For most of its history, Social Security was a terrific bargain: our parents and grandparents most probably received significantly more benefits than they paid into the Social Security Trust Fund. The trust fund comprises the Old-Age and Survivors Insurance (OASI) and Disability Insurance (DI) Trust Funds (OASDI, collectively).
In most cases, because our family units could rely on these benefits, they were able to enjoy enough financial independence to send people like us to school so that we could become lawyers—productive and, in some cases, wealthy, members of society. For 75 years, the Social Security Trust Fund has helped enable American soci- ety to achieve far beyond the aspirations of its founders, ultimately providing more than subsistence to retirees by also protecting widows, orphans, and disabled people. The dignity provided to needy beneficiaries surely far outweighs the economic value of the funds.
However, financial experts have long predicted a future insolvency of the funds. A majority of Americans have invested in the funds, recognize their social utility, and do not want to burden their heirs. Although there have been legislative attempts to “fix” the system, there is no consensus how to do it. The Congressional Research Service reported:
For example, for workers who earned average wages and retired in 1980 at age 65, it took 2.8 years to recover the value of the retirement portion of the combined employee and employer shares of their Social Security taxes plus interest. For their counterparts who retired at age 65 in 2002, it will take 16.9 years. For those retiring in 2020, it will take 20.9 years.
Geoffrey Kollmann and Dawn Nuschler, “Social Security Reform” (October 2002).
The National Commission on Social Security Reform (informally known as the “Greenspan Commission” after its chairman) was appointed by the Congress and President Ronald Reagan in 1981 in response to a short-term financing crisis that Social Security faced at that time. Estimates were that the OASI Trust Fund would run out of money possibly as early as August 1983. Congress rendered a compromise that extended the retirement age from 65 to 67, through a deal that raised payroll taxes and trimmed benefits enough to keep Social Security solvent. See Jackie Calmes, “Political Memo: The Bipar- tisan Panel: Did It Really Work?” New York Times, Janu- ary 18, 2010. However, the legislation addressed only the immediate problem and did not address the long-term viability of the fund. See also Rudolph G. Penner, “The Greenspan Commission and the Social Security Reforms of 1983,” in Triumphs and Tragedies of the Modern Presidency, David Abshire, Editor. Washington: Center for the Study of the Presidency, pp. 129–31.
The George W. Bush administration commission deliberated on the issue and then called for a transition to a combination of a government-funded program and personal accounts (“individual” or “private accounts”) through partial privatization of the system.
President Barack Obama reportedly strongly opposes privatization or raising the retirement age but supports raising the cap on the payroll tax ($106,800 in 2009) to help fund the program. He has appointed a National Commission on Fiscal Responsibility and Reform, which is to report and offer another fix.
Current estimates predict that payroll taxes will only cover 78% of the scheduled payout amounts after 2037. This declines to 75% by 2084. 2010 OASDI Trust- ees Report, Figure II.D2, www.ssa.gov/OACT/TR/2010/ trTOC.html.
Although the congressional plan was to ensure solvency through Federal Insurance Contributions Act (FICA) tax, there is a private means to help: to also consider the humanitarian and charitable nature of the Social Security Administration (SSA), which has been possible since a legislative fix in 1972. Before then, bequests naming Social Security or a trust fund as a beneficiary could not be accepted, which caused prob- lems in administration of some estates. Money gifts or bequests may be accepted for deposit by the managing trustee of the OASI and DI funds. Section 170(c)(l) of the Internal Revenue Code lists the U.S. government among the educational or charitable organizations to which donations are acceptable. Gifts must be unconditional, except that the donor may designate to which fund the gift should be donated. If no fund is designated, the gift is credited to the OASI Trust Fund.
However, SSA has not publicized its charitable persona. Although the agency has received some gifts and bequests, they have been insignificant and not given consideration in a possible fix. The concept has been so unimportant to the experts that the Annual Statistical Supplement to the Social Security Bulletin does not specify how much the administration has received in gifts and bequests. Total revenue from gifts to the trust funds has been quite small. From 1974 to 1979 the most received in any one year was $91,949.88. Dur- ing that period, the average annual amount was only $39,847. In 1980, almost two-thirds of the gifts were less than $100. The median gift size was $50. One person, for example, donated $13.11. She arrived at that amount by applying 5.85% (the employee tax rate then in effect) to her benefit amount and donated it to help “‘shore up’ the sagging, dwindling Social Security fund.” However, the 2010 Social Security Trustees Report lists them as about $98,000 (www.ssa.gov/OACT/TR/2010/III_ cyoper.html#2). Compared to many other charities, this is a paltry amount.
Apparently, SSA has never done a feasibility study nor marketing research to determine how an aggressive campaign could raise funds to support Social Security, or how gifts and bequests could reduce the current esti- mates of impending doom. According to some estimates total deductions taken for all charities next year would be $413.5 billion. Estimates for fiscal year 2011 are that SSA will spend $730 billion. That amount is already cov- ered through “contributions” (taxes), but it is reasonable that charitable contributions to the trust fund could significantly lessen taxpayer exposure for impending doom, if not return the fund to solvency.
As lawyers, we have the capacity to remind our families, our clients, and the public at large that there is a way to contribute to help endow future generations in the pursuit of the same kind of social stability that Social Security provided to our parents and grandparents.
Daniel F. Solomon is an administrative law judge at the U.S. Department of Labor, member of the ABA House of Delegates, past chair of the National Conference of Administrative Judiciary, Judicial Division, president of the Federal Administrative Law Judges Conference, and author of Breaking Up with Cuba (McFarland, 2011). All opinions expressed are those of the author and not any organization or group.