U.S. Senate Follows Judicial Watch Lead on Obamacare Fraud

Washington, DC

Someone on Capitol Hill has taken notice of the lawsuit Judicial Watch filed last fall challenging members of Congress who are taking advantage of health benefits they are not entitled to claim. That someone is Sen. David Vitter (R-LA), who now chairs the Small Business & Entrepreneurship Committee.

As a prominent figure in the new Republican majority, Vitter is well positioned to investigate and expose illegal maneuverings that make it possible for elected officials and their staff members to obtain perks and benefits that are not available to average Americans. In response to “smoking-gun” documents uncovered by Judicial Watch, Vitter has initiated his own separate investigation into the Washington, D.C., Small Business Health Exchange and the special exemption that was created for Congress that oversteps and ignores the clear language of the law.

At least 12,359 members of Congress, congressional staffers, their spouses and dependents currently purchase health insurance in D.C.’s Small Business Exchange even though Congress far exceeds the D.C. law’s 50-employee limit for participating in the Exchange. That’s why we filed a lawsuit in October on behalf of Kirby Vining, a D.C. taxpayer, against the D.C. Health Exchange Authority.  In a court filing, the D.C. government conceded that, under D.C. law, the U.S. Congress is not permitted to obtain insurance through the District’s Small Business Exchange. Members of the political class, true to form, do not believe the rules apply to them. How do we know?

Our lawsuit cites applications filed by the U.S. House of Representatives and Senate with the D.C. Exchange Authority.  The applications, which were obtained through a Freedom of Information Act (FOIA) request, show that the House and Senate falsely claimed to have only 45 employees each. They also show that the House and Senate attested to having “50 or fewer full-time equivalent employees.”  Congress employs upwards of 20,000 people.  Remember: D.C. law limits participation in the Exchange to small businesses having fewer than 50 full-time employees!  The applications also state that the House and Senate are “local/state governments.”

As part of his investigation, Vitter is calling on the D.C. Exchange and the financial clerks from both the U.S. Senate and the U.S. House to release information describing how the U.S. Congress was classified as a small business. The language of the federal Affordable Care Act, widely known as Obamacare, does not permit an employer contribution for anyone purchasing a health plan on the Exchange unless they are purchasing the plan as an employee who is part of a small business.

The text of Vitter’s letter to congressional officials is available here. You can see how our efforts are beginning to rattle some cages and break information loose. Here is just brief snippet from Vitter’s very blunt, scathing letter to the congressional culprits:

On October 15, 2014, Judicial Watch filed a lawsuit against the District of Columbia Health Benefit Exchange Authority regarding its decision to allow Congress to participate in D.C.’s Small Business Exchange. In its complaint Judicial Watch cited several applications filed by the U.S. House of Representatives and U.S. Senate that misrepresented material information including fake names, the number of full-time equivalent employees, and a definition of Congress as a “state/local government. These documents, that have been made public, prove that someone within Congress knowingly falsified information in order for Congress to keep their Obamacare subsidy. We need to know who, immediately, so we can fix this injustice and eliminate the unfair practice. Under the Employer Information section of the D.C. Health Link application, the Primary Business address indicates that the Office of the Clerk of the U.S. House of Representatives (House Clerk) and the U.S. Senate Disbursing Office (Senate Disbursing) were responsible for submitting these applications.

Senator Vitter deserves kudos and thanks for his work, especially since his cause is unpopular in Congress – where far too many members and staff are happy to receive benefits in violation of the law. (By the way, Sen. Vitter has had some ethics issues in the past for which he has been rightly criticized by JW and others.)

And what a nice change of pace for Congress – an investigation into its own misconduct!  Senator Vitter told The Times Picayune:

“Allowing Congress – which employs nearly 16,000 individuals — to determine itself as a ‘small business’ doesn’t pass the common sense test…We need to know exactly how and why this was allowed to happen, so we can fix this injustice and eliminate Washington’s Obamacare Exemption. Washington insiders should be forced to live under Obamacare just like the rest of America without a special taxpayer funded subsidy.”

On behalf of Mr. Vining, Judicial Watch is asking the court to:

  1. declare the House and the Senate’s participation in the Small Business Exchange to be unlawful; (b) enjoin Defendants from continuing to allow the House and the Senate to participate in the Small Business Exchange, or at a minimum, from expending further taxpayer funds on the House and Senate’s participation in the Small Business Exchange; (c) issue a writ of mandamus ordering [District officials] to deny the House and the Senate further participation in the Small Business Exchange . . .”


As Senator Vitter points out, our initial lawsuit highlighted the fraud behind Congress’s illegal participation in Obamacare.  Incredibly, our cause was bolstered by the defendants in their response to our lawsuit.

On November 7, 2014, the Exchange Authority filed a Motion to Dismiss in which it clearly admits that the law does not allow Congress to participate in its Small Business Exchange. Here’s the key paragraph:

The Health Benefit Exchange Authority was created by the District of Columbia Council under the ACA, and authorized to operate a SHOP Exchange [“Small Business Health Options Program”] in the District through which qualified small businesses could access health coverage for employees. By limiting the SHOP Exchange to “small employers” with an “average of not more than 50 employees during the preceding calendar year,” D.C. Code 31-3171.01 prevents Congressional enrollment in the D.C. Shop Exchange because Congress does not fall within the definition of “small employer.”

On December 12, 2014, we filed an Opposition to the Motion to Dismiss.  The D.C. Exchange then filed a Reply to the Opposition on December 22, 2014. So, the legal battle continues to rage. The court has scheduled a status conference on February 27.

You might want to check with your local congressman and senators about what they think of the fraud now being committed in order to provide illegal health insurance to Congress.  You can point them to our documents and demand accountability.

The Louisiana Republican has fought persistently for a vote on his proposed legislation to end what he appropriately describes as the “Obamacare Exemption.” As he pushes for reform on Capitol Hill, we will continue to fight in court.