By David E. Mastagni and Taylor Davies-Mahaffey
Mastagni Holstedt, APC

On November 12, the U.S. House of Representatives passed H.R. 82, the Social Security Fairness Act of 2023, by overwhelming bipartisan margins. This bill has been top priority for public safety labor nationwide, including the IAFF and PORAC, because it eliminates the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO), provisions that unfairly punish retired police officers, firefighters and other public employees. Although this bill was co-sponsored by 303 of 435 members of the House of Representatives, it had stalled in the powerful House Ways and Means Committee for nearly two years.

PORAC President Brian Marvel said the bill’s advancement “marks a critical victory in our long fight for fair retirement benefits for peace officers and public servants.”

This bill was introduced in January 2023 with the purpose of repealing provisions from the Social Security Act (42 U.S.C. 401, et seq.) that reduce Social Security benefits for individuals who receive other government benefits, such as state or local pensions. Specifically, this bill eliminates the Government Pension Offset, which reduces Social Security for spouses, widows and widowers who also receive their own government pensions.

Additionally, the bill eliminates the Windfall Elimination Provision, which reduces Social Security benefits for individuals who also receive a pension or disability benefit from an employer that does not withhold Social Security taxes from the individuals’ paychecks. The bill strikes 42 U.S.C. 402(k)(5), which outlined how an individual’s Social Security benefits would be reduced if they received additional periodic benefits from federal, state, local or any other government service within the last five years.

As such, the provisions outlining spousal benefits are only contingent on the restrictions put forth in Section 202(q) and no longer are limited by Section 202(k)(5) should the spouse (and widow/widower) receive benefits of their own. Subsection (q) reduces a spouse’s insurance benefits should the employed individual begin receiving retirement benefits before reaching the statutory retirement age. Elsewise, Section 202 subsections (b)(2) and (c)(2) dictate that spousal benefits for each month are to be one-half of the primary insurance amount of their spouse (or, in the case of a divorcee, former spouse). Under subsections (e)(2)(A) and (f)(2)(A), a widow’s or widower’s benefits for each month are to be equal to the primary insurance amount of their spouse.

The bill also struck provisions altering the computation of benefits under the Social Security Act. Section 415 subsections (a)(7), (d)(3) and (f)(9) were all struck, which covered delayed retirement, continued work after retirement and the Windfall Elimination Provision. Subsections (a)(7) and (f)(9) increased benefits for an individual who delayed claiming benefits beyond their full retirement age, thus incentivizing individuals to remain actively working, capping at age 70. Subsections (a)(7) and (d)(3) comprise the Social Security Windfall Elimination Provisions, which reduce an individual’s Social Security benefits to reflect the person’s entitlement to other benefits (such as old-age insurance or retirement benefits).

This bill repeals the Windfall Elimination Provision and Government Pension Offset for individuals as well as their spouses, widows or widowers who receive benefits of their own from the government. These eliminated provisions have unfairly reduced retirement benefits for peace officers, firefighters and their families as well as other public employees merely because they and their spouses can also claim alternative benefits. Additionally, by incentivizing increased service beyond the retirement age and penalizing early retirement, individuals are compelled to make decisions to keep working when doing so may not benefit them or their families.

By eliminating these provisions, firefighters or officers who are forced to retire early due to the demanding aspects of their careers can finally receive the full financial security in retirement benefits that they spent their entire career paying into. With the passing of this bill, the House of Representatives has made a critical step in ensuring financial stability for public employees in their post-retirement years.

Now that H.R. 82 has passed the House, the bill moves to the Senate. The Senate version of this Bill has 62 co-sponsors, so the filibuster should not prevent enactment of this important bill.

IAFF General President Edward Kelly aptly stated, “[w]hile we’re proud of the work our team did to get this bill through the House, this is only half the battle. Now it’s time for Senators to step up and send this bill to the president’s desk.”