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When he was a presidential candidate, Gov. Scott Walker was the first top-tier Republican contender to release a plan to replace Obamacare and has chastised GOP members of Congress who ran on repealing the Affordable Care Act only to delay a vote this year.
His comments included areas that are still relevant to the debate.
For example, in a Sept. 1, 2015 interview, CNBC Chief Washington Correspondent John Harwood pressed Walker on what he would do as president if he couldn’t garner enough votes to repeal Obamacare.
"What are you going to say when you’re president of the United States and you can’t get 60 votes in the Senate to repeal Obamacare and it’s too hard and your people say ‘Hey, Scott Walker you said you were gonna get rid of Obamacare’?"
"We are going to do it," Walker replied.
Then he followed up with a claim worthy of the Truth-O-Meter:
"Day One, I’m going to sign an executive order that gets rid of the special carve out that President Obama gave to the Congress that doesn’t require them to abide by the same rules that all of the other Americans do in terms of Obamacare."
(Walker made a similar pledge in the Sept. 16 presidential debate, days before he dropped out of the race.)
So, are member of Congress playing by different rules?
Congress and Obamacare
U.S. Sen. Chuck Grassley, R-Iowa, suggested back in 2009 that members of Congress experience the effects of the Affordable Care Act and be put in the same position as other Americans.
He proposed an amendment, which was accepted by the Senate Finance Committee, that required members of Congress and their staffs to obtain health insurance through the exchanges established by the legislation.
Here’s what the law said:
"Notwithstanding any other provision of law … the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are -- (I) created under this Act (or an amendment made by this Act); or (II) offered through an Exchange established under this Act (or an amendment made by this Act)."
So, in a way, Congress does play by different rules -- but not in the way Walker suggests. They are required to use the Obamacare marketplaces while no one else is.
Members of Congress and their staffs were previously insured through the Federal Employees Health Benefits program, which offers a range of plans with similar subsidies for premiums that nearly all large employers in the United States provide. That is, employees and their employers share in the cost.
The switch to using the Affordable Care Act exchanges was scheduled for 2014.
But vague language in the law left confusion about government (as the employer) contributions to health care plans.
If members of Congress, along with their staffs, used the exchanges, they would no longer receive any assistance in paying for health care.
What’s more, the salaries of staffers were too high to receive any level of the subsidies available to people in the insurance exchanges. So, congressional staffers would have paid full health care premiums out of pocket -- and Obamacare did not say employees were mandated to lose such benefits.
What came next
The health care reforms also established a marketplace for small businesses to sponsor health care coverage for their employees.
In order to maintain the employer-sponsored coverage for Congress members and staffers, it was determined that the exchanges for small businesses would be a better fit.
This led to some asserting that Congress was exempt from Obamacare.
In August 2013, PolitiFact National rated False a claim by U.S. Sen. Ted Cruz, R-Texas, that "President Obama just granted all of Congress an exception" to Obamacare. The claim was included in PolitiFact’s list of the Top 16 myths about the health care law.
Walker used similar logic in his claim that Obamacare doesn’t require members of Congress "to abide by the same rules that all of the other Americans do."
Walker’s team called the move to allow members of Congress and Congressional staffers to get care through the small business exchange "legal gymnastics."
But Congressional offices do act like small businesses in many respects.
Mark Peterson, a professor of public policy at UCLA’s Luskin School of Public Affairs, said the parallel between small businesses and congressional offices became the foundation for allowing Congress and staffers to use the small business exchanges.
"Yes, those employed by them are federal employees," Peterson said. "But unlike non-congressional employees, they are hired and fired by their sole boss -- the senator or representative -- not the government per se."
The law says businesses with fewer than 100 employees are eligible to use the exchange. Beginning in 2017, states can also allow large businesses to also use those marketplaces.
Walker said Obamacare doesn’t require members of Congress "to abide by the same rules that all of the other Americans do."
Members of Congress and their staffs use the exchanges set up by the Affordable Care Act just like their constituents would.
We rate the claim False.
PolitiFact, In Obamacare, Congress must buy insurance from marketplaces but president and his administration keep "gold-plated" coverage, Rep. Sean Duffy Says, Oct. 21, 2013.
PolitiFact, Did members of Congress exempt themselves from complying with the health care reform laws?, Jan. 16, 2013.
PolitiFact, ‘$64,000 question’ e-mail says Congress is exempt from health reform. They’re not. Sept. 11, 2009.
PolitiFact, Top 16 myths about the health care law, Sept. 24, 2013.
PolitiFact, Sen. Ted Cruz says Obama ‘just granted all of Congress an exception’ to Obamacare, Aug. 14, 2013.
Congressional Research Service, Health benefits for members of Congress and designated congressional staff, June 17, 2015.
Phone interview with Timothy Jost, professor, Washington and Lee University School of Law, Sept. 7, 2015.
Email exchange with Mark Peterson, chairman and professor of public policy, Luskin School of Public Affairs, University of California, Los Angeles.
CNBC, How the season of Trump changed Scott Walker, Sept. 1, 2015.
Phone interview with Allison Barnes, professor, Marquette University Law School, Sept. 7, 2015.
Email exchange with Edmund Byrnes, public affairs, U.S. Office of Personnel Management.
U.S. Office of Personnel Management, Frequently Asked Questions: Insurance.
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