Sen. David Vitter, R-La., is continuing his legal battle over congressional members' and staffers' health care enrollment in the D.C. small business exchange by demanding answers to questions raised by an ongoing Obamacare lawsuit.
In a letter sent Tuesday to Mila Kofman, executive director of D.C. Health Benefit Exchange Authority; House Clerk Karen Haas; and Ileana Garcia, financial clerk for the Senate Disbursing Office, Vitter requested that officials answer questions and provide information previously redacted in documents. As chairman of the Senate's Small Business Committee, Vitter is seeking to prove officials knowingly mischaracterized Congress as a small business in the health care enrollment, violating D.C. law, which classifies a small business as one with 50 or fewer employees. Vitter points to questions raised in a taxpayer lawsuit that the watchdog group Judicial Watch filed against DCHBE in October . The suit argues members of Congress and their staff cannot enroll in the D.C. Small Business Health Option Program created by the Affordable Care Act because Congress is not a small business. In January, defendants in the case, including Kofman, acknowledged Congress is not a small business under District law, but said an Office of Personnel Management ruling instructing lawmakers and staffers to enroll in the exchange trumped the local provision.
The case is still playing out in the courts, but with his letter, Vitter is bringing the battle to Capitol Hill, and he said his chairmanship of the Small Business Committee gives him the authority to do so.
"Jurisdiction of the U.S. Senate Committee on Small Business and Entrepreneurship includes oversight responsibilities affecting or related to small businesses. According to the application DCHBE approved, that now includes Congress in this matter," Vitter wrote in the letter, which was shared with CQ Roll Call. "Allowing Congress to determine itself as a 'small business' should not have passed the common sense test."
In the letter, Vitter lays out four specific requests. First, that the DCHBE "expeditiously" facilitate a meeting in Vitter's office or over the phone "to discuss [its] role in approving Congress' 'small business' health care applications."
Second, Vitter is seeking answers about the congressional applications for enrollment in the small business exchange, which Judicial Watch obtained through the Freedom of Information Act and published online . Judicial Watch President Tom Fitton called them "smoking gun documents."
In the applications, the House and Senate claimed to have fewer than 50 employees and were also classified as “state/local government.” The institutions also did not list employees, as required by the application. Instead, the House listed its one employee as Twenty Congress, born Jan. 1, 1994. The Senate listed its employee as First Last, born Jan. 1, 1980. The electronic signatures, showing which congressional employees certified the application was valid, were redacted.
"These documents, that have been made public, prove that someone within Congress knowingly falsified information in order for Congress to keep their Obamacare subsidy," Vitter wrote. "We need to know who, immediately, so we can fix this injustice and eliminate the unfair practice."
Vitter is demanding that the House and Senate officials in charge of filling out those applications confirm which offices directed them to "falsify these applications."
His third request is that the DCHBE provide electronic and/or paper copies of the applications without redactions.
The Louisiana Republican's fourth request, though, is broader than the others. Vitter requested the congressional and District officials "cooperate with the Senate Small Business and Entrepreneurship Committee in its request to uphold federal law and only allow businesses with 50 or fewer full-time equivalent employees to participate in the D.C. Small Business Exchange." In other words, Vitter is requesting that Congress and its staffers not be allowed to enroll in the exchange.
Vitter asked that the officials comply with his requests by Friday, Feb. 13. But what happens if they refuse to comply? "We'll cross that bridge if we get there," Cheyenne Steel, a spokesperson for the Small Business Committee, wrote in an email Tuesday night, "but if they don't have anything to hide, this should be easy for them."
Vitter has consistently railed against the particulars of congressional health care enrollment under Obamacare. Vitter and other Republicans argue an OPM ruling that allowed members and staffers to keep their employee subsidies under Obamacare led to a misuse of taxpayer money. So Vitter has fought for legislation eliminating the employer subsidy for members of the federal government, but has not been successful. Vitter did have a recent victory though, when Senate Republicans adopted his non-binding resolution in December, which said all GOP staffers, including leadership and committee staff, should enroll in Obamacare.
"Washington should have to live under Obamacare just like everybody else until we repeal it," Vitter said in a statement after the resolution was adopted. "And we won’t be complicit in Obama’s illegal rule designed to protect Washington insiders.”
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