee voted.”
The flip-flopping Republicans justified their change of heart. Risch said in the April 23 committee meeting that legal wrangling with the D.C. exchange could take time away from the committee’s small-business work. Enzi said he saw little wrong with the application as is.
“Each of us has our own budget, each of us has our own staff,” he said. “I don’t know about everybody else, but I’m way under 50 [employees]. So my staff qualifies as a small business.”
Enzi was one of the original sponsors of Vitter’s 2013 amendment to end the congressional Obamacare exemption, but his press secretary tells National Review he felt the probe “could inadvertently target staff who simply completed paperwork as part of their job.” He insists that Enzi “made up his own mind.” Risch, Ayotte, and Fischer declined to comment.
A spokesman for South Carolina senator Tim Scott, who voted for the subpoena, says that nobody lobbied him one way or the other, while a spokesman for Florida senator Marco Rubio, who also voted in favor of the measure, declined to comment.
“The most powerful interest group in Washington D.C. is . . . members of Congress and their staffs. And when it comes to their benefits, they are all members of the same party.”
Health-care experts dismiss Enzi’s claim that each member’s office is its own small business, and not just because the health exchange application was filed for Congress as a whole. “These congressional offices that think they’re small businesses, are they LLCs?” Cannon asks. “Are they S-Corps? Are they shareholder-owned? Are they privately held? What is the ownership structure of this small business that you’re running, senator? It’s just utterly ridiculous.”
“They’re transparently absurd,” says Moffit of Senate Republicans claiming small-business status. “Who made the determination that Congress is a small business and is therefore eligible for subsidies that do not legally exist? How did that happen?”
No one quite knows what’s behind leadership’s apparent push to kill the subpoena. The move baffled some committee staffers. “The amount of blood that McConnell and Paul spilled to prevent [the subpoena] from happening makes me wonder [if] maybe that isn’t all that there is to it,” the high-ranking staffer says. “Maybe other people signed it . . . They’re clearly afraid of something bigger than a person’s name getting out there.”
Others, however, think the motives behind GOP leadership’s apparent obfuscation are clear. “If there’s one thing that absolutely drives Americans fundamentally crazy, it’s the idea that Congress can set one set of rules for themselves and another for everybody else,” says Moffit. “That’s political poison, and that’s why they have been so desperate to avoid the issue.”
“The most powerful interest group in Washington D.C., is not the Chamber or the unions or anyone else,” Cannon says. “It is members of Congress and their staffs. And when it comes to their benefits, they are all members of the same party.”
— Brendan Bordelon is a political reporter for National Review.
Update: A previous version of this piece said Senator Vitter’s staff tracked down Congress’s applications to the D.C. health exchange. In fact, it was the conservative group Judicial Watch that first obtained the applications through a FOIA request.