LAS VEGAS — “All I did was follow the law,” protested Sen. Harry Reid.
He was being pressed by Reno-area reporters last week about a story CNN had just broken.
“Democratic Senate Majority Leader Harry Reid, one of Obamacare’s architects and staunchest supporters” — wrote CNN investigative correspondent Chris Frates — “is also the only top congressional leader to exempt some of his staff from having to buy insurance through the law’s new exchanges.”
At first Reid told Reno media that CNN had gotten the story wrong. “No, that is simply not true,” he said. “Some of the people on my leadership team have done the same thing, following my lead. CNN is wrong.”
However, the CNN story didn’t refer to people on Reid’s “leadership team.”
The story focused upon the four leaders of the U.S. Senate and U.S. House: Senate Majority Leader Reid, GOP House Speaker John Boehner, House Democratic Leader Nancy Pelosi and Senate Republican Leader Mitch McConnell.
According to CNN, aides to the three other leaders said their leaders had directed all their staffers to join the exchange.
Reid, however, kept contending that he’d had no alternative — an allegation that won him two Pinocchios from Washington Post fact checker Glenn Kessler earlier this week.
“All I did was follow the law,” Reid insisted. “The law says that if you have committee staff, leadership staff, they stay where they are. If you have other staff, which is most everyone, they go to the exchanges.”
What Reid did not acknowledge to reporters, however, was that he himself had selected and placed into law the provision he now says compelled him to exempt his top committee staffers.
Some background: In 2009, the U.S. Senate had two competing health-care bills — one from the Health, Education, Labor & Pensions Committee (HELP) and one from the Finance Committee. Each bill had been amended in committee by its Democrat majority, adopting Republican amendments, to require lawmakers and their staffers to get coverage through the same proposed insurance exchanges to which the Democrat majority in the Senate intended to subject millions of Americans.
However, the two amendments differed in how they defined congressional staff. Thus Senate Majority Leader Reid — who was operating in secret with some of his top lieutenants to fashion one final piece of legislation from the two different bills — was able to pick and choose among the elements he wanted in his final package.
The amendment in the HELP bill had been introduced by Sen. Tom Coburn, R-Okla. It defined “congressional staff” to mean “all full-time and part-time employees employed by the official office of a Member of Congress, whether in Washington, DC or outside of Washington, DC.”
The amendment in the Finance bill had been introduced by Sen. Charles Grassley, R-Iowa. It defined a “congressional employee” more broadly — as “an employee whose pay is disbursed by the Secretary of the Senate or the Clerk of the House of Representatives.”
The language that Reid included in his conglomerate bill — which he named the “Patient Protection and Affordable Care Act” — was the vaguer language from the HELP committee. And that language was still in the bill on March 23, 2010, when the conglomerate bill was signed into law by President Barack Obama.
Sen. Reid ducked another important part of the story when he asserted he’d been compelled to exempt his most highly paid and powerful leadership staffers from the frustrations and high costs of Obamacare and allow them to continue enjoying their top-of-the-line federally subsidized Cadillac insurance plans.
In actuality, the most relevant federal bureaucracies had pushed the issue right back into Reid’s own lap. The most prominent of these was the federal Office of Personnel Management — which politicians in the Senate and the House had hoped would somehow get them off the hook on the politically sensitive issue.
A memo from OPM states: “OPM will not interfere in the process by which a Member of Congress may work with the House and Senate Administrative Offices to determine which of their staff are eligible for a Government contribution towards a health benefits plan ….
“Nothing in this regulation limits a Member’s authority to delegate to the House or Senate Administrative Offices the Member’s decision about the proper designation of his or her staff.”
The Senate Administrative Office, too, had kicked the issue back to Reid. “Guidance” by the Senate Financial clerk merely offered to hold a Member’s hand and serve as a sounding board for what would finally be only the Member’s decision.
Thus, in both cases, writes the Post’s Kessler, “lawmakers are given the option to designate which staffs will be covered by exchanges. If the lawmaker chooses to do nothing, then the administrators will make the determination as to which staff members are personal and thus should go on the exchange.
“Pelosi, Boehner and McConnell looked at this guidance and decided that all of their staff, personal and leadership, should go on the exchanges, aides said. News reports indicate a number of other top Democrat leaders, such as Sen. Richard Durbin (D-Ill.) and Sen. Patty Murray (D-Wash.), also placed all of their staff on the exchanges.”
Reid spokesman Adam Jentleson later told Kessler that Reid’s office had had “a number of conversations with the Secretary of the Senate and Senate Legal Counsel concerning” the Coburn language that Reid had placed in the PPACA conglomerate bill.
“We were … advised that covering all staff through the exchanges could expose the Senate to possible legal action,” said Jentleson. “On this basis, we were advised by Senate Legal Counsel against putting all staff into the exchanges.”
So did Reid, a lawyer, select language for his PPACA that “could expose the Senate to possible legal action” if he placed his most highly compensated staffers in the health-care exchanges that they, with Reid, had helped design?
“The bottom line,” concludes Kessler, “is this: Reid is essentially claiming he had no choice. He may have had a basis for this decision. But, judging from the way that many of his colleagues have handled this, he did have a choice, potential lawsuit or not.”
Steven Miller is the managing editor of Nevada Journal, a publication of the Nevada Policy Research Institute. For more in-depth reporting, visit https://nevadajournal.com/ and http://npri.org/.
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