"It's not that Congress is thinking about exempting itself from the Affordable Care Act," said Tim Jost, a professor of law at Washington and Lee University and leading expert on the health care reform law, which he supports. "It's just that Congress members and staffers were the only people in the entire country who were required to buy from the exchange. So in a sense repealing that provision would be like leveling the playing field."
Starting in 2014, thanks to an amendment Sen. Chuck Grassley (R-IA) successfully inserted into the Affordable Care Act to put Democrats in a political bind, members of Congress and personal staff -- not committee staff -- will be dropped from their federal health plan and have to buy insurance on state exchanges, which will launch next year.
But they're now realizing that executing Grassley's measure is easier in theory than it is in practice. The problem is that the statute is not explicit about if and how much Congress is allowed to spend to help lawmakers and aides buy insurance, Jost said.
And on top of that, it doesn't apply to everybody on Capitol Hill.
"I don't know what the motivation was in writing that piece to treat some members of Congress and some employees differently," House Minority Leader Nancy Pelosi (D-CA) said Thursday at her weekly press briefing. "You work for a committee or leadership you are treated differently than if you work for a member's office. I think that whatever the outcome is, people have to be treated the same."
Jost said he thinks members of Congress should try to fix problems affecting the market rather than escape them. "I don't have a lot of sympathy for them," he said. "But for staffers I can see why it's a problem. If the insurance rates go up for young people and they're buying on the individual market, that's not the deal they signed up for." He added that he sees some flexibility in the statute for Congress to contribute to employee plans.
Senate Majority Leader Harry Reid (D-NV) also suggested there's a way around the problem without a legislative fix, which Speaker John Boehner (R-OH) all but ruled out Thursday.
"The Speaker would like to see resolution of this problem, along with the other nightmares created by Washington Democrats' health law, which is why he supports full repeal," Boehner spokesman Michael Steel said in an email Thursday. "In the meantime, it is Democrats' problem to solve. He will not sneak any language into bills to solve it for them -- and the Democratic leadership knows that."
A non-legislative solution will require the Office of Personnel Management, which handles Congressional compensation, to rule that the law provides the federal government the flexibility it needs to continue contributing to federal employees' health care plans when they transition to the exchanges. Reid's office is nudging OPM in that direction.
"Senator Reid is committed to ensuring that all members of Congress and Congressional staff experience the benefits of the Affordable Care Act in exactly the same way as every other American," Reid spokesman Adam Jentleson said in a statement. "He believes that this is the effect of the legislation as written, and that therefore no legislative fix is necessary. There are not now, have never been, nor will there ever be any discussions about exempting members of Congress or Congressional staff from Affordable Care Act provisions that apply to any employees of any other public or private employer offering health care."