The Social Security Bill: 25 Years After

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.
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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 rue 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 earl New Deal. On its twenty-fifth anniversary, August 14, 1960, there will doubtless be speeches 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 program. 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 belong 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 critics 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.

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