Skip to main content
Find a Lawyer

THE TRILLION-DOLLAR BREACH OF CONTRACT: Social Security And The American Worker


Thursday, Aug. 30, 2001

George W. Bush managed to find seven Democrats who would support the partial privatization of Social Security. He placed them, along with seven Republicans, on a commission to evaluate the state of the Social Security system. The result? Unsurprisingly, the commission slanted its findings in favor of privatization.

What surprised virtually everyone, however, was the commission's frantic claim that the system would be in crisis not in the late 2030's, but two decades earlier, in 2016. Commentators across the board have been discussing whether the commission's new deadline for reform, and the criterion its members used to arrive at the deadline, make sense or simply serve Bush's political agenda.

The best way to understand what is at issue in the Social Security debate is to view the commission's proposal as an attempt to breach what is, in effect, a contract with the public. That contract was agreed to in the early 1980's and is still being honored today. Bush's commission, however, wants to violate it.

Opportunism and the Social Security Contract

Imagine that you have a wealthy friend, with whom you make a deal to share expenses in a fair manner. You agree to pay more than your share of the expenses for thirty years or so, because while you make a decent living now, you worry that the subsequent decades will be rather lean for you. You'd like to pay more now, and pay less later. For his part, he'll pay less now, but pay more later.

Your friend accepts the deal and, for the next twenty years, gladly accepts your overpayments. But then he tells you he wants to renegotiate. Under the current contract, his payments are about to rise, and he doesn't like that. You are (understandably) very upset. The whole reason you overpaid for so many years was precisely because you expected reciprocal treatment when the time came. "Of course you'll be paying more!" you tell him, "That was the deal!"

This describes the Social Security problem in a nutshell. For a few years in the late 70's, the Social Security system had started to run tiny deficits (less than 0.2% of the Gross Domestic Product). There was a sense that the system needed to be tweaked, so in the early 1980's President Reagan convened a bipartisan Social Security commission.

In the short and medium term, the commission knew there would be no problem at all. The final surge of the Baby Boom was just entering the labor force in the early 1980's, yet most of the boomers' parents were still working. Thus, both boomers and their parents were paying into Social Security, not taking from it.

For several decades, at least, the Social Security system would be in clover. Indeed, had Reagan's commission chosen to do so, it could have both cut payroll taxes and raised benefits, and still not run out of money for Social Security.

Looking ahead, though, the commission saw that the good times would not last. The first boomers would be eligible for full benefits in 2011. Since they had not produced nearly as many offspring per person as their parents had, a relatively small base of working people would be paying into the Social Security system to support them in their retirement years.

To many on the commission, this suggested that the system should run surpluses–a departure from the original design of the system, which was supposed to balance taxes paid in with Social Security payments sent out as closely as possible. Thus, just when the system was least in need of new funds, the payroll tax rates for Social Security were raised.

What should be done with the inevitable surpluses? One might think they should have been invested in the private financial markets. But remember that, in the Reagan years, the rest of the federal government was running deficits. And putting some government money (from Social Security) into the financial markets, yet still running a deficit, would have simply amounted to lending money with one hand, to the corporations in which investments were made, while borrowing it with the other, from the institutions that made loans to the government. In the aggregate, it was a wash.

As a result, rather than recommending that Social Security "invest" its excess funds in private securities, the commission recommended that Social Security turn them over to the Treasury. The long-term plan was this: For thirty or forty years, Social Security would run annual surpluses (which would be turned over to the rest of the federal government). Then, for the next thirty or forty years, Social Security would run deficits (financed by the rest of the federal government). The system would finally return to a rough balance between taxes in and payments out, when the boomers had all died off.

Who Pays the Taxes?

Even though the Social Security system is part of the government, the choice to finance deficits out of Social Security funds, as opposed to other funds, was not merely a technical matter. Instead, it made a real difference whether the deficit was funded out of Social Security or out of other government monies.

That is, in part, because Social Security taxes are among the most regressive taxes in the federal arsenal; they disproportionately affect poor and middle-income taxpayers. Social Security taxes are levied only on labor income (salaries and wages), not on capital income (capital gains, dividends, interest). But the highest income people in the country earn most of their money through investments (even structuring their executive compensation so that they receive stock or options, which result in lightly-taxed capital gains, in lieu of part of their salary). As a result, high-income people largely escape paying Social Security taxes.

Even if high-income people (such as professionals, for example) do pay Social Security taxes, there is a limit to how much they must pay. Currently, wage income above roughly $80,000 is not taxed. Thus, a person who earns $180,000 or $800,000 pays exactly the same number of dollars in social security tax (approximately $5000) as the $80,000 earner. For example, the law firm associate and partner pay only as much into the system as the senior secretary or computer systems person at the law firm.

And below the $80,000 cutoff, each dollar is taxed proportionately. Thus, to continue the example, a messenger or photocopy worker in a law firm, who makes very little, still pays proportionately the same in Social Security as the secretary or computer systems person.

Together, these features of the Social Security tax make it fall proportionately much more heavily on low and middle-income earners than on the rich. Income taxes, on the other hand, are among the most progressive taxes available. All income is potentially subject to tax, not just labor income, and the rates are graduated. (The estate tax, whose future is currently uncertain, is the most progressive tax in the fiscal system.)

For perspective, consider that nearly three-quarters of all Americans pay more in Social Security and federal excise taxes than they do in income taxes. The much-discussed income tax rebates that Democrats in Congress added to the Bush tax cut (for which Bush is now taking credit) were not paid at all to 34 million American adults, while another 17 million received only partial income tax refunds.

Therefore, collecting more money than necessary for Social Security in the 80's, in order to help finance the general budget, deliberately replaced a tax that falls mostly on the wealthy with a tax that falls mostly on middle-income and poor people.

The Contract between the Non-Rich and the Rich

In essence, therefore, the following deal was made in the early 1980's: the non-rich would pay too much in taxes for three or four decades. Then the rich would reciprocate by financing the inevitable shortfalls in the Social Security system by paying higher income taxes.

The famous Social Security Trust Funds are nothing more than an accounting of the terms of that contract. That is, when the trust funds go to zero, both sides to the deal will have paid and received equal amounts of money (after accounting for interest).

The argument that Social Security is going to go bankrupt typically relies on the idea that the trust funds will be depleted. The current best wild guesstimate is that that might happen in 2038. That calculation, however, depends entirely on low-ball estimates of economic growth over the next thirty-seven years. Less pessimistic (but still historically low) rates of economic growth would allow the system to remain solvent forever–meaning that working people (and their working children) who paid high amounts into Social Security in the 80's, 90's, 00's, and 10's will never quite be paid back for their sacrifices.

The current Bush Administration Social Security commission, though, wants to change the focus. They are saying that the system will be in crisis in 2016, which is the first year that the rich will need to start paying in. Rather than raising taxes on the rich — which would solve the "crisis" and fulfill the Reagan Era agreement — the commission is suggesting that the government should renege on the promise to working people that was made almost twenty years ago.

If the Agreement Is Breached, Does the Government Have A Defense?

Of course, even formal contracts among private parties are broken and renegotiated all the time. And sometimes breaches of contract are excused — for reasons including a unilateral, or sometimes a mutual, mistake about the facts. If the commission's recommendation is taken, and the Social Security agreement broken, is there an excuse?

The answer is no. There was no mistake when the initial agreement was made, unilateral or otherwise. Nor has there been any unforeseeable change in circumstances. The only circumstance that has changed appreciably is the political power of those who have always wanted to kill Social Security. Now in power, they will gladly manufacture any excuse to have their way, including the false notion that the system is in crisis.

On the contrary, the agreement is working almost exactly the way it was supposed to. None of the facts noted above are news to anyone who was paying attention. And the rich are fully capable of making good on their part of the agreement.

From a fairness perspective, too, the rich owe the non-rich big time, since low and middle-income taxpayers suffered to fulfill their part of the agreement. Their wages and salaries fell (in real, cost-of-living adjusted terms) until 1998. During the same time period, they also lost the benefit of important budget items. Most of the changes in spending that moved the rest of the federal budget into surplus by the late 1990's were taken directly out of the hides of poor and middle-class people. Yet they were still forced to over fund the Social Security System.

Meanwhile, the incomes of the wealthy went through the roof over the last twenty years, while their taxes, over the same period, went down. Compared to the early 1980's, the wealthy pay lower income tax rates today. The maximum marginal income tax rate has moved around some, but it is now lower than when the Social Security agreement was forget. It has dropped from 50% to 39.6%, and thanks to Bush's tax cut, it is slated to fall further over the next few years.

Capital gains tax rates are lower still. And it is also worth bearing in mind that the direct beneficiaries of a Social Security privatization plan would be Wall Street investment banks, whose high-income owners would be able to charge billions of dollars in fees to manage the new accounts.

If short, the rich have only gotten richer in the period since the agreement on Social Security was made. After making the non-rich pay to create a surplus for years, the rich should now fulfill their part of the agreement by paying into Social Security at a higher rate. If they breach, at the behest of the Bush commission, there will be no excuse.

One still might worry that taxing the rich will shrink the economy. But even if that were so–as the proponents of trickle-down economics want us to believe–we have already given the rich a break. Supposedly, this is what has allowed us to build up the economy before the boomers start to retire.

Because of this buildup, we will be passing a large, productive capital stock on to the next generation, making it easier for the economy to produce the goods and services that we will need. A relatively smaller work force will be able to produce more than enough for everyone, because of the large capital stock that they will inherit. The boomers and their parents are paying for that now. They should receive the benefit of it when they retire.

Forcing Moynihan to Stay Consistent

One interesting sidelight to the Social Security debate is that one of Bush's favored Democrats, former Senator Daniel Patrick Moynihan (who is co-chair of the current commission), was involved in brokering this agreement in the early 1980's. He, of all people, should know how important it is to honor an agreement he had a part in crafting.

The legal maxim known as contra proferentem states that, when interpretation of a contract is at issue, the contract should be construed in the manner least favorable to the party that drafted the contract. Moynihan joined with others to draft the Social Security contract in the early eighties. Now he is trying to re-write that deal now. But he knew full well what he was doing twenty years ago. As a drafter of the agreement, he cannot be heard to claim its plain meaning does not control.

Social Security is the most successful ongoing social program in history. It can and should be financed in part out of general revenues until the boomers pass on. Having the rich finance Social Security's deficits is only asking that they fulfill their part of an agreement from which they have dramatically benefited for decades.

Neil H. Buchanan, Ph. D., teaches economics at the University of Michigan, where he is also a J.D. candidate.

Was this helpful?

Copied to clipboard