While many folks in Washington, D.C. agonize over how to rein in President Obama’s lawlessness, what they might not realize is that those in Congress are responsible – in part – for Obama’s executive overreach.  Before passing additional legislation or waiting for the courts, Congress has the opportunity to act now.  It simply has to start obeying the Affordable Care Act – the law it wrote and passed.

More than a few members of Congress are supporting the current Supreme Court challenge to the Obama administration’s decision to ignore the Obamacare law and provide taxpayer subsidies for individuals in federal health insurance exchanges.  Yet some of these same members take taxpayer money to help purchase Obamacare insurance for themselves, which is in no way authorized by the Obamacare law.

Prior to Obamacare, Congress had a wonderful health plan.  Like many employers, the federal government provided subsidies that were not subject to tax in order to help Members of Congress and their staff purchase health insurance.  But that changed when Obamacare was passed into law.  

The Affordable Care Act clearly states that Congress and staff must participate in the new insurance framework based on health-care exchanges, but there’s no available exchange for large employers, like Congress who has nearly 16,000 employees. That meant members of Congress and staff could only participate in the individual exchanges. Just like the rest of America, Congress had to abide by the same Obamacare rules and use these expensive individual exchanges with no employer contribution to help pay their premiums with non-taxable dollars.

In fact, part of the political price to pass the law was that specific provision that there would be no special treatment for Congress. But Republican and Democrat leaders in Congress begged Obama to step in. Rather than losing their tax-free premium subsidy, which would mean higher health insurance bills for themselves and their families, congressional leadership cut a side deal with the administration.  The result?  The Obama administration’s Office of Personnel Management (OPM) ignored the law and decreed that Congress could participate as a “small business” eligible to purchase a “Gold-tier” plan from Washington D.C.’s health-care exchange.

The District of Columbia defines a “small business” as fifty employees or less. Congress has nearly 16,000.  According to the documents disclosed by Judicial Watch in a taxpayer lawsuit challenging this scam, the House and Senate filed false applications with the D.C. Health Benefits Exchange claiming they each were a “small business” with “fifty or fewer full-time equivalent employees.”  

The applications state that the U.S. Senate and House of Representatives each have 45 employees and that the federal institutions are actually “local/state governments.” The “electronic signature” section of the application states that the signatory has “provided true and correct information to all questions” and is aware that if “not truthful, there may be a penalty.” When we requested to see these documents, the names of the signatories had been blacked out by the D.C. Exchange.

These documents appear to be an outright fraud. They are the basis for using taxpayer money to illicitly subsidize health insurance for Congress. More than 12,300 members of Congress, their staff, spouses, and dependents obtained health insurance through the exchange between October 2013 and September 2014, and that number surely is climbing.  It would be hard to credibly attack Obama’s executive overreach (and as the House did – sue to stop him from violating Obamacare), when Congress is a co-conspirator.

No other big businesses can participate in the Obamacare exchanges, as the large business exchanges won’t “open” until 2017.  Only in Washington would a provision requiring Congress to comply with Obamacare result in a lawless exception from the law and taxpayer subsidies available to no one else in the country!

Congress defining itself as a “small business” takes a lot of nerve. The investigation by the Senate Small Business & Entrepreneurship Committee will determine exactly how and why this was allowed to happen.

Voters and taxpayers should be outraged to see members of the United States Congress relying on fraudulent application information to obtain cheaper health insurance under Obamacare.  Even worse is that Congress and staff are getting taxpayer money to help pay for premiums, which completely violates the law.  This is one scandal that Congress can’t blame entirely on President Obama.

The Senate investigation and Judicial Watch lawsuit, which is on appeal, will press forward. But there is another, perhaps more elegant, solution available in the meantime.

On Obamacare, the new Congress should heal itself. It should move quickly to set clear examples of fairness, honesty, and accountability. Congress should repudiate the OPM ploy, withdraw the misleading Obamacare applications, and exit the D.C. Health Benefits Exchange.  Best of all, they can do all of this without wrangling votes, overcoming filibusters, holding hearings, or worrying about a veto by President Obama.

As a matter of personnel policy, the Senate and House could simply require Senators, Representatives, and their staff to obey the Obamacare law. It may mean paying more for health insurance in the short term.  But if Congress doesn’t like that, it can always repeal the Affordable Care Act.

Republican David Vitter represents Louisiana in the United States Senate. He serves as Ranking Member of the Senate Environment and Public Works Committee.

Tom Fitton is president of Judicial Watch. Founded in 1994, Judicial Watch Inc. is a constitutionally conservative, nonpartisan educational foundation that promotes transparency, accountability and integrity in government, politics and the law.