[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 866 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 866

  To amend title II of the Social Security Act to repeal the windfall 
  elimination provision and protect the retirement of public servants.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 21, 2005

Mrs. Hutchison introduced the following bill; which was read twice and 
                  referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
  To amend title II of the Social Security Act to repeal the windfall 
  elimination provision and protect the retirement of public servants.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Public Servant Retirement Protection 
Act of 2005''.

SEC. 2. REPEAL OF CURRENT WINDFALL ELIMINATION PROVISION.

    Paragraph (7) of section 215(a) of the Social Security Act (42 
U.S.C. 415(a)(7)) is repealed.

SEC. 3. REPLACEMENT OF THE WINDFALL ELIMINATION PROVISION WITH A 
              FORMULA EQUALIZING BENEFITS FOR CERTAIN INDIVIDUALS WITH 
              NON-COVERED EMPLOYMENT.

    (a) Substitution of Proportional Formula for Formula Based on 
Covered Portion of Periodic Benefit.--
            (1) In general.--Section 215(a) of the Social Security Act 
        (as amended by section 2 of this Act) is amended further by 
        inserting after paragraph (6) the following new paragraph:
    ``(7)(A) In the case of an individual whose primary insurance 
amount would be computed under paragraph (1) of this subsection, who--
            ``(i) attains age 62 after 1985 (except where he or she 
        became entitled to a disability insurance benefit before 1986 
        and remained so entitled in any of the 12 months immediately 
        preceding his or her attainment of age 62), or
            ``(ii) would attain age 62 after 1985 and becomes eligible 
        for a disability insurance benefit after 1985,
and who first becomes eligible after 1985 for a monthly periodic 
payment (including a payment determined under subparagraph (E), but 
excluding (I) a payment under the Railroad Retirement Act of 1974 or 
1937, (II) a payment by a social security system of a foreign country 
based on an agreement concluded between the United States and such 
foreign country pursuant to section 233, and (III) a payment based 
wholly on service as a member of a uniformed service (as defined in 
section 210(m)) which is based in whole or in part upon his or her 
earnings for service which did not constitute `employment' as defined 
in section 210 for purposes of this title (hereafter in this paragraph 
and in subsection (d)(3) referred to as `noncovered service'), the 
primary insurance amount of that individual during his or her 
concurrent entitlement to such monthly periodic payment and to old-age 
or disability insurance benefits shall be computed or recomputed under 
this paragraph.
    ``(B) The primary insurance amount of an individual described in 
subparagraph (A), as computed or recomputed under this paragraph, shall 
be--
            ``(i) in the case of an individual who first performs 
        noncovered service after the 12th calendar month following the 
        date of the enactment of the Public Servant Retirement 
        Protection Act of 2005, the primary insurance amount determined 
        under subparagraph (C), or
            ``(ii) in the case of an individual who has performed 
        noncovered service during or before the 12th calendar month 
        following the date of the enactment of the Public Servant 
        Retirement Protection Act of 2005, the larger of--
                    ``(I) the primary insurance amount determined under 
                subparagraph (C), or
                    ``(II) the primary insurance amount determined 
                under subparagraph (E).
    ``(C) An individual's primary insurance amount determined under 
this subparagraph shall be the product derived by multiplying--
            ``(i) the individual's primary insurance amount, as 
        determined under paragraph (1) of this subsection and 
        subparagraph (D)(i) of this paragraph, by
            ``(ii) a fraction--
                    ``(I) the numerator of which is the individual's 
                average indexed monthly earnings (determined without 
                regard to subparagraph (D)(i)), and
                    ``(II) the denominator of which is an amount equal 
                to the individual's average indexed monthly earnings 
                (as determined under subparagraph (D)(i)),
rounded, if not a multiple of $0.10, to the next lower multiple of 
$0.10.
    ``(D)(i) For purposes of determining an individual's primary 
insurance amount pursuant to subparagraph (C)(i), the individual's 
average indexed monthly earnings shall be determined by treating all 
service performed after 1950 on which the individual's monthly periodic 
payment referred to in subparagraph (A) is based (other than noncovered 
service as a member of a uniformed service (as defined in section 
210(m))) as `employment' as defined in section 210 for purposes of this 
title (together with all other service performed by such individual 
consisting of `employment' as so defined).
    ``(ii) For purposes of determining average indexed monthly earnings 
as described in clause (i), the Commissioner of Social Security shall 
provide by regulation for a method for determining the amount of wages 
derived from service performed after 1950 on which the individual's 
periodic benefit is based and which is to be treated as `employment' 
solely for purposes of clause (i). Such method shall provide for 
reliance on employment records which are provided to the Commissioner 
and which, as determined by the Commissioner, constitute a reasonable 
basis for treatment of service as `employment' for such purposes, 
together with such other information received by the Commissioner 
(including such documentary evidence of earnings derived from 
noncovered service as may be provided to the Commissioner by the 
individual) as the Commissioner may consider appropriate as a 
reasonable basis for treatment of service as `employment' for such 
purposes. The Commissioner shall enter into such arrangements as are 
necessary and appropriate with the Department of the Treasury, the 
Department of Labor, other Federal agencies, and agencies of States and 
political subdivisions thereof so as to secure satisfactory evidence of 
earnings for noncovered service described in subparagraph (A) for 
purposes of this clause and clauses (iii) and (iv). The Secretary of 
the Treasury, the Secretary of Labor, and the heads of all other 
Federal agencies are authorized and directed to cooperate with the 
Commissioner and, to the extent permitted by law, to provide such 
employment records and other information as the Commissioner may 
request for their assistance in the performance of the Commissioner's 
functions under this clause and clauses (iii) and (iv).
    ``(iii) In any case in which satisfactory evidence of earnings for 
noncovered service which was performed by an individual during any year 
or portion of a year after 1977 is not otherwise available, the 
Commissioner may, for purposes of clause (ii), accept as satisfactory 
evidence of such individual's earnings for such noncovered service 
during such year or portion of a year reasonable extrapolations from 
available information with respect to earnings for noncovered service 
of such individual for periods immediately preceding and following such 
year or portion of a year.
    ``(iv) In any case in which satisfactory evidence of earnings for 
noncovered service which was performed by an individual during any 
period before 1978 is not otherwise available, the Commissioner may, 
for purposes of clause (ii), accept as satisfactory evidence of such 
individual's earnings for such noncovered service during such period --
            ``(I) the individual's written attestation of such 
        earnings, if such attestation is corroborated by at least 1 
        other individual who is knowledgeable of the relevant facts, or
            ``(II) available information regarding the average earnings 
        for noncovered service for the same period for individuals in 
        similar positions in the same profession in the same State or 
        political subdivision thereof, or, in any case in which such 
        information is not available for such period, reasonable 
        extrapolations of average earnings for noncovered service for 
        such individuals from periods immediately preceding and 
        following such period.
    ``(v) In any case described in subparagraph (B)(i), if the 
requirements of clause (ii) of this subparagraph are not met (after 
applying clauses (iii) and (iv)), the primary insurance amount of the 
individual shall be, notwithstanding subparagraph (B)(i), the primary 
insurance amount computed under subparagraph (E).
    ``(E)(i) For purposes of determining the primary insurance amount 
under this subparagraph--
            ``(I) there shall first be computed an amount equal to the 
        individual's primary insurance amount under paragraph (1) of 
        this subsection, except that for purposes of such computation 
        the percentage of the individual's average indexed monthly 
        earnings established by subparagraph (A)(i) of paragraph (1) 
        shall be the percent specified in clause (ii), and
            ``(II) there shall then be computed (without regard to this 
        paragraph) a second amount, which shall be equal to the 
        individual's primary insurance amount under paragraph (1) of 
        this subsection, except that such second amount shall be 
        reduced by an amount equal to one-half of the portion of the 
        monthly periodic payment which is attributable to noncovered 
        service performed after 1956 (with such attribution being based 
        on the proportionate number of years of such noncovered 
        service) and to which the individual is entitled (or is deemed 
        to be entitled) for the initial month of his or her concurrent 
        entitlement to such monthly periodic payment and old-age or 
        disability insurance benefits.
        An individual's primary insurance amount determined under this 
        subparagraph shall be the larger of the two amounts computed 
        under this clause (before the application of subsection (i)).
    ``(ii) For purposes of clause (i), the percent specified in this 
clause is--
            ``(I) 80.0 percent with respect to individuals who become 
        eligible (as defined in paragraph (3)(B)) for old-age insurance 
        benefits (or became eligible as so defined for disability 
        insurance benefits before attaining age 62) in 1986;
            ``(II) 70.0 percent with respect to individuals who so 
        become eligible in 1987;
            ``(III) 60.0 percent with respect to individuals who so 
        become eligible in 1988;
            ``(IV) 50.0 percent with respect to individuals who so 
        become eligible in 1989; and
            ``(V) 40.0 percent with respect to individuals who so 
        become eligible in 1990 or thereafter.
    ``(F)(i) Any periodic payment which otherwise meets the 
requirements of subparagraph (A), but which is paid on other than a 
monthly basis, shall be allocated on a basis equivalent to a monthly 
payment (as determined by the Commissioner of Social Security), and 
such equivalent monthly payment shall constitute a monthly periodic 
payment for purposes of this paragraph.
    ``(ii) In the case of an individual who has elected to receive a 
periodic payment that has been reduced so as to provide a survivor's 
benefit to any other individual, the payment shall be deemed to be 
increased (for purposes of any computation under this paragraph or 
subsection (d)(3)) by the amount of such reduction.
    ``(iii) For purposes of this paragraph, the term `periodic payment' 
includes a payment payable in a lump sum if it is a commutation of, or 
a substitute for, periodic payments.
    ``(G)(i) This paragraph shall not apply in the case of an 
individual who has 30 years or more of coverage. In the case of an 
individual who has more than 20 years of coverage but less than 30 
years of coverage (as so defined), the percent specified in the 
applicable subdivision of subparagraph (E)(ii) shall (if such percent 
is smaller than the applicable percent specified in the following 
table) be deemed to be the applicable percent specified in the 
following table:

``If the number of such                      The applicable percent is:
        individual's years of 
        coverage (as so defined) 
        is:
        29.....................................................      85
        28.....................................................      80
        27.....................................................      75
        26.....................................................      70
        25.....................................................      65
        24.....................................................      60
        23.....................................................      55
        22.....................................................      50
        21.....................................................      45
    ``(ii) For purposes of clause (i), the term `year of coverage' 
shall have the meaning provided in paragraph (1)(C)(ii), except that 
the reference to `15 percent' therein shall be deemed to be a reference 
to `25 percent'.
    ``(H) An individual's primary insurance amount determined under 
this paragraph shall be deemed to be computed under paragraph (1) of 
this subsection for the purpose of applying other provisions of this 
title.
    ``(I) This paragraph shall not apply in the case of an individual 
whose eligibility for old-age or disability insurance benefits is based 
on an agreement concluded pursuant to section 233 or an individual who 
on January 1, 1984--
            ``(i) is an employee performing service to which social 
        security coverage is extended on that date solely by reason of 
        the amendments made by section 101 of the Social Security 
        Amendments of 1983; or
            ``(ii) is an employee of a nonprofit organization which (on 
        December 31, 1983) did not have in effect a waiver certificate 
        under section 3121(k) of the Internal Revenue Code of 1954 and 
        to the employees of which social security coverage is extended 
        on that date solely by reason of the amendments made by section 
        102 of that Act, unless social security coverage had previously 
        extended to service performed by such individual as an employee 
        of that organization under a waiver certificate which was 
        subsequently (prior to December 31, 1983) terminated.''.
            (2) Conforming amendments.--
                    (A) Section 215(d)(3) of such Act (42 U.S.C. 
                415(d)(3)) is amended--
                            (i) by striking ``subsection (a)(7)(C)'' 
                        each place it appears and inserting 
                        ``subsection (a)(7)(F)'';
                            (ii) by striking ``subparagraph (E)'' and 
                        inserting ``subparagraph (I)''; and
                            (iii) by striking ``subparagraph (D)'' and 
                        inserting ``subparagraph (G)(i)''.
                    (B) Section 215(f)(9)(A) of such Act (42 U.S.C. 
                415(f)(9)(A)) is amended by striking ``(a)(7)(C)'' and 
                inserting ``(a)(7)(F)''.

SEC. 4. EFFECTIVE DATE.

    The amendments made by this Act shall apply with respect to monthly 
insurance benefits for months commencing with or after the 12th 
calendar month following the date of the enactment of this Act. 
Notwithstanding section 215(f) of the Social Security Act, the 
Commissioner of Social Security shall recompute primary insurance 
amounts to the extent necessary to carry out the amendments made by 
this Act.
                                 <all>