II 

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Public Servant Retire5 ment Protection Act of 2005’’. 

6 SEC. 2. REPEAL OF CURRENT WINDFALL ELIMINATION 

7 PROVISION. 

8 Paragraph (7) of section 215(a) of the Social Secu9 rity Act (42 U.S.C. 415(a)(7)) is repealed. 
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1 SEC. 3. REPLACEMENT OF THE WINDFALL ELIMINATION 

2 PROVISION WITH A FORMULA EQUALIZING 

3 BENEFITS FOR CERTAIN INDIVIDUALS WITH 

4 NON-COVERED EMPLOYMENT. 

5 (a) SUBSTITUTION OF PROPORTIONAL FORMULAFOR

6 FORMULA BASED ON COVERED PORTION OF PERIODIC

7 BENEFIT.— 

8 (1) IN GENERAL.—Section 215(a) of the Social 

9 Security Act (as amended by section 2 of this Act) 

10 is amended further by inserting after paragraph (6) 

11 the following new paragraph: 

12 ‘‘(7)(A) In the case of an individual whose primary 

13 insurance amount would be computed under paragraph 

14 (1) of this subsection, who— 

15 ‘‘(i) attains age 62 after 1985 (except where he 

16 or she became entitled to a disability insurance ben17 efit before 1986 and remained so entitled in any of 

18 the 12 months immediately preceding his or her at19 tainment of age 62), or 

20 ‘‘(ii) would attain age 62 after 1985 and be21 comes eligible for a disability insurance benefit after 

22 1985, 

23 and who first becomes eligible after 1985 for a monthly 

24 periodic payment (including a payment determined under 

25 subparagraph (E), but excluding (I) a payment under the 

26 Railroad Retirement Act of 1974 or 1937, (II) a payment 
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1 by a social security system of a foreign country based on 

2 an agreement concluded between the United States and 

3 such foreign country pursuant to section 233, and (III) 

4 a payment based wholly on service as a member of a uni5 formed service (as defined in section 210(m)) which is 

6 based in whole or in part upon his or her earnings for 

7 service which did not constitute ‘employment’ as defined 

8 in section 210 for purposes of this title (hereafter in this 

9 paragraph and in subsection (d)(3) referred to as ‘non10 covered service’), the primary insurance amount of that 

11 individual during his or her concurrent entitlement to such 

12 monthly periodic payment and to old-age or disability in13 surance benefits shall be computed or recomputed under 

14 this paragraph. 

15 ‘‘(B) The primary insurance amount of an individual 

16 described in subparagraph (A), as computed or recom17 puted under this paragraph, shall be— 

18 ‘‘(i) in the case of an individual who first per19 forms noncovered service after the 12th calendar 

20 month following the date of the enactment of the 

21 Public Servant Retirement Protection Act of 2005, 

22 the primary insurance amount determined under 

23 subparagraph (C), or 

24 ‘‘(ii) in the case of an individual who has per25 formed noncovered service during or before the 12th 
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1 calendar month following the date of the enactment 

2 of the Public Servant Retirement Protection Act of 

3 2005, the larger of— 

4 ‘‘(I) the primary insurance amount deter5 mined under subparagraph (C), or 

6 ‘‘(II) the primary insurance amount deter7 mined under subparagraph (E). 

8 ‘‘(C) An individual’s primary insurance amount de9 termined under this subparagraph shall be the product de10 rived by multiplying— 

11 ‘‘(i) the individual’s primary insurance amount, 

12 as determined under paragraph (1) of this sub13 section and subparagraph (D)(i) of this paragraph, 

14 by 

15 ‘‘(ii) a fraction— 

16 ‘‘(I) the numerator of which is the individ17 ual’s average indexed monthly earnings (deter18 mined without regard to subparagraph (D)(i)), 

19 and 

20 ‘‘(II) the denominator of which is an 

21 amount equal to the individual’s average in22 dexed monthly earnings (as determined under 

23 subparagraph (D)(i)), 

24 rounded, if not a multiple of $0.10, to the next lower mul25 tiple of $0.10. 
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1 ‘‘(D)(i) For purposes of determining an individual’s 

2 primary insurance amount pursuant to subparagraph 

3 (C)(i), the individual’s average indexed monthly earnings 

4 shall be determined by treating all service performed after 

5 1950 on which the individual’s monthly periodic payment 

6 referred to in subparagraph (A) is based (other than non7 covered service as a member of a uniformed service (as 

8 defined in section 210(m))) as ‘employment’ as defined in 

9 section 210 for purposes of this title (together with all 

10 other service performed by such individual consisting of 

11 ‘employment’ as so defined). 

12 ‘‘(ii) For purposes of determining average indexed 

13 monthly earnings as described in clause (i), the Commis14 sioner of Social Security shall provide by regulation for 

15 a method for determining the amount of wages derived 

16 from service performed after 1950 on which the individ17 ual’s periodic benefit is based and which is to be treated 

18 as ‘employment’ solely for purposes of clause (i). Such 

19 method shall provide for reliance on employment records 

20 which are provided to the Commissioner and which, as de21 termined by the Commissioner, constitute a reasonable 

22 basis for treatment of service as ‘employment’ for such 

23 purposes, together with such other information received 

24 by the Commissioner (including such documentary evi25 dence of earnings derived from noncovered service as may 
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1 be provided to the Commissioner by the individual) as the 

2 Commissioner may consider appropriate as a reasonable 

3 basis for treatment of service as ‘employment’ for such 

4 purposes. The Commissioner shall enter into such ar5 rangements as are necessary and appropriate with the De6 partment of the Treasury, the Department of Labor, other 

7 Federal agencies, and agencies of States and political sub8 divisions thereof so as to secure satisfactory evidence of 

9 earnings for noncovered service described in subparagraph 

10 (A) for purposes of this clause and clauses (iii) and (iv). 

11 The Secretary of the Treasury, the Secretary of Labor, 

12 and the heads of all other Federal agencies are authorized 

13 and directed to cooperate with the Commissioner and, to 

14 the extent permitted by law, to provide such employment 

15 records and other information as the Commissioner may 

16 request for their assistance in the performance of the 

17 Commissioner’s functions under this clause and clauses 

18 (iii) and (iv). 

19 ‘‘(iii) In any case in which satisfactory evidence of 

20 earnings for noncovered service which was performed by 

21 an individual during any year or portion of a year after 

22 1977 is not otherwise available, the Commissioner may, 

23 for purposes of clause (ii), accept as satisfactory evidence 

24 of such individual’s earnings for such noncovered service 

25 during such year or portion of a year reasonable extrapo-
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1 lations from available information with respect to earnings 

2 for noncovered service of such individual for periods imme3 diately preceding and following such year or portion of a 

4 year. 

5 ‘‘(iv) In any case in which satisfactory evidence of 

6 earnings for noncovered service which was performed by 

7 an individual during any period before 1978 is not other8 wise available, the Commissioner may, for purposes of 

9 clause (ii), accept as satisfactory evidence of such individ10 ual’s earnings for such noncovered service during such pe11 riod — 

12 ‘‘(I) the individual’s written attestation of such 

13 earnings, if such attestation is corroborated by at 

14 least 1 other individual who is knowledgeable of the 

15 relevant facts, or 

16 ‘‘(II) available information regarding the aver17 age earnings for noncovered service for the same pe18 riod for individuals in similar positions in the same 

19 profession in the same State or political subdivision 

20 thereof, or, in any case in which such information is 

21 not available for such period, reasonable extrapo22 lations of average earnings for noncovered service 

23 for such individuals from periods immediately pre24 ceding and following such period. 
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1 ‘‘(v) In any case described in subparagraph (B)(i), 

2 if the requirements of clause (ii) of this subparagraph are 

3 not met (after applying clauses (iii) and (iv)), the primary 

4 insurance amount of the individual shall be, notwith5 standing subparagraph (B)(i), the primary insurance 

6 amount computed under subparagraph (E). 

7 ‘‘(E)(i) For purposes of determining the primary in8 surance amount under this subparagraph— 

9 ‘‘(I) there shall first be computed an amount 

10 equal to the individual’s primary insurance amount 

11 under paragraph (1) of this subsection, except that 

12 for purposes of such computation the percentage of 

13 the individual’s average indexed monthly earnings 

14 established by subparagraph (A)(i) of paragraph (1) 

15 shall be the percent specified in clause (ii), and 

16 ‘‘(II) there shall then be computed (without re17 gard to this paragraph) a second amount, which 

18 shall be equal to the individual’s primary insurance 

19 amount under paragraph (1) of this subsection, ex20 cept that such second amount shall be reduced by an 

21 amount equal to one-half of the portion of the 

22 monthly periodic payment which is attributable to 

23 noncovered service performed after 1956 (with such 

24 attribution being based on the proportionate number 

25 of years of such noncovered service) and to which 
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1 the individual is entitled (or is deemed to be enti2 tled) for the initial month of his or her concurrent 

3 entitlement to such monthly periodic payment and 

4 old-age or disability insurance benefits. 

5 An individual’s primary insurance amount deter6 mined under this subparagraph shall be the larger of 

7 the two amounts computed under this clause (before 

8 the application of subsection (i)). 

9 ‘‘(ii) For purposes of clause (i), the percent specified 

10 in this clause is— 

11 ‘‘(I) 80.0 percent with respect to individuals 

12 who become eligible (as defined in paragraph (3)(B)) 

13 for old-age insurance benefits (or became eligible as 

14 so defined for disability insurance benefits before at15 taining age 62) in 1986; 

16 ‘‘(II) 70.0 percent with respect to individuals 

17 who so become eligible in 1987; 

18 ‘‘(III) 60.0 percent with respect to individuals 

19 who so become eligible in 1988; 

20 ‘‘(IV) 50.0 percent with respect to individuals 

21 who so become eligible in 1989; and 

22 ‘‘(V) 40.0 percent with respect to individuals 

23 who so become eligible in 1990 or thereafter. 

24 ‘‘(F)(i) Any periodic payment which otherwise meets 

25 the requirements of subparagraph (A), but which is paid 
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1 on other than a monthly basis, shall be allocated on a basis 

2 equivalent to a monthly payment (as determined by the 

3 Commissioner of Social Security), and such equivalent 

4 monthly payment shall constitute a monthly periodic pay5 ment for purposes of this paragraph. 

6 ‘‘(ii) In the case of an individual who has elected to 

7 receive a periodic payment that has been reduced so as 

8 to provide a survivor’s benefit to any other individual, the 

9 payment shall be deemed to be increased (for purposes of 

10 any computation under this paragraph or subsection 

11 (d)(3)) by the amount of such reduction. 

12 ‘‘(iii) For purposes of this paragraph, the term ‘peri13 odic payment’ includes a payment payable in a lump sum 

14 if it is a commutation of, or a substitute for, periodic pay15 ments. 

16 ‘‘(G)(i) This paragraph shall not apply in the case 

17 of an individual who has 30 years or more of coverage. 

18 In the case of an individual who has more than 20 years 

19 of coverage but less than 30 years of coverage (as so de20 fined), the percent specified in the applicable subdivision 

21 of subparagraph (E)(ii) shall (if such percent is smaller 

22 than the applicable percent specified in the following table) 

23 be deemed to be the applicable percent specified in the 

24 following table:
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‘‘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

1 ‘‘(ii) For purposes of clause (i), the term ‘year of cov2 erage’ shall have the meaning provided in paragraph 

3 (1)(C)(ii), except that the reference to ‘15 percent’ therein 

4 shall be deemed to be a reference to ‘25 percent’. 

5 ‘‘(H) An individual’s primary insurance amount de6 termined under this paragraph shall be deemed to be com7 puted under paragraph (1) of this subsection for the pur8 pose of applying other provisions of this title. 

9 ‘‘(I) This paragraph shall not apply in the case of 

10 an individual whose eligibility for old-age or disability in11 surance benefits is based on an agreement concluded pur12 suant to section 233 or an individual who on January 1, 

13 1984— 

14 ‘‘(i) is an employee performing service to which 

15 social security coverage is extended on that date 

16 solely by reason of the amendments made by section 

17 101 of the Social Security Amendments of 1983; or 

18 ‘‘(ii) is an employee of a nonprofit organization 

19 which (on December 31, 1983) did not have in effect 

20 a waiver certificate under section 3121(k) of the In-
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1 ternal Revenue Code of 1954 and to the employees 

2 of which social security coverage is extended on that 

3 date solely by reason of the amendments made by 

4 section 102 of that Act, unless social security cov5 erage had previously extended to service performed 

6 by such individual as an employee of that organiza7 tion under a waiver certificate which was subse8 quently (prior to December 31, 1983) terminated.’’. 

9 (2) CONFORMING AMENDMENTS.— 

10 (A) Section 215(d)(3) of such Act (42 

11 U.S.C. 415(d)(3)) is amended— 

12 (i) by striking ‘‘subsection (a)(7)(C)’’ 

13 each place it appears and inserting ‘‘sub14 section (a)(7)(F)’’; 

15 (ii) by striking ‘‘subparagraph (E)’’ 

16 and inserting ‘‘subparagraph (I)’’; and 

17 (iii) by striking ‘‘subparagraph (D)’’ 

18 and inserting ‘‘subparagraph (G)(i)’’. 

19 (B) Section 215(f)(9)(A) of such Act (42 

20 U.S.C. 415(f)(9)(A)) is amended by striking 

21 ‘‘(a)(7)(C)’’ and inserting ‘‘(a)(7)(F)’’. 

22 SEC. 4. EFFECTIVE DATE. 

23 The amendments made by this Act shall apply with 

24 respect to monthly insurance benefits for months com25 mencing with or after the 12th calendar month following 
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1 the date of the enactment of this Act. Notwithstanding 

2 section 215(f) of the Social Security Act, the Commis3 sioner of Social Security shall recompute primary insur4 ance amounts to the extent necessary to carry out the 

5 amendments made by this Act.

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