WASHINGTON, DC - JANUARY 06: U.S. Sen. Ron Johnson (R-WI) (R) speaks as attorney Rick Esenberg (L) listens during a news conference January 6, 2014 on Capitol Hill in Washington, DC. Sen. Johnson held the news conference to announce a lawsuit against the Office of Personnel Management challenging the Affordable Care Act regulation that allows congressional staff to keep their employer contributions for use toward the purchase of a health insurance plan. (Photo by Alex Wong/Getty Images) (Alex Wong / Getty Images)
WASHINGTON — Sen. Ron Johnson, R-Wis., filed a lawsuit Monday challenging the Obama administration’s decision to provide health insurance subsidies to members of Congress and their staff.
The senator said he believes the decision gives lawmakers special — and illegal — treatment.
Under the Affordable Care Act — widely known as Obamacare — members of Congress and their employees were kicked off their federal health plan and forced to buy insurance through an exchange. The federal Office of Personnel Management issued a rule last September making clear that the federal government would continue to pay the employer contribution for congressional health benefits at the same rate as if members and their staff were still on the federal employee health plan.
Some lawmakers have argued that this amounts to a federal subsidy to pay for coverage that other Americans are not entitled to.
Only Americans who make less than about $45,000 annually qualify for federal subsidies. Members of Congress are paid $175,000 per year.
“That’s completely unfair, completely unjust,” Johnson said at a news conference at the U.S. Capitol.
His lawyers in the case are Paul Clement, a former solicitor general under George W. Bush, and Rick Esenberg, founder and president of the Wisconsin Institute for Law & Liberty.
The issue may seem petty to some outside the Beltway — the liberal blog Think Progress assailed Johnson when he first talked about suing in October, saying he was trying to deprive his own staff members of health insurance benefits. But to the senator, the case is about more than the subsidies. He said it’s about reining in what he calls presidential overreach.
“This is, I think, a very important constitutional question,” said Johnson, who is funding the suit through his campaign committee.
The subsidies for lawmakers and staff were not spelled out in the law itself, and Johnson said he believes it violates the law. “This lawsuit is about enforcing that law,” Johnson said.
OPM officials said when they issued the rule that the agency has the authority to administer employee health benefits because members of Congress and their staff are still federal employees. “It is within OPM’s interpretive authority ... to clarify that a Government contribution may be provided to, and to establish the means for a Government contribution towards health benefits for, Members of Congress and congressional staff, just as we do for other Federal employees.”
In order for the case to proceed, Johnson will have to prove he has been harmed by the OPM ruling, he said, giving him grounds to sue. He alleges in the complaint filed Monday in U.S. District Court in Green Bay, Wis., that he and other members of Congress are dealing with an undue administrative burden because they must designate which members of their staff are subject to the change. In addition, the complaint argues that the OPM ruling is forcing him to participate in something that he believes is illegal.
Not all of his GOP colleagues are on board with Johnson’s Obamacare suit. Fellow Wisconsin Republican Rep. James Sensenbrenner on Sunday called the lawsuit an “unfortunate political stunt.”
“Senator Johnson should spend his time legislating rather than litigating as our country is facing big problems that must be addressed by Congress — not the courts,” Sensenbrenner said. “This politically motivated lawsuit only takes public attention away from how bad all of Obamacare really is and focuses it on a trivial issue. Fortunately, Senator Johnson’s suit is likely frivolous and will not achieve the result he’s seeking.”
Johnson on Monday said he was “disappointed” and “a little confused” by Sensenbrenner’s reaction, but he said he’s moving forward regardless. “I respectfully disagree,” he said.