Podesta Strategy Memo: The Bankruptcy Bill
Podesta Strategy Memo: The Bankruptcy Bill
[Ed. note: This memo was co-written by American Progress CEO John Podesta and Senior Fellow Robert Gordon.]
In the past, some in Congress have viewed “bankruptcy reform” as an easy “pro-business” vote that won’t really hurt working families and won’t matter to Americans anyway.
That’s wrong on all accounts. Proponents say the bill will stop bankruptcy abuse, but the bill lets the biggest and wealthiest abusers off the hook. Even more important–and this is the point proponents are hoping to obscure–the bill does nothing to address why millions of middle-class Americans are going broke in record numbers. In fact, the bill makes life tougher on families who have done everything right but suffered because of structural problems in our economy.
If progressives press these points, Americans will see the fight over bankruptcy reform for what it is: a struggle between progressives defending families who play by the rules and conservatives standing with wealthy individuals and corporations that break those rules.
The Policy
The bankruptcy bill symbolizes much of what’s wrong with Washington today.
1. Manufacturing a crisis. Why are we even talking about this? We’ve seen the Bush Administration inflate the fiscal challenge facing Social Security into a crisis in order to justify a pre-existing agenda. The same has happened with bankruptcy. Advocates of bankruptcy “reform” point to “a crisis of both real and perceived abuse in the bankruptcy system.” (Testimony of Todd Zywicki, Senate Judiciary Committee). But they offer zero hard evidence of the abuse crisis. In fact, the vast majority of families go into bankruptcy because they’ve run out of money for reasons that aren’t their fault. According to a study supported by the American Bankruptcy Institute, 96.3% of people filing for chapter 7 relief just don’t have the money to pay their debts, even under an onerous means test. Half of families filing for bankruptcy have faced illness or high medical costs; nearly 9 out of 10 have faced health care problems, job loss, or divorce and separation. Most of these families have done everything they can to avoid bankruptcy–they’ve skipped doctor’s visits or prescriptions, for example, and a third have had their utilities shut off. As to the “perceived abuse” crisis, we are aware of no data suggesting that the American people are clamoring for this “reform.” Americans see a very real health care crisis that Congress shows little interest in addressing. When people worry about bankruptcy abuse, they worry most about abuses by fat cats that this bill doesn’t even tackle.
2. Ignoring the real crisis. As we all understand, the Bush solution to the Social Security “crisis”–privatization–doesn’t address real challenges like the Social Security shortfall and America’s low savings rate. The same is true here. The real bankruptcy challenge isn’t the 4 percent of debtors who abuse the system. The real crisis is the 96 percent who are broke when they file for bankruptcy. Two million Americans go bankrupt every year–1 every 15 seconds. If current trends continue, 1 in 7 families with children will go bankrupt by the end of the decade. These rising bankruptcy levels directly correlate with rising levels of consumer debt. And those rising debt levels in turn reflect a tectonic shift in our economy–away from a time when families could afford to save, and into a time when their wages are stagnant (+12% since 1978) but the costs of their health premiums (+163% since 1988), their tuitions (+170% since 1978), their mortgages, and their child care have risen dramatically. Because of all these trends, families stand on a precipice, and one sickness or pink slip sends them off the cliff, with no safety net below. Shutting down access to bankruptcy courts of course does absolutely nothing to address these challenges. As Elizabeth Warren has noted, it is like responding to a disease epidemic by shutting down the hospitals.
While conservatives press ugly and inaccurate stereotypes about the “deadbeats” who typically go broke, progressives should tell the truth about an economy that no longer works for the middle class. And while conservatives may want to shut down the hospitals, progressives seek to cure the disease by supporting health reform, help paying for college, and measures to create good middle-class jobs again.
3. Visiting the sins of a few abusers on millions of decent Americans. The central feature of the bill is a “means test” that would require borrowers seeking to discharge their unsecured debts in a chapter 7 bankruptcy to demonstrate their inability to pay. This sounds well and good–why shouldn’t abusers have to pay? But two federal commissions to study bankruptcy reform have rejected this approach for sound reasons. Under this bill, even the 96% of debtors who cannot pay would be required to pass a complicated test with multiple new forms. A credit card company seeking to recover a few extra dollars would be able to trigger a special new hearing. (Apparently, extending litigation is acceptable to the Bush Administration, as long as the parties extending it are mostly corporate creditors.) The result would be high new legal costs and heavy burdens for people with pennies to their names. Because of problems in the test–for example, a rigid method of calculating income based only on the prior six months of work–some people who deserve relief won’t be able to get it at all. In the end, the means-test will raise only modest sums from abusers, but will impose heavy new burdens on families already facing severe hardships.
Make no mistake: Abuse of the bankruptcy system is wrong, and we should support sensible reforms to stop it, from shutting down the homestead exemption to ending repeat filings designed to game the system. But as 92 law professors recently wrote, “this bill seeks to shoot a mosquito with a shotgun.” Hard-working families are standing behind that mosquito.
4. Want to talk about real abuses by the wealthy? No. The worst abuses of the bankruptcy system go unaddressed by this bill. In five states, multimillionaires can go into bankruptcy and keep their mansions because of unlimited homestead exemptions. This bill imposes some new limits on the homestead exemption, but rich people with good lawyers who plan ahead will be able to avoid those limits. The simple solution–capping the exemption–isn’t included in the bill. Just yesterday, the New York Times reported on how five states allow wealthy individuals to set up “asset protection trusts” that can’t be touched in bankruptcy. This bill does nothing to close this millionaire’s loophole either. And then there are the corporations that have used bankruptcy protection to slash the pensions and benefits of long-time employees, even as executives have walked away with sweetheart severance packages. Senator Richard Durbin offered an amendment in the Judiciary Committee to give bankruptcy courts more power to deal with these abuses, but it was also voted down.
Progressives should highlight the message of this bill: If you are a wealthy homeowner or a corporate insider and you can afford a good lawyer, it’s business as usual. But if you are a single mother who just lost her health care, watch out.
5. Rewarding Wrongdoing. We know the biggest winner from bankruptcy reform: the credit card industry. According to a Morgan Stanley Dean Witter analysis in 2001, credit card companies would gain up to 5% in profits from this legislation. (Profits are now $30 billion per year. You do the math.) Yet these same companies have played an integral role in triggering the rise of bankruptcy filings. As several studies have shown, consumer borrowing and consumer bankruptcy increased following a 1978 Supreme Court decision that effectively eliminated states’ ability to regulate credit card interest rates. The pricing structure now used by the credit industry–few up-front charges and enormous fees, penalties, and interest payments when balances are carried or payments missed–is designed to yield as much money as possible from families who are already at the financial edge. The credit card industry mails out an astonishing 5 billion solicitations per year, many targeted at minors with no jobs or income. Some practices of the credit card industry violate basic norms of fairness: for example, companies will now triple interest rates on existing debt based on missed payments to other creditors. (You put the $1000 fridge on the credit card at 12%, but now they are charging 35% on that $1000.) The bill does nothing to rein in any of these practices, nor even to impose the most elemental disclosure requirements. The Senate just rejected Daniel Akaka’s sensible proposal to tell customers how much they will need to spend if they make only minimum payments on their credit card bill.
Instead of taking on the abuses of credit card companies, this bill will encourage further abuse by allowing those companies to squeeze a few more dimes out of struggling families. Progressives should be pointing out the injustice of rewarding the credit industry for bad behavior. This really is Washington at its worst.
Bankruptcy Reform in Larger Context
The debate over bankruptcy reform also offers an opportunity for progressives to stand up for working-class Americans, particularly women. Forty percent of families filing for bankruptcy are in the second income quintile that is above the poverty level but still struggling. Women with children are especially hard hit by bankruptcy. More than one out of every six mothers will go bankrupt by the end of the decade, and families with children are about three times more likely to file for bankruptcy than households without children. Proponents of the bill are doing a great job representing the interests of credit card companies. Progressives need to speak up for the interests of these working class women and families.
Bankruptcy reform can speak to these Americans. Progressives can stand up for the burdened middle class who continue to feel squeezed by this economy, and expose the real agenda of conservatives that support this bill — to aid highly profitable credit card companies, not squeezed middle class Americans.
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This is great stuff.
What possible justification could there be for not filibustering this bill… honestly, we need to organize on the web to get senators to stand up and fight this, even if it eventually passes…
March 4th, 2005 at 3:20 pm“I CAN THINK OF FEW WORSE IDEAS, FRANKLY” (than bankruptcy reform) – LARRY LINDSEY, 12/17/1996. Accidental truth-teller Lindsey (Iraq war cost estimates, anyone?) essentially agreed w/ Podesta while Lindsey was on the Fed in 1996, saying lenders were too afraid of competition to stop lending to bad risks and so wanted “to create the illusion that something is being done when that really is not the case.”
March 4th, 2005 at 4:18 pmhttp://www.federalreserve.gov/fomc/transcripts/1996/19961217Meeting.pdf
(top p. 30 in txt, p. 33 in Adobe Reader). He almost – almost – sounds compassionate…
Check your spelling “StRategy” not stategy.
March 4th, 2005 at 4:50 pmTitle has been fixed. Thanks, kg.
March 4th, 2005 at 5:11 pmEARLY WARNING:
March 4th, 2005 at 8:33 pmLook for Bush (administration) to effectivly bring back debtors prisons. This is a roll back people, Not a move forward.
Notice: This bill is directed toward (I mean against) the people. Not the corporations.
John,
I posted this on my site and I think it really should be noticed being that Sen. Grassley is the chief sponsor: here.
On NPR this Tues. I was listening to Sen. Grassley’s interview with Diane Rehm and he was discussing his bankruptcy bill that is being debated in the House. He was drawing a comparison between credit card companies and alcoholic drink companies. His line of comparison was that we do not blame the company that made the alcohol when a person is weak and becomes an alcoholic while a credit card company can get blamed for the misuse of credit when a person is weak and uses their credit card too much. I am appalled that he would suggest that alcoholics are simply weak and that they are not affected by a disease. But I guess it is just easier to blame people and assign them fault than discuss societal and institutional issues.
A comment from Crooks and Liars: If Sen.Grassely draws the analogy of credit card debt to alcoholism, then aren’t these people suffering from a disease? Shouldn’t they be treated like people with an illness, and not a weakness? I can’t go a day without getting a credit card offer in the mail with a huge credit line, low interest rate, and those cute, preprinted checks with my name plastered across them. (a huge cause of identity theft) Isn’t that like sending an alocholic a bottle of hooch in the mail every day and expect that person not to drink it? Of course this bill does not address the credit card companies culpability in credit card abuse.
Here is the quote:
Diane: Do you feel, Sen. Grassely, that credit card companies bare any responsibility for signing up customers for credit interest rates and fees that most people don’t even understand.
Sen. Not any more than if we were to blame beer companies, which we don’t do and liquor companies which we do, because somebody drinks too much and becomes an alcoholic. You know.. we are not going to control everybody’s behaviour, but if somebody is weak and becomes and alcholic that is a problem. If somebody is weak and signs up for so many credit cards that is a problem. But that is an individual’s problem and you don’t blame the credit card companies any more than blame the liquor companies for producing a substance that can create a problem…
March 4th, 2005 at 10:10 pmI also posted an analysis on my blog. The question now remains, how do we make them pay a dear price for this? (and Social Security).
Clinton paid dearly for his attempt at reforming health-care (John can attest to this)… are the Repubs going to pay next year? It’s up to us.
Anyway, I’ve said this before here… We have to break down stuff. Do not lose your audience in the details. This is great stuff, and we need these points when we talk to the pundits of the other side…. And, this has a great value, as it re-enforces the impression that we know what we’re talking about. This is a new thing for us. In the past, we wouldn’t bother addressing those talking heads of the other side because ridiculous statements weren’t worth our attention…. Big mistake! We have to fight them, because a non-response gives credibility to even the most ridiculous argument…
You– all the think tanks and people who have access to the mass media–please refine the message, and keep repeating it! That’s how you (we) win. I’m not talking about lies, but just say the earth is round, don’t confuse the audience with the finer points (ie. the earth is not exactly round…. oh, and here are the physics behind our thesis…) The fact are available for whomever is interested in them. Just point to the sources, to the footnotes, don’t include all the details in the message.
We also have to be agressive not just respond to the claims of the other side….
This is my take: What everybody has to understand is this: THE RICH WHO FILE FOR BANKRUPTCY DO NOT DO IT FOR MONEY PROBLEMS! They do it to PROTECT their assets and KEEP their money!”
Let them respond to this!
And, John, we have to take names now, maybe some of them are your friends, but can you tell the active Dem base why there were only 24 Dems in the Senate who voted to CAP the APR at 30%?!!
I guess that wasn’t high enough! In plain English, the law comes after me for “loan sharking” but the sky is the limit when it comes to the banks! Usury fees & other charges seem to be just fine to our elected “wise guys.
I’m a polisci guy, but like a good comedian I know that if you lose the audience you bomb!
Andros
PS>Please don’t take this as a criticism of this great site. I check it daily and I’ve learned a few things. I’m just trying to start a dialogue here and whenever I can about how to get our message across. Soon, we’ll be looking to select our next national candidate… so, we should have a clear message & a vision, before we select the appropriate messenger to represent our party.
March 5th, 2005 at 11:59 amGreat analysis … but what’s the strategy?
Beat the bill? Score points now? Score points later? Beat GOP incumbents over the head with it in ‘06/’08? Split their coalition? Make it a point of discipline in ours? Send a signal thru Biden, by marking it an exit ramp on his road to the WH?
March 6th, 2005 at 12:42 pmA few thoughts on the “bankruptcy reform” law:
March 6th, 2005 at 4:34 pmFor the future: this legislation has come a long way without attracting a lot of attention. While this administration has to be stopped on SSI, I fear that the amount of attention that’s being paid to this issue serves to distract the electorate from a host of other harmful items on the legislative agenda. As it is, we’ve already got a class action “reform” that goes a long way towards preventing employees and communities from seeking redress for corporate negligence and malfeasance. Malpractice “reform” is certainly on its way towards a vote; while, the budget looks to make deep cuts in programs benefiting veterans, low income families and children.
About responsibility: the Repub’s make a big deal out of this and free markets. It seems to me that their ideology can be turned around on them on this point. Unsecured loans are a high risk, a risk the lender freely takes onto themselves in exchange for the high interest they get. That risk, however, necessarily brings losses with it. Protecting the lender from the consequences of that risk is undue interference in the market: it rewards a behavior that the market itself should be left alone to adjudicate — if it’s really too expensive to make these loans, perhaps the lenders should behave responsibly and not make them. To invert Grassley’s argument, aren’t the credit card companies more analogous to alcoholics, so addicted to high rates of return that they can’t stop themselves from making high risk loans?
Secondly, and this is a long term project, isn’t it time to start working on the society’s perception of just what precipitates the kind of crisis that leads to bankruptcy? The NYT’s editorial against this bill focussed almost exclusively on the injustice brought onto elderly people whose solvency was destroyed by medical expenses. It’s like unanticipatable health crises are the only excuse for bankruptcy. Clearly divorce can bring on such an unexpectable crisis. Clearly, cyclical and structural changes in the economy can do the same thing — when I worked in construction, there were seasonal slowdowns that could be anticipated; however, the unanticipatable national economic slowdowns always made the jobs hardest find and the available wages leaner. As I recall, this last eventuality is one of the main reasons that there’s national unemployment insurance. Isn’t it time to start working on changing the seemingly widespread perception that. barring individual catastrophes, people’s economic success or failure is wholly a product of their own initiative and drive?
Very informative. The devil is in the details, which are usually glossed over in bills such as this. Capturing the essence, then publicizing in a short, concise manner reaches more people. Simplifying positive action to be taken by convinced readers helps as well. The Progress Report does a good job on these points most of the time, and is often what I believe is the most honest publication available.
March 7th, 2005 at 11:42 amWhile I support the notion that debtors should pay, this is the wrong bill at the wrong time. I do see plenty of people here in LALA land who buy more house, car, other luxury toys and goodies they can’t afford and then file bankruptcy and start again, I understand that the very rich are exempted and the poor hit even harder by this bill. When we have universal healthcare, a substantially higher minimum wage, reasonable limits on all kinds of loans and loophole plugging for the rich, a return to this issue will be appropriate. In the interim, this bill should be blocked.
March 7th, 2005 at 5:00 pmThis is a superb, concise analysis. John Podesta and the whole staff of all the different wings of the Center are doing God’s work, truly.
John, Judd, anyone, what on earth are our elected Democrats thinking of. Especially our Senators. Okay, I’m resigned to losing Biden on this one; Delaware is the home of credit cards, but thirty % interest rate isn’t high enough?
How is it possible the Democratic caucus in the Senate doesn’t understand that this bill, just like the not so future issue of tax reform are both centrally connected to defeating Bush on SS, and using that defeat to take back the congress, or at least a piece of it in 2006. I’m not even mentioning the issue of making those bloody tax cuts permanent. It’s the talking points on a flagrantly unfair bill like this one that supply the blood and guts to the argument Democrats always have such trouble making – i.e., that the policies of Bush and the Republicans are aimed at servicing a tiny subset of the American population; a bill like this bankruptcy bill spells that out in painful, hideous detail.
Is there any chance the a gaggle of Senators who realize what a rotten bill this is might be able to at least start a filibuster, talking and talking about the bill, and get the rest of the Dems to hold off until the last minute to invoke cloture; then the party as a whole can at least claim that its majority came down against the bill.
Check out My DD; Chris has a really important argument about why Democrats aren’t getting the kind of push for the party as a whole from the progress they’ve made with the public on SS; falling for this bill is one of the reasons why.
March 7th, 2005 at 11:45 pmGreat work! I was astounded to hear some of the hearings. We know that Delaware is the home to some of the big boys, but it was a surprise to hear how the man from Delaware was shamelessly hacking for them.
March 8th, 2005 at 12:35 amh You know, the American people make a lot of sacrifices for this country. We send our children off to fight. We have given generously our wealth and our sweat and blood to make this country what it is.
We support corporations too. We give them our wealth and our labor. We provide them the capital they need to survive. It is people that have delivered the creativity that has made them successful.
We need to get something back and we deserve to be treated fairly. Over the last several years, the American people have been getting the shaft from corporations and the government. We give them everything we can spare, and their debt is placed squarely on our backs in return. How come corporations and the government get support when they fall on bad times, but the people are abandoned? That is wrong. People are more important than corporations, and the government derives its power from the American people.
The people take care of America, and America must take care of us.
March 11th, 2005 at 5:32 pmHow, and what can we do, when most of us reading here know these details, but video media, which is the source most Americans use for news, glosses over ala “Bad News” by Tom Fenton.
Where’s the mechanism for broad dissemination (i.e., mass market rather than the fragmentation of information today).
This is the same type of stealth politics that will be ‘played’ in “Tort Reform”, which should instead be focusing on the reducing the damages brought on by the irresponsible AMA and Corporate Community. True tort reform would look to reduce the possibility of damages, rather than limiting awards for damage.
How does truth get through a hollowed out, irrepsonsible, corporate media?
March 17th, 2005 at 11:42 pmPlease tell me THIS Podesta isn’t making money off his father’s name while decrying “the wealthy”.
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