Memo To Democrats: Repeal Bush's 2005 Bankruptcy Law

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was arguably the most odious piece of domestic legislation the previous congress passed. President Bush and his party typically cited it as among their “accomplishments” and the media seldom questioned whether it was a good idea.

This “accomplishment” amounted to nothing less than class warfare waged on behalf of the super rich against the little guy. Indeed, it illustrated the sheer indecency of the Republican Party machine and pervasive influence of banks, credit card companies and the financial services industry as a whole.

Sadly, the Republicans were aided and abetted by the support of eighteen Democrats in the Senate – including Minority Leader Harry Reid. For the record, New York Senator Hillary Clinton did not vote at all. Over seventy House Democrats supported the measure as well. Others who did not vote for it supported the Republicans in their parliamentary tactics and maneuvers to get it through. Senator Joe Lieberman of Connecticut was especially guilty of two-faced behavior – denouncing the legislation while supporting Senator Bill Frist’s efforts to shut off cloture.

A few such as Senator Charles Schumer of New York valiantly put up a fight. Schumer actually tried to attach “poison amendments” to the new law and make it more difficult for people who blow up abortion clinics to declare bankruptcy in paying for their legal defense. That tactic worked for a couple years but without the support of the Democratic leadership the bill’s final passage could not be prevented.

Well now the political landscape has changed with newly elected populists poised to take control in January. Senator-Elect Jon Tester for example doesn’t appear to be the type to sell out his constituents for heavy contributions from Bank of America. While Democrats are culturally diverse, repealing the 2005 law is a meat and potatoes issue the entire party can rally behind.

More importantly, Democrats have a moral obligation to make a stand and repeal the legislation after their fecklessness in the previous congress. They also have an opportunity to demonstrate they are on the side of working people and small business entrepreneurs.

Here is some background and context for those not familiar with the issue. During the economic boom of the 1990’s (remember that?) banks went on an irresponsible lending spree. They issued credit cards to people with either poor credit history or none at all. It was not uncommon for someone of questionable income or even no income to receive a platinum credit card from Citibank, Chase or Capitol One with a generous credit line.

While attending graduate school I interned at the corporate library of American Express in 2001. I maintained a journal of my experience and memorialized a conversation with a Vice President I occasionally performed research for and was on good terms with. I asked this gentleman why American Express was targeting less affluent people and wondered if they were assuming an unreasonable risk in doing so. He told me,

“They’re all going to have to pay eventually. The lawmakers are on our side because of heavy campaign contributions from our industry. First we have to get Joe and Jane Smith hooked on the great American drug: credit.”

I followed up and asked if that might cause undue hardship for the middle and working class who were strapped for cash in the short term and didn’t understand the long-term consequences of burning a hole through their credit cards. His response to that was,

“Not my problem.”

Predictably, people in the middle and lower income brackets hit a wall when the economy went bust and jobs were lost. Many were confronted with medical calamities in their families, had no health insurance and no means of meeting their financial obligations. In the past such people had the option of declaring Chapter 7 Bankruptcy and getting a “fresh start.” Conservative critics typically excoriated the concept of a fresh start as an unjustified reward for profligate spending. In fact declaring bankruptcy is a lifeline for people in legitimate need.

A "fresh start" used to be the objective of American bankruptcy law. The law passed in 2005 requires people who earn more than the median income in their state to pay off their debts on a five-year repayment plan. In theory, lower income earners may still avail themselves of Chapter 7's debt-erasing provisions, but they’re confronted with all sorts of additional hurdles, including mandatory credit counseling, greater paperwork requirements and rising lawyers' fees. These obstacles make it virtually impossible for lower income people to declare bankruptcy.

Contrary to conservative propaganda most do not declare bankruptcy because of profligate spending. Typically, lower and middle-income workers are forced to declare bankruptcy because of a medical calamity in their family. If a lower income individual with limited or no health insurance can't declare bankruptcy when a child suffers from a medical calamity, they’re in danger of complete financial destitution – even homelessness. Indeed, many of these people are among the over 40 million not currently benefiting from health insurance or their coverage is simply inadequate to meet their needs.

Another important impact of the new bankruptcy law is that an indispensable safety net for small risk taking entrepreneurs is gone. Bankruptcy regulations that apply to large corporations are essentially unchanged. For example, an airline can declare bankruptcy and avoid financial obligations regarding their employees' pension funds. However, the current law does facilitate economic distress on those small businesses that our economy is so dependent on for job creation.

Unlike large corporations, individual owners usually finance small businesses with money from their own bank accounts. Previously an owner of a failing small enterprise had the option of declaring bankruptcy so they could obtain a fresh start and still take care of their family. With that safety net removed it is far more difficult for the little guy to be an innovative risk taker.

In September I interviewed talk radio's Thom Hartmann and he noted to me that Henry Ford declared bankruptcy seven times. So if it was good enough for Henry Ford why not for today’s small businessperson?

Relaxing the bankruptcy laws would have a far greater impact on job creation than tax breaks for the super rich. Indeed if small business were relieved of the burdens of healthcare costs through a single payer system coupled with a relaxation of bankruptcy laws it could be a job stimulus for our economy.

The financial services industry will move hard and fast to seduce the new Democratic majority. It would not surprise me if the financial services industry lobbies the new congress for even more stringent bankruptcy laws while Bush is still in the White House. Every time new bankruptcy legislation has become law in recent years it was to benefit the financial services sector. How sickening if in coming weeks we read press clippings that lobbyists from credit card companies find the Democrats “pragmatic” and “accessible.” It’s time to reverse that trend starting with this new congress.

Replacing the 2005 law with more consumer and small business friendly legislation makes political sense and is good policy. It would put Republicans on the defensive and enable Democrats to further shift the center of political gravity in a populist direction. The corporatist media and K-Street lobbyists are eager to portray the election as having little to do with a repudiation of conservatism. Flexing political muscle on this issue will help transform the national conversation on domestic issues and keep Republicans back on their heels.

In all likelihood President Bush would veto such an initiative. If he does then it helps the party educate small business entrepreneurs and working people why it is in their interest to put a Democrat in the White House in 2008. Perhaps some Republicans could be persuaded to join Democrats out of political expediency.

The key of course will be to maintain unity in the Democratic caucus. That’s where the netroots can make an important contribution. We have to make it clear that we consider the bankruptcy law class warfare from the top and expect Democrats to make a stand about it.

It’s one thing for Delaware Senator Joe Biden to support the legislation because his state is a bastion for the financial services industry. But if he’s serious about competing to become my party’s standard-bearer in 2008 then he has to change his position. Another example is Senator Evan Bayh of Indiana. Senator Bayh it’s wonderful that you’re from a red state and have gubernatorial experience too. However, you’re among the Senators that supported Bush’s bankruptcy law and until you change your tune I’m not going to waste my time with you.

This needs to be a litmus issue for Democratic candidates in 2008. Hillary Clinton is constantly calculating and recalibrating her positions. She’ll embrace flag burning amendments to appear “moderate” and supported Bush’s national security policies in Iraq until recently. Well I’d like to see Senator Clinton put her prestige on the line and help lead a fight to repeal this horrific law. Hell it could be an opportunity for her to establish some populist credentials of her own heading into the Democratic primary season. Let her calculate in a progressive direction for a change and promise that if elected president she’ll sign legislation overturning the 2005 law.

As for Senator Barack Obama let him take an unequivocal stand that isn’t mealy mouthed and state outright the 2005 bankruptcy law is reprehensible. Why not lead the fight to change it Senator Obama? Perhaps that might enable the freshman senator to accomplish something tangible in his term before hanging out in Iowa and New Hampshire.

John Edwards this is right up your alley. Demonstrate that you’re the true champion of the little guy and push your party to do the right thing. You have populist stature already and can distinguish yourself even further from Clinton and Obama by making this one of your issues.

Governor Vilsak you can get some traction as the Washington outsider not infected by K-Street disease. Prod your party from the heartland. Forcefully deliver the message this law is a travesty of governance in Washington, and you pledge to repeal it if elected president. It’s a stand worth taking and perhaps might propel you in an otherwise bloated field of big names and big money.

Let’s face it Governor Vilsak there is no way you’ll ever raise more cash than Clinton, Obama, Edwards or even the hapless John Kerry. So why not be the people’s champion and use this issue to differentiate yourself from the pack? With Feingold out of the picture progressives are hungering for a candidate to rally behind so why not you? Everyone, including Hillary will be rhetorically against the war in 2008 so why not add some old fashioned domestic populism to your pedigree?

I didn’t phone bank after hours and weekends prior to Election Day because it was fun. I did it because I want change. The bankruptcy law of 2005 is a prime example of what Democrats need to change forthwith.
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ADDENDUM: The above topic was frontpaged in My Left Wing (Click Here), Booman Tribune (Click Here) and Swords Crossed (Click Here). The comments both favorable and otherwise are interesting reading. Special thanks to Maryscott O'Connor, Steven D and Brendan for promoting my crosspost on those sites. Also, the fabulous Susan G once again rescued my diary in Daily Kos (Click Here).