[Congressional Record Volume 151, Number 49 (Thursday, April 21, 2005)]
[Senate]
[Pages S4110-S4112]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. HUTCHISON:
  S. 866. A bill to amend title II of the Social Security Act to repeal 
the windfall elimination provision and protect the retirement of public 
servants; to the Committee on Finance.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the text 
of the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 866

       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     (42 U.S.C. 415(a)(7)) is repealed.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

[[Page S4111]]

     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 individual's years of coverage (as so defined) 
  is:                                        The applicable percent 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

[[Page S4112]]

     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.
                                 ______