THE SOCIAL SECURITY BILL
25 years After
(Note: This article originally appeared in the Atlantic Monthly, and is reprinted by permission.)
In 1933, together with many of his youthful Harvard Law School classmates, THOMAS H. ELIOT went to Washington, becoming assistant solicitor of the Department of Labor under Frances Perkins. She appointed Mr. Eliot as counsel for the committee which drafted the Social Security bill. After serving as general counsel for the Social Security Board, he returned to Massachusetts, taught at Harvard was elected to Congress, and in 1952 joined the faculty of Washington University in St. Louis.
TWENTY-FIVE years can play tricks with memory, but I cannot help suspecting that Miss Frances Perkins, for twelve years Secretary of Labor and my onetime boss, has been a willing victim. It appears that Miss Perkins, in talking about the enactment of the Social Security Act in 1935, has taken to telling a story about me and old Congressman Robert Doughton, who as chairman of the Ways and Means Committee had the job of steering that long and complicated measure through the House. Mr. Doughton was not particularly enthusiastic about social welfare. He had little interest in the bill, and even less knowledge of its details. He needed someone beside him during the debate to provide him with the answers to hostile questions. Unfortunately, only representatives and congressional employees are allowed on the floor of the House. I was neither, but as Madam Secretary now tells the tale, I dressed in blue serge knickerbockers, played the part of a House page, and bearing nonexistent messages dashed to Mr. Doughton's side each time he floundered to whisper words of wisdom into his ear. Well, it would have been fun! And in those days I did look quite youthful, but a six-foot man of twenty-seven simply cannot masquerade as a page.
On having this yarn recounted to me, I turned Edward Everett Hale's "Look forward and not back" motto face down and decided to do some reminiscing of my own. After all, the Social Security Act was an historic innovation; along with the dams on the Tennessee and Columbia, perhaps the most durable achievement of the early New Deal. On its twenty-fifth anniversary, August 14, 1960, there will doubtless be speeches and articles and columns full of statistics about the millions of people it has helped or the millions of dollars it has extracted from our pay checks. And someone, perhaps, will publish a solemn, scholarly legislative history. I could do that, for as counsel to the President's committee on economic security, in 1934 and 1935, I was neck deep in the development of the progra. But personal recollections of the small decision, the casual conversation, are sometimes just as revealing as are statistical data and more likely to evoke the atmosphere in which history is made. Public policies are not made in vacuo.
The Potomac atmosphere in early 1935 was one of importunate enthusiasm--of aggressive confidence, too, with one great exception. That exception, which colored the thinking of even the lowliest contributor to policy making, was grave uncertainty as to the Supreme Court's view of the constitutionality of New Deal legislation. To be sure, the Schechter decision, which invalidated the NRA and provoked President Roosevelt to angry comments about the "horse-and-buggy Court," was not handed down until late May. Long before that, however, all of us working to prepare social insurance legislation were aware of the constitutional difficulties involved. A young lawyer saddled with more responsibility than he should have accepted (I not only accepted it, I clung to it) was unceasingly conscious of the threatening shadow cast by the Constitution or the justices or both.
The bill was introduced on January 17. It was not ready for introduction. The President's committee headed by Miss Perkins had not agreed on its main features until after the new year began; in fact, one member of the committee, Secretary Morgenthau, at the last moment withdrew his agreement to the proposal's financial provisions. But, as everything in the program except old age insurance--unemployment compensation, old age assistance, aid to dependent children, child welfare--depended on complementary state action, speed seemed desirable. Almost all of the state legislatures were in session in 1935. They would not meet again in regular session for two years, so unless Congress acted quickly, state action might be long postponed. It seems odd now that anyone could have imagined that Congress would pass such a long and novel measure in the space of a few weeks. Yet at the time it seemed possible. Perhaps we were still bemused by the unique performance of Congress in the spring of 1933, when measures of great import had been rushed so swiftly to enactment. But those "hundred days" were unique in peacetime legislative history, and are likely to remain so.
Originally entitled the Economic Security bill, the legislation recommended by the President's committee was mimeographed and introduced in the Senate by Robert F. Wagner of New York and in the House by David J. Lewis of Maryland. Later on the same day, Chairman Doughton got a copy of it, put his copy into the House clerk's hopper, and--such is the influence of seniority and committee chairmanships--persuaded the clerk to give it a lower number than had been given to Lewis' copy. This made it seem that Doughton had introduced the bill first, and newspapers began calling the measure the Wagner-Doughton bill. Representative Lewis, a little pepper pot of a man with a deep and passionate commitment to social welfare, sputtered and swore. Then he went to work to understand every sentence of the bill and to master the arguments in favor of it. It may not have been called the Wagner-Lewis bill, as it should have been, but when eventually it was debated, the House of Representatives gave Lewis a standing ovation as he stumped down the aisle to speak in its behalf.
Hostile newspapers--which comprised most of the press--promptly assailed the new bill as a hodgepodge, an ill-drafted legislative monstrosity. Their criticisms on this score were uninformed. The chief complaint was that various subjects were scattered throughout the measure: thus, one chapter, or title, imposed a tax for old age insurance while the provision for old age benefits appeared in a separate title many pages distant. The critic did not know--or perhaps they did--that this awkward arrangement was deliberate. It was designed to make it easier for the Supreme Court to sustain the measure's validity--not to fool the court but to give the justices a technical peg on which to hang their hats if they so desired. Meanwhile, some social security experts joined the chorus, citing other examples of bad draftsmanship; again, their examples did not prove their point. They objected to substance, not form; they preferred ways of promoting unemployment compensation different from the tax-offset device included in the bill.
YET the original bill was certainly not well drafted. It was, in fact, a hodgepodge, not of unrelated subjects but of drafts prepared by various people, drafts which I either accepted in toto (the old age insurance provisions ably but hurriedly prepared in the Treasury Department) or edited far too hastily (the welfare titles written in the Children's Bureau). Inevitably, too, it reflected my heedless failure to resolve many small but significant policy issues which had been discussed little or not at all by the President's committee. Drafting is not just a technical job; it requires foreseeing every possible question that may arise and eliminating every ambiguity.
This I really learned in the winter of 1935 from a great and unsung teacher. He was Middleton Beaman, legislative counsel of the House of Representatives. A tense, caustic, redheaded Yankee, he reminded me of a Vermont schoolmarm; and it was this role that he played when he and I appeared, day after day, at the executive sessions of the Ways and Means Committee. The committee's procedure was to read the bill, paragraph by paragraph. No sooner was a sentence read, however, than Mr. Beaman was on his feet asking questions: Where the bill said that employees should receive old age benefits, did it mean to include American employees stationed abroad? If the committee members said No, then Mr. Beaman, terrierlike, would ask: What about a contractor in Detroit who sent his regular crew on to a job for a few days in Windsor, Ontario? What about seamen on the Great Lakes? A cook on a ship that went from Seattle to Alaska, through Canadian waters? He insisted on answers, and the committee members generally complied.
Not always did they comply quickly. Some days we would cover several pages; on others, only a few lines. On most committees there are a few bellwethers, and Ways and Means was no exception. Mr. Beaman won some small bets with me as to the progress we would make on particular days, bets which we made as the members were assembling. It took me several days to catch on. Mr. Beaman based his predictions not on the complexity of the bill's subject matter but on the behavior of one member as he first entered the room. That one member was Fred Vinson, later Chief Justice of the United States. If Vinson, on entering, walked directly to his seat, said an amiable "Good morning," and began perusing the bill, we were pretty sure of having a productive day. But if he came in either scowling or whispering jovial stories to a couple of his colleagues, the morning could be counted as lost.
Vinson was the dominant influence, but there were other committee members who could hold things up or make them march. The able and ever-courteous Jere Cooper of Tennessee, reluctant to say he opposed anything, would wrinkle his brows more painfully and say, "I'm just--ah-wah --just a country boy, and I just can't seem--ah-wah--can't seem to understand." On the Republican side, Alvin Treadway, the big bull-voiced hotelkeeper from Massachusetts, took a vast interest in two relatively small matters, forcing each to be discussed for a whole morning. One was the plight of hotels, which would be subject to a payroll levy, in competition with those cabins that preceded today's motels, where there were no bellboys or waitresses and so no payrolls to tax. The other was whether janitors in private schools should have social security. Why this was worth three hours of discussion was a mystery; Mr. Treadway's interest seemed to stem from the fact that his grandson attended an Ivy League boarding school, but the latter, surely, was not on the verge of bankruptcy.
On Ways and Means in 1935 was another Massachusetts man, one who later attained national distinction--John W. McCormack, who has been the Democratic floor leader since 1940. McCormack took little part in the discussion, but his quick thinking saved an important section of the bill from temporary extinction. Angered by the committee's refusal to exempt incorporated farms from the unemployment compensation tax, a rural member suddenly moved to eliminate all provisions relating to unemployment compensation. The roll was called, and the vote stood at eight to eight. Up to that moment, there had been no proxy voting nor even the mention of such a possibility, but now came Treadway's deep and portentous voice: "I have the proxy of our colleague Dr. Crowther, and he votes Aye." Instantly McCormack, looking blandly at the ceiling, spoke in a rapid monotone: "I have the proxies of Mr. Cullen and Mr. Sullivan, and they both vote No." Sauce for the gander!
Odd things happened in those winter weeks. For three days, on the direction of the committee, Mr. Beaman, Alanson Willcox of the Treasury, and I worked late into the night drafting new sections to include benefits for survivors of people covered by old age insurance. When we presented our draft, the committee discussed it for five minutes and then voted to drop the whole subject. (Not until the law was amended in 1939 did old age insurance become the Old Age and Survivors Insurance that we know today.) The most far-reaching innovation in the bill, old age insurance itself, was debated only briefly, Republican members deciding to confine their opposition to a minority report. And the members of the committee, after picking the brains of Professor Edwin E. Witte of Wisconsin, a walking encyclopedia on welfare and social insurance matters, who testified for four full days, turned on him vengefully when they thought he had divulged to a Wisconsin citizen how one congressman had voted on a particular paragraph. Actually it was I who had perpetrated this grave misdemeanor. I said so, whereupon the members praised me extravagantly for confessing.
When in April the bill at long last came to the floor of the House, I was a wiser young man than I had been three months before--not a sadder one, to be sure, but thanks to Mr. Beaman, a much humbler one. I was also exhausted. Far from dressing up as a page, I took to my bed with a high fever, and on arising, went off to bask in the spring sunlight of the Great Smokies. So I missed the debate, missed the ovation for Davey Lewis, missed hearing Knutson of Minnesota shout that I was "wet behind the ears" and Fred Vinson somewhat less accurately refer to me as the "Assistant Secretary of Labor." I didn't witness the final clash, when the Republican minority voted almost solidly to strike out all provisions for old age insurance, or the anticlimactic roll call with its overwhelming majority in favor of the passage of the bill. Miss Perkins telegraphed me as soon as that roll call ended--a typical act of thoughtfulness by a great lady.
Two months later, the bill passed the Senate. Its consideration there had to be preceded by two weeks of deliberation by the Senate Finance Committee, presided over by the shrewd and witty Pat Harrison of Mississippi. With his small potbelly, receding chin, and sleepy drawl, Harrison looked like a rather droll and lazy fellow; actually, he was keen, industrious, and determined. Emotionally, he was no more committed to social welfare than Doughton was. However, assuming full responsibility for getting a respectable bill through the Senate, he ruled his committee firmly; and on several warm evenings, his young assistant Leonard Calhoun and I sat on Harrison's front porch going over every detail of every section, while the senator rocked in his chair, puffed his cigar, asked sharp questions, and absorbed the answers.
In the Finance Committee, the chief substantive contribution was made by Senator LaFollette, "Young Bob," that "small bubbling fountain of common sense," as Rebecca West once called him after watching him at a committee hearing. But the man whom I watched with fascination was a Republican senator from New Hampshire, Henry W. Keyes. My father had been at college with Senator Keyes. When I was home for a weekend in early May, my father said to me, "If I were a betting man, I would wager that in the committee meetings [which were about to begin] Harry Keyes will not say ten words." So I looked and listened. Each morning, the venerable senator smiled behind his mustache and bowed politely to one and all. Each time the committee was polled, instead of saying "Aye" or "No" he nodded or shook his head. As far as one could tell, he had no more voice than a giraffe. Finally the committee finished reading the bill. Chairman Harrison embarked on a flowery oration of gratitude and praise for all and sundry--his colleagues, Mr. Beaman, the Senate draftsmen, Leonard Calhoun, me, the President's committee. As he paused for breath, Senator Keyes looked up. Astonishingly, he opened his mouth; unbelievably, he spoke: "I move we adjourn."
The bill became law on August 14, 1935. And still no one could be sure that it would last. Was it constitutional? Certainly its welfare provisions, grants-in-aid to the states, were valid, but what of unemployment compensation and old age insurance? In regard to unemployment compensation I had been tiresomely insistent during the drafting of the bill in proposing a federal tax on employers which would be "forgiven" to the extent that the employers paid contributions into state unemployment compensation funds. I was insistent because there was a judicial precedent for upholding this method of persuading the states to act and because Justice Brandeis had casually mentioned that precedent to his son-in-law, a leader in the unemployment compensation movement in Wisconsin. With respect to old age insurance, the Constitution gives the Congress power to tax and spend for the general welfare. But was a particular tax on employees, who would eventually be paid benefits in amounts measured by the taxes they had paid, a proper exercise of this congressional power? Or was it an attempt to establish a compulsory retirement insurance system, and if so, was it beyond the authority of Congress? We could not know the answers to these questions until a May morning in 1937, when Justice Cardozo began to read the court's opinions upholding both phases of the Social Security Act.
By that time I had been general counsel of the Social Security Board for nearly two years. It seems hard to realize now, but I had had no idea of reaching such an exalted position until after the bill had passed both House and Senate and was in the final days of interchamber conference. The possibility--nay, probability--hit me hard and suddenly early one afternoon when Leonard Calhoun drawled, "Tom, when you're general counsel of this new board that's going to run this program, I'd like to be one of your assistants." (He was.) Later that day I drove to an outdoor cocktail party, my mind spinning with the wheels. I had just turned twenty-eight; could I conceivably handle this assignment? I had learned a lot, but I was still too young. Nevertheless, maybe--yes, I could swing it if I could have at my right hand an older man, a steadying influence, a person of great experience and mature judgment. No sooner had I arrived at my destination than I saw among the guests, at the far corner of the terrace, the seasoned lawyer I needed. I didn't know him very well, but I knew he was the man. I walked over to him and said abruptly, "If I'm made general counsel of the Social Security Board, will you be my first assistant?" He looked at me calmly for a few seconds, smiled slightly, and answered, "Yes." He was thirty-two years old.
In truth, when writing recently of those New Deal years, Gerald Johnson chose the most appropriate quotation:
Bliss was it in that dawn to be alive, But to be young was very heaven!