By Brenton Smith
Heartland Institute

https://www.thecentersquare.com/

I am not a constitutional lawyer, but I see nearly zero chance that funding Social Security out of the general fund would be allowed for any significant length of time. It is at best a fool's errand to hold out hope that Congress will be able to float the program’s imbalances out of the general fund.

This thought comes to mind because of the 2022 midterms and the inherent contradiction between the importance of Social Security and the weight that voters have placed on the program on Election Day despite two decades of continuous financial decline.

No group should be more interested in the prospects of the program than women who are over 50 years old. Yet, an AARP poll revealed that Social Security placed a distant fifth in voting priority in the 2022 midterm elections among people in this segment of the population.

At this point, a woman turning 77 today expects on average to outlive the system’s ability to pay scheduled benefits. If that voter doesn’t care, no one does.

The only explanation for the indifference to the program’s ability to keep its promises that I can imagine is voters have reached the conclusion that Congress will simply never allow Social Security to fall into crisis.

Apparently, Americans have faith in politicians that would make the Pope covet.

To provide an example, one of my readers wrote to me, “And, as I pointed out, the general fund is already going to be on the hook for the SS shortfall, one way or the other.” The reader reasons that no matter what happens, he will get paid. Hence, he has nearly zero interest in the prospects of the system.

It is a misplaced faith. The general fund is not on the hook, and likely never will be. Funding Social Security from the general fund would likely be deemed unconstitutional in court.

Yes, Social Security was determined to be constitutional in 1935 in Helvering v. Davis. That doesn’t mean that a legislative change in the way that the program is financed would be exempt from judicial review.

Just because the law is called the Social Security Act does not grant the pieces and parts of the law a special status.

The Supreme Court is not interested in the wisdom of how the power is exercised. Rather it deals with deciding whether that power is granted by the Constitution to Congress. In the Helvering case, the Supreme Court held that “Congress may spend money in aid of the ‘general welfare.’” Further, the Court held that the “concept of welfare is shaped by Congress, not the states.”

The Court added a caveat that earns your attention: “The (definition of welfare) belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power is not an exercise of judgment.”

Here is the problem. Social Security is not universal nor equal. The highest payment goes to the man or woman who had the best job over the longest period. It is very difficult to explain taking money from the working poor to provide a stipend to the wealthy retiree particularly when many of our poorest seniors are not even eligible for benefits.

When the money for benefits comes from the general fund, someone is going to ask whether giving money to the idle rich is a sound way to aid the general welfare of the nation. The benefits formula works when the money comes from workers who are contributing to a plan that pays them a future benefit. It is very different when we take money that could be spent on other priorities.

Back in 1935, the Court indicated that it wasn’t terribly interested in the wisdom of the benefits arrangement. According to the Court, the law was a well-researched solution to a well-established problem. In its decision, the Court cited congressional studies, presidential commissions, advisory councils, and extensive public hearings.

The Court ruled, “A great mass of evidence was brought together supporting the policy which finds expression in the act. “

Imagine if this standard were applied to an annual subsidy from the general fund. Funding would require a similar exercise of judgment demonstrating that Congress thoughtfully valued this expense against every other expense that money might have served. That is every year, where the reasoning is we are spending the money today because the politicians of the past didn’t do their job. In the coming years, it would behoove voters of all ages to take this issue more seriously.

In 1935, the Supreme Court allowed Congress the power to provide a legislative solution to a well-documented problem that threatened a growing number of Americans. Today, the Court would be tasked with considering whether Congress should be given the power to deal with a very different problem: Voters have not paid attention.

Brenton Smith (think@heartland.org) is a policy adviser with The Heartland Institute.