No, Congress Didn’t Commit a Crime When It Shopped for Coverage

by Nicholas Bagley — Friday, Apr. 15, 2016

John Malcolm and Michael Cannon—yes, the Michael Cannon of King v. Burwell fame—have a new op-ed accusing members of Congress and/or their staffers of committing a federal crime.

Documents obtained under the Freedom of Information Act show that unnamed officials who administer benefits for Congress made clearly false statements when they originally applied to have the House and Senate participate in D.C.’s “SHOP” Exchange for 2014. Notably, they claimed the 435-member House had only 45 members and 45 staffers, while the 100-member Senate had only 45 employees total.

Rather than a good-faith clerical error, this was an intentional falsehood, which makes it a crime under both federal and D.C. law. Knowingly making even a single false statement in a matter concerning congressional compensation is punishable by up to five years in prison.

This is provocative stuff. It’s also wrong. In their analysis, Malcolm and Cannon conflate two distinct questions.

First, is Congress eligible to go on the SHOP exchange? The agency that administers federal health benefits, the Office of Personnel Management, says they are (and I think that’s right). Malcolm and Cannon disagree. We can fight about that; one senator even tried to litigate it. But Congress doesn’t commit a crime when, relying on OPM’s decision, it represents that it’s SHOP-eligible.

Second, did Congress make a material misstatement of fact in signing up for the SHOP exchange? The exchange website in Washington, DC includes a field for the number of employees. If you enter a figure above 50, the website won’t accept the application. That’s because large employers are ineligible to use the SHOP exchange. The only exception? Congress, which the ACA singles out as a special case.

To avoid the technical obstacle, the Senate and House both entered “45” on the application. No one actually thinks they have 45 employees. The SHOP exchange knew full well that “45” was the equivalent of “n/a.” The statement thus wasn’t material to the approval of their applications. And liability under 18 U.S.C. §1001 arises only from “materially false, fictitious, or fraudulent statement[s] or representation[s].”

The statements would be material if and only if OPM had decided that Congress was ineligible to go on the SHOP exchange. In those circumstances, maybe entering “45” could’ve fooled the SHOP exchange into granting eligibility when it shouldn’t have. But OPM has decided that Congress is eligible—and the agency is vested with the power to resolve that very question. Congress tells no lies when it openly relies on that agency decision.

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It’s a serious thing to accuse someone of committing a federal crime. With that in mind, Malcolm and Cannon’s accusations strike me as irresponsible. At most, what we have here is a legal dispute over the meaning of a statute. It’s not a crime to disagree about statutes—or, if it is, I guess I’m an outlaw.

I admit to being pretty tired of this sort of overheated outrage. By all means, call the Obama administration out when you think it’s broken the law. I have. But try and keep some kind of perspective, for Pete’s sake.

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