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Is the Vitter/DeSantis Amendment Unconstitutional?

In the coming days or weeks Congress may consider some grand bargain that funds the government.   As I discussed before, part of that grand bargain might be inclusion of the Vitter/DeSantis Amendment.  The House recently passed legislation that included the Vitter amendment but it was rejected by the Senate.  

The section of the proposal I want to draw readers attention to is this:

(iii) GOVERNMENT CONTRIBUTION.— No Government contribution under section 8906 of title 5, United States Code, shall be provided on behalf of an individual who is a Member of Congress, congressional staff, the President, the Vice President, or a political appointee for coverage under this subparagraph.

As I discussed in my previous post, the laudable goal of the Vitter Amendment is to ensure that Members of Congress and Congressional staff do not get treated any better than the private sector.  Under current law – Obamacare – OPM has determined that Members of Congress will receive contributions from the federal government for their health care, similarly to how they had under the previous FEHBP regime.   As the language above indicates, when Vitter/DeSantis passes the government contribution disappears. 

This is where the 27th Amendment to the Constitution is implicated.  If you haven't read the 27th Amendment lately it reads:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

Under the Internal Revenue Code, employer contributions for health care are not taxed.  But they very clearly seem to be compensation. As the Joint Committee on Taxation states when discussing the employer provided health care exclusion: 

The value of health insurance that an employer purchases for its employees unquestionably constitutes compensation to each covered employee in this general sense.

As JCT says it seems fairly clear that the employer provided contribution is compensation.  And the 27th Amendment seems fairly clear that you cannot vary the compensation of Senators and Representatives until the election of Representatives intervenes.  That would seem to indicate that you cannot remove the employer provided contribution until January of 2015. 

It's unclear whether the whole law would fall if it did not include an effective date of January 2015.   It is also an open question whether a Member – who would likely be the only person with standing – would actually file suit against the law.   It is also unclear whether an argument that the initial OPM ruling was erroneous (a strong argument in my opinion) and Members were never entitled to the employer contribution (thereby rendering Vitter/DeSantis moot) would prevail.  

 A different question might be whether the houses could take care of this issue as an internal rule-making matter and not as a “law.”  Finally this of course doesn't impact the staffers or political appointees who are included in Vitter/DeSantis – they have no Constitutional protections. 

So if the Vitter/DeSantis policy is going to be effective I think they may need to be a little more creative about how they're going to do that.  Simply statutorily prohibiting the employer provided contribution seems to be a modification to the compensation of Members prohibited (or at least encumbered) by the 27th Amendment.