Republicans huddled Wednesday morning in the basement of the Capitol, their first meeting following a two-week recess, and emerged with mixed messages about a provision in the latest version of their Obamacare repeal bill that could exempt members of Congress and their staffers from some of the most radical changes to the law.
Those changes—drafted in hopes of bringing the American Health Care Act back from the political grave—include the ability for states to waive certain regulations, allowing insurers to charge older and sicker patients much more for coverage, and allowing states to require insurance plans cover fewer essential health benefits.
The text of a new amendment released Tuesday night includes a carve-out for members of Congress, allowing them to retain all of the essential health benefits and cost protections under the Affordable Care Act.
Several members of Congress, all of whom are required by law to be on D.C.’s health care exchange, admitted Wednesday that they have no idea if they can be protected from these waivers.
“I don’t know about that. That’s a good question,” said Rep. Scott Desjarleis (R-TN).
“I’ll have to read the language more closely,” answered Rep. Morgan Griffith (R-VA).
“I didn’t know there was [an exemption for members of Congress]. I don’t know what you’re talking about,” Rep. Chris Collins (R-NY) told reporters.
Even the author of the amendment in question, Rep. Tom MacArthur (R-NJ), had to be warned on the elevator ride down to the conference meeting by a staff member that the press had discovered what he called the “obscure” exemption provision and would likely be grilling lawmakers about it.
He later released a statement saying he is working to fix the language in question.
New: Rep. MacArthur puts out statement saying Congress shouldn’t get special treatment, they are working to fix exemption. pic.twitter.com/790KTUVplF
— Sarah Kliff (@sarahkliff) April 26, 2017
Rep. Mark Meadows (R-NC), the leader of the right-wing House Freedom Caucus, was one of very few who had an answer ready. He argued to reporters that because D.C. is not a state, it cannot apply for or receive the same waivers states can under their bill.
“If Speaker Ryan is Governor of the state of D.C., yes, I might be able to get an exemption,” he joked. “I don’t worry that Washington D.C. is going to be a state while I’m in Congress and so me getting a waiver based on Washington D.C. being a state is something that has less than a one percent chance of happening, I mean we’ve got bigger problems.”
Rep. David Brat (R-VA) told TPM that such an exemption for members of Congress seeking to deregulate the health care market “would be, politically, completely tone deaf.” But when pressed for details on whether the bill treats D.C. as a state or not, Brat hedged, saying he “didn’t want to get out in front of that train.”
But Tim Jost, a health care law expert and professor at Washington and Lee University School of Law told TPM this isn’t true. “D.C. is clearly defined as a state in the Affordable Care Act. And I don’t see anything in the AHCA that changes that, including this provision,” he said. “The provision provides for congressional coverage through the marketplace, and the language is clear [regarding the exemption].”
Later, Meadows appeared to admit that the exemption was in fact in the bill and would be stripped out.
Freedom Caucus chair Mark Meadows now says he is 100% confident this exemption will be taken out of the bill. https://t.co/oskLG0tOs3
— Paul McLeod (@pdmcleod) April 26, 2017
Other Republicans said the carve-out would have to be addressed with a new piece of legislation for complicated parliamentary reasons. Speaker Ryan’s office confirmed to TPM that they are working on a “stand-alone effort” to undo the exemption, which lawmakers would vote on at the same time as the larger health care package.
Freedom Caucus member Rep. Morgan Griffith (R-VA) agreed that the fix “has to come through a separate bill.” But after admitting he did not know whether D.C. could get the same waivers as a state under the legislation, Griffith argued that it did not matter because “liberal” D.C. wouldn’t seek a waiver in the first place.
“Why would they want them if they love Obamacare so much?” he asked.
Republican lawmakers and staff—those aware of the existence of the carve-out—argued Wednesday that it was inserted in the first place in order to ensure that it could pass the Senate under what is known as the Byrd Rule, though they did not fully explain why.
The Byrd Rule dictates that strict budgetary legislation that does not increase the federal deficit after 10 years can be fast-tracked through the Senate on a simple majority vote.
Rep. Kevin Brady (R-TX) told reporters Wednesday that the Byrd Rule was “the genesis” of the exemption provision, but promised that “every member of Congress is going to vote to make sure we are treated like everybody else.”
Asked if that vote would happen in a separate bill, Brady said he didn’t “know that status of it.”
Meadows, who co-authored the provision in question, added that it was necessary to make sure it went through the right committees in Congress.
“It’s not a provision that says that we can exempt out,” he told reporters. “It was a provision that, from a fatal standpoint, would not allow us to address it because jurisdictionally on the budget reconciliation instructions, that were narrowly tailored to two different committees of jurisdiction. To fully address that would had to have gone over to another area which would have made it fatal.”
“Now, y’all are very smart, you get that,” Meadows quipped to the cluster of visibly confused reporters, and disappeared into the closed-door conference meeting.
Tierney Sneed contributed reporting.
Alice Ollstein is a reporter at Talking Points Memo, covering national politics. She graduated from Oberlin College in 2010 and has been reporting in DC ever since, covering the Supreme Court, Congress and national elections for TV, radio, print, and online outlets. Her work has aired on Free Speech Radio News, All Things Considered, Channel News Asia, and Telesur, and her writing has been published by The Atlantic, La Opinión, and The Hill Rag. She was elected in 2016 as an at-large board member of the DC Chapter of the Society of Professional Journalists. Alice grew up in Santa Monica, California and began working for local newspapers in her early teens.