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Obamacare Lawsuit Challenges Congress’ ‘Small Business’ Status

DC Health Link is currently down (Bill Clark/CQ Roll Call File Photo)
DC Health Link is currently down (Bill Clark/CQ Roll Call File Photo)

The conservative group Judicial Watch filed a lawsuit Wednesday alleging that members of Congress and congressional staffers who enrolled in health care via the D.C. small business exchange did so illegally.  

At a press conference at the National Press Club Wednesday, Judicial Watch claimed the House and Senate should not have been classified as small businesses in the health care exchange. The group said the classification violated D.C. law, which characterizes small businesses as those with fewer than 50 employees.  

Judicial Watch President Tom Fitton pointed to documents obtained through Freedom of Information Act requests, showing House and Senate applications to the D.C. Exchange Authority categorized the institutions as small businesses with 45 employees.  

“The documents we obtained from D.C. Health Exchange show that every member of Congress who has enrolled in Obamacare has obtained their insurance coverage — and any taxpayer subsidies — through fraud,” Fitton said Wednesday.  

When asked for a comment on the lawsuit’s charges, a spokesperson for the D.C. Health Benefit Exchange Authority said, “We cannot comment on pending litigation.” Since the health care rollout last year, 12,359 members of Congress, staffers and their spouses and dependents enrolled in the D.C. small business exchange, comprising 85% of small business enrollees.  

The instructions to enroll in the small business exchange came from the White House. In September 2013, the Office of Personnel Management, issued a rule directing  House and Senate employees to participate in the D.C. Small Businesses Health Option Program.  

However, unlike a recent lawsuit by Sen. Ron Johnson, R-Wis., the Judicial Watch suit does not target President Obama’s administration. Instead, the group is suing the D.C. Health Benefit Exchange Authority and its executive director, Mila Kofman.  

“Taxpayers don’t have standing, generally, to challenge decisions of this nature by either the administration or Congress,” said Fitton in a phone interview after the press conference, explaining why the group is suing the district instead of the federal government.  

Fitton pointed out that in D.C., taxpayers can file a lawsuit for a misuse of public funds, which is why Fitton believes they have standing. Johnson’s suit was recently rejected by a federal judge on the grounds that he did not have standing to sue the president’s administration. (Johnson is appealing the ruling .)  

“Sen. Johnson’s lawsuit demonstrated that achieving standing, it’s not impossible, but it’s difficult in some of these cases,” Fitton told CQ Roll Call. He later added, “You have to figure out what the legal challenge is, and after a time it presents itself. And that’s what it did here at Judicial Watch. We’ve had a longstanding concern about the president’s violation of the Affordable Care Act.”  

Judicial Watch filed a taxpayer lawsuit on behalf of D.C. resident Kirby Vining on the claim that taxpayer dollars allocated towards the exchanges were unlawfully distributed to congressional health care plans.  

“As I pay my own health insurance, I am outraged,” Vining told reporters Wednesday. “I am outraged, both that my government is subsidizing this and that the Congress of the United States is calling itself a small business.”  

Vining is a member of Judicial Watch and worked for the federal government for 35 years, first with the National Park Service and then with the Department of Defense. He retired in 2011 and has been active with Friends of McMillan Park. Vining is also running for Advisory Neighborhood Commissioner for his neighborhood near Catholic University.  

That plaintiff is asking the D.C. Superior Court to order disqualify the House and Senate from participating in the small business exchange. Fitton believes their case will be bolstered by “smoking gun documents” acquired through FOIA requests.  

In addition to the documents showing the House and Senate applications claimed to have less than 50 employees, the institutions were also classified as “state/local government.”  

And the institutions did not list employees, as required by the application. Instead, the House listed its one employee as Twenty Congress, born January 1, 1994. The Senate listed its employee as First Last, born January 1, 1980. The electronic signatures certifying the application information was correct were redacted.  

Hannah Hess contributed to this report.

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