ERISA at 40 – The past puts pension law in perspective

ERISA at 40 – The past puts pension law in perspective

The Employee Retirement Income Security Act (“ERISA”), the law governing private retirement plans, has changed quite a bit since it was signed into law in 1974. There have been numerous amendments, court cases, regulatory actions and other developments. ERISA has had such an impact on Americans’ everyday lives that it has become a field of law unto itself.

ERISA buffs frequently come together to explore the law as it is now and to discuss how it impacts current and future retirees. But an in-depth exploration of ERISA’s past is a much rarer occurrence. On October 25, 2013, lawyers, actuaries, and other professionals from all corners of the pension world gathered in Philadelphia for a unique, day-long discussion of the history behind the law. The topic?  ERISA at 40 – What Were They Thinking? An Oral History of the Employee Retirement Income Security Act.*

The symposium, hosted by Drexel University’s Earle Mack School of Law and co-sponsored by the Pension Rights Center and the American College of Employee Benefits Counsel, was organized by Norman Stein and James Wooten. Norman Stein is a Drexel University law professor and PRC Senior Policy Advisor and James Wooten is a professor at SUNY Buffalo Law School and author of The Employee Retirement Security Act of 1974: A Political History. Participants in the symposium represented a Who’s Who of ERISA, including Assistant Secretary of Labor of the Employee Benefits Security Administration, Phyllis Borzi, and J. Mark Iwry, Deputy Assistant Secretary of Treasury for Retirement and Health Policy. The symposium also featured several individuals with ties to the Pension Rights Center: PRC Board members Dan Halperin, Regina Jefferson, and Ian Lanoff; Fellows Dianne Bennett, Bill Bortz, Frank Cummings, Bob Nagle, and Henry Rose; and PRC’s Director, Karen Ferguson.

What made the event truly unique was the participation of people who were involved in drafting ERISA, ensuring that the bill became law, and those responsible for dividing responsibilities among the agencies that enforce ERISA’s key provisions. A highlight was the ability of the audience to ask ERISA’s drafters, “What were you thinking?”

Among the tidbits we learned:

• The fallout from Watergate placed pressure on those hoping to pass the bill to get everything done before President Nixon’s impeachment. They succeeded in getting ERISA passed by Congress, but it was signed into law by President Ford.
• The agreement between the Departments of Labor and the Treasury as to what role each agency would play in administering ERISA was decided over Chinese food and written down on a paper napkin.
• ERISA didn’t have support from powerful interests but it passed anyway because of media attention spurred by congressional hearings and the resulting overwhelming support it received from regular Americans.
• PRC director Karen Ferguson noted that one of the major shortcomings of the law was that it provided no help for workers and retirees wrongfully denied their pensions. That’s why the Employee Benefits Security Administration, the Pension Rights Center and the Pension Counseling and Information Program are so important – we work to help workers and retirees understand and enforce their legal rights.

By answering tough, substantive questions about why the law contains certain provisions, the law’s unintended consequences and problems the law failed to fix, the panelists provided valuable context and perspective for those of us who work with the law on a daily basis.

*This symposium was inspired by a session held at the 2012 National Training Conference for the U.S. Administration on Aging’s Pension Counseling and Information Program. Visit our YouTube channel to see video from that 2012 session featuring PRC Fellows Frank Cummings, Bob Nagle, and Henry Rose.

** Photo provided courtesy of Drexel University’s Earle Mack School of Law.

Related links:

• Drexel Law Review symposium examines landmark ERISA law through historical prism
• Pension Rights Center’s Storify feed featuring live tweets posted during symposium