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Main issue at appellate court hearing: Did health-reform rules harm Wisconsin senator?

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CHICAGO — Lawyers for U.S. Sen. Ron Johnson sought on Wednesday to revive the Wisconsin Republican's challenge to the federal health care overhaul, arguing before an appellate panel that he was indeed harmed by executive rules associated with the legislation.

The oral arguments heard by three judges of the 7th U.S. Circuit Court of Appeals in Chicago centered on those rules, adopted after President Barack Obama's health care reform, which let congressional staffers keep favorable insurance benefits.

The main question for the appellate court is whether the rules harmed Johnson himself in some way, which he must show for the lawsuit to proceed. A U.S. district court judge in Wisconsin dismissed Johnson's suit in July, concluding that Johnson failed to show how rules conferring benefits on his staffers somehow hurt him.

But Johnson's lawyer, Paul Clement, said Wednesday that the rules, among other things, sullied Johnson's reputation in his constituents' eyes because his staffers were getting exclusive benefits others weren't entitled to.

Johnson and other legislators, even as critics of the rules, would still be subject to accusations that "they are being treated better than their constituents" and "feathering their nest," Clement said.

Government attorney Mark Stern responded that there's no precedent to back the view that a damaged political reputation constituted the kind of harm required for a lawsuit to go ahead.

If Johnson prevails, said Judge Ann Claire Williams, an appointee of Democrat Bill Clinton, politicians everywhere might start filing suits on the grounds that adhering to a new law or rule undermined them politically.

PHOTO: FILE - In this July 7, 2014 file photo, Wisconsin Republican Sen. Ron Johnson speaks on the steps of Wisconsin Eastern District Federal Courthouse in Green Bay, Wis. Lawyers for Johnson on Wednesday, Jan. 21, 2015 sought to revive his challenge to the federal health care overhaul, arguing before an appellate panel in Chicago that he was indeed harmed by executive rules associated with the legislation. (AP Photo/The Green Bay Press-Gazette, Jim Matthews, File) NO SALES
FILE - In this July 7, 2014 file photo, Wisconsin Republican Sen. Ron Johnson speaks on the steps of Wisconsin Eastern District Federal Courthouse in Green Bay, Wis. Lawyers for Johnson on Wednesday, Jan. 21, 2015 sought to revive his challenge to the federal health care overhaul, arguing before an appellate panel in Chicago that he was indeed harmed by executive rules associated with the legislation. (AP Photo/The Green Bay Press-Gazette, Jim Matthews, File) NO SALES

"Where do we draw the line?" she asked.

Clement responded that this case is unique because it directly affects the operations of U.S. lawmakers' staffs.

Congress included in the 2010 health care bill a requirement that members of Congress and their staffs move off the federal employee health care plan and into online marketplaces to put them in the same situation as all uninsured Americans.

Johnson filed his suit a year ago after the Office of Personnel Management decided lawmakers and their staffs should be able to continue to get the same health care benefits — covering about 75 percent of their premium costs — even after leaving the federal health insurance program they had been on for years.

The two other appellate judges who will decide Johnson's appeal are Republican appointees Joel Flaum and William Bauer. A ruling is expected within several months.

Both Clement and Stern declined to comment after Wednesday's hearing.


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