[Congressional Record Volume 146, Number 141 (Tuesday, October 31, 2000)]
[Senate]
[Pages S11398-S11401]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               BANKRUPTCY

  Mr. DURBIN. Mr. President, you can expect the Halloween thing to be 
part of most of our speeches on the floor today regardless of the issue 
at stake. It is Halloween, and children of all ages will be dressing up 
in their favorite costume and ringing doorbells yelling: Trick or 
treat.
  Our Halloween tradition that we enjoyed as kids, and even as adults, 
dates back to Celtic practices, when on this day witches and other evil 
spirits were believed to roam the Earth, playing tricks to mark the 
season of diminishing sunlight.
  The 106th Congress is waning. Our legislative days will soon be 
coming to an end, and we will be ending the legislative term with a 
cruel legislative trick: a bankruptcy conference report masquerading as 
a State Department authorization bill. You know Congress is close to 
adjournment when slick procedural maneuvers are used to bring a one-
sided work product to the Senate floor.
  The majority found a shell conference report, they basically held a 
meeting without an official conference committee, struck the contents 
of the original bill, and plugged in the bankruptcy bill that we have 
before us today. Rather than negotiate with Democrats directly or work 
to produce a bipartisan bill that the President might support, they 
went back to their old tactic: Take it or leave it; this is the 
Republican version; this is the version supported by business. Take it 
or leave it.
  When I hear all the claims in the Presidential campaign about 
bipartisanship, I shake my head when I look at the Republican 
leadership in the Senate and the House which continuously stops the 
Democrats from participating. If we are going to have bipartisanship, 
shouldn't we have it on a bill as important as bankruptcy reform?

  Let me say from the outset, I support bankruptcy reform. Two years 
ago, I was on the Judiciary Committee and the subcommittee with 
jurisdiction over this issue. Senator Grassley and I spent countless 
hours with our staffs trying to come up with meaningful and fair 
bankruptcy reform.
  We had a good bill. Ninety-seven Members of the Senate voted for it. 
I thought that was a pretty good endorsement of a bipartisan effort, 
but it has gone downhill consistently ever since.
  That bill was then trapped in a conference committee that was totally 
Republican, no Democrats allowed. They brought back a work product that 
was the byproduct, I guess, of the best wishes of the credit industry. 
It had no balance to it whatsoever. Frankly, it was defeated. Then we 
turned around--I guess it wasn't called; it would have been defeated by 
Presidential veto.
  Then over the next 2 years, others worked on this issue, and I hoped 
we would return to a bipartisan approach. It did not happen. So for all 
of the calls for bipartisanship by the Republican side of the aisle, 
when it comes to conference committees, no Democrats are allowed. 
Republicans said: Take it or leave it. In this case, we should 
definitely leave it.
  The bankruptcy code is a complex piece of law. When I was debating 
this in earlier years, I marveled at the fact that I was considered to 
be one of the spokesmen on the issue of bankruptcy.
  What is my experience in bankruptcy? Thirty years ago I took a

[[Page S11399]]

bankruptcy course in law school, and 20 years ago I was a trustee in a 
bankruptcy in Springfield, IL. That is the sum and substance of my 
experience in bankruptcy, and I turned out to be one of the more 
experienced people at the table on the issue, one I had to relearn the 
complexities of in a short period of time.
  A constant theme has guided me through this debate, and that is: Yes, 
there are people who go to bankruptcy court and file, abusing the 
system, gaming the system, trying to avoid their responsibility to pay 
their just debts. I believe that is the case, and if this law is 
directed at those people, I am for it.
  Secondly, I believe there are abuses on the other side as well. I do 
not need to tell the others who are gathered and those following this 
debate how many credit card solicitations you receive at home. Quite a 
few, I bet. I will go through some statistics in a few minutes about 
the volume of credit card solicitations.
  I have a godson in Springfield, IL, Neil Houlihan. He is now 7 or 8 
years old. He got his first credit card solicitation at the age of 6. 
This is a bright young man, but I do not believe that at the age of 6, 
when you are learning to ride a bicycle, you should have a credit card 
in your back pocket. Obviously, MasterCard did and sent Neil his 
solicitation.
  They have sent solicitations to children, people in prison, and 
family pets. Everyone gets one. Every time you go home at night, you 
sort through all the offers to give you a new credit card. In a way, it 
is flattering; you feel empowered: You get to make that decision. In 
another way, the credit card industry would have us carry as many 
pieces of plastic in our pocket as possible, with little or no concern 
as to whether we can handle the debt.

  What I believe--and I hope others agree with me--is we should not 
ration credit in America nor should we ration information about credit 
in America. We ought to know, as individuals, what the terms of these 
credit card agreements are, what the traps are that you can hardly read 
with a magnifying glass on the back of your statement. We have a right 
to know what we are getting into. If it is a caveat-emptor situation, 
it is not fair. Consumers have a right to know.
  The democratization of credit in America has made this a better place 
to live. I understand the fact that not too many years ago, if a woman 
was a waitress in a restaurant, the likelihood that she could get a 
credit card was next to zero. Today she could qualify for one. That is 
a good development.
  We have to look at the abuse of solicitation of credit cards and what 
it leads to. The credit card industry wants us to close down the 
loopholes in the bankruptcy code, but they do not want us to look at 
the loopholes in their own system. When I explain the details, my 
colleagues will understand.
  They say this is a reflection on the moral decadence of America; that 
so many people are filing for bankruptcy. I assume those who abuse the 
system may be morally decadent. Let someone else be the judge of it. At 
least it raises that issue.
  I asked the credit card industry: Do you have a moral responsibility? 
Are you meeting your moral responsibility? When you flood people who 
are not creditworthy with solicitations for more credit cards, are you 
meeting your responsibility? When you put ATMs at casinos, are you 
meeting your responsibility? When you go to football games and 
basketball games at the college level on up and say, We can give you a 
beautiful sweatshirt that shows the University of Illinois symbol if 
you, as a student, will sign up for a credit card, are you meeting your 
moral responsibility?
  When the dean at Indiana University says the No. 1 reason kids drop 
out of school is credit card debt--they have so much debt accumulated, 
they have to go to work and try to pay some of it off--are you meeting 
your moral responsibility?
  This field of morality can be a little tricky, but this credit card 
industry does not believe they have a special responsibility in this 
debate. I think they are wrong.
  In 1999, there were 3.5 billion credit card solicitations mailed to 
American households. Let me tell you why that is interesting. There are 
78 million creditworthy households in America and 3.5 billion credit 
card solicitations. Do you ever wonder why your mailbox is full of 
these solicitations? They are, frankly, coming at you in every 
direction, and it is not just through the mails; it is in magazines; it 
is on television; it is everywhere you turn. They try to lure you into 
signing up for another credit card with very few questions asked.
  These 3.5 billion credit card solicitations, frankly, do not tell you 
all you need to know about the obligations you are incurring.
  I continue to believe, as I did when this debate got started, when we 
passed a strong disclosure provision, that consumers were entitled to 
know some very basic things.
  This is one of the things I suggested but which the credit card 
industry rejected. It is just this simple. I think they ought to say, 
in every credit card statement: If you make the minimum monthly payment 
required, it will take you X number of months to pay off the balance. 
When you have paid it off, this is how much you will have paid in 
interest and how much you will have paid in principal.
  That is not a tough thing to calculate; it is not a radical 
suggestion; it is disclosure, so that someone who looks at a credit 
card debt--let's say they want to pay the 2 percent monthly minimum on 
$1,295.28--is told, as part of routine disclosure, it will take them 93 
months--that is more than 7 years--to pay off the balance. And when it 
is all over, their payments will have come to $2,418, almost twice the 
original balance.
  The credit card industry said that is an outrageous disclosure that 
they would disclose this to people to whom they send monthly 
statements. At first they said it was not technologically possible. 
That is laughable, in this world of computers, that they could not tell 
you that basic information. They do not want to tell you that because 
they understand, as long as people are paying that minimum monthly 
payment, they are going to be trapped forever in paying more and more 
interest.
  There are times when people cannot pay more than the minimum monthly 
balance. That is a decision--a conscious decision--consumers should 
make. But I think the credit card industry owes it to people across 
America to tell them the terms of what they are getting into. Frankly, 
they have resisted that all along.
  It is my understanding that a lot of the language we have put in here 
about credit card disclosure, and even saw in the Senate bill, has 
basically been eliminated. It is my understanding that it has been 
weakened in many respects.
  The Republican leadership brings this bill to the floor and permits 
banks with less than $250 million in assets--and that, incidentally, is 
over 80 percent of the banks in America--to have the Federal Reserve 
provide its customers with a toll free number to review their credit 
card balances for the next 2 years. So instead of telling you on a 
monthly statement, with all the information they pile in--all the 
circulars, all the advertising--they are going to give you an 800 
number and say: You can call here, and maybe they will answer your 
question as to how much you are ultimately going to have to pay. You 
know that isn't going to happen. The credit card industry knows it is 
not going to happen. That is as far as they want to go.
  Let me tell you about another thing that is amazing. It is called the 
homestead exemption. Did you know, in most States now, if you file for 
bankruptcy, you are allowed to claim as an exemption--in other words, 
protected from the bankruptcy court and your creditors--your homestead, 
your home? But every State has a different standard about how much you 
are allowed to exempt.
  My colleague, Senator Kohl of Wisconsin, basically said we ought to 
get right of this because fat cats go out and buy magnificent homes and 
mansions and ranches and farms and call them their homes, plow 
everything they have into them, and then say to their creditors they 
have nothing to put on the table.

  We had instances where the Commissioner of Baseball many years ago--
one of the former Commissioners of Baseball--managed to protect a 
mansion in

[[Page S11400]]

Florida because he bought it in time before he filed for bankruptcy. We 
had a lot of well-known actors and actresses who turned around and did 
the same thing in southern California.
  The average person does not have that benefit. Many States do not 
allow much more than a modest exemption for the homestead. We said, 
under Senator Kohl's amendment, that we would create a $100,000 
nationwide cap on homestead exemptions. I think it makes sense. But, 
frankly, it did not survive. Now, under this bill that is before us, if 
you have owned property for more than 2 years, then there is virtually 
no limitation. It is up to the States to decide again. I think that is 
a mistake. This is a departure.
  The other area is clinic violence. This gets to a point that is worth 
speaking to. Senator Schumer of New York brought this point forward. If 
someone is engaged in violence at an abortion clinic--and it has 
happened; we have seen it happen--and they are found to be responsible 
in a court of law for their wrongdoing, and they are held responsible 
for damages to be paid, in many cases all they need to do is file for 
bankruptcy, and they are virtually discharged of all responsibility on 
that debt.
  I think that is wrong. By a vote of 80-17 the Senate agreed with me. 
But Senator Schumer's amendment did not survive this conference, and it 
is not going to be considered. As a result, we find a situation where 
those who are guilty of clinic violence, people such as Randal Terry 
and Flip Benham, have usurped our clinic protection laws by feigning 
bankruptcy.
  Did you know, even student loans are not dischargeable under 
bankruptcy under chapter 13? Yet these folks have been engaged in 
violent activity, found guilty by a jury of their peers, and use this 
bankruptcy code as a shield.
  I tried to add some provisions in the Senate bill that gave the 
bankruptcy judges more flexibility in applying a means test for 
moderate-income debtors. It was stricken from the bill.
  Who actually files for bankruptcy? It is interesting to see. You 
might think that it is the high rollers, but it turns out to be some of 
the poorest people in America. The average income of people filing for 
bankruptcy over the last 20 years continues to go down. That income, at 
this point, is below $25,000 a year for the people who are filing for 
bankruptcy.
  Why do people file for bankruptcy? Some of them may have calculated 
how they can come out ahead by doing it. But look at what happens in 
most cases. Older Americans are less likely to end up in bankruptcy 
than younger Americans, but when they do file, 40 percent of them give 
medical debt as the reason for filing. Elizabeth Warren of Harvard 
tells us, overall, 46 percent of the people filing for bankruptcy do so 
because of medical debt.
  We spent a lot of time on the Senate floor talking about hospital 
bills and prescription drug bills. When people become so overwhelmed by 
a catastrophic illness, they end up in bankruptcy court.
  Both men and women are more likely to declare bankruptcy following 
divorce. That is the second instance in people's lives, divorces. They, 
of course, end up with a situation where people have to file because 
they can't make ends meet. The spouse who has the responsibility of 
raising the children may find herself in bankruptcy court.

  The way this bill is written, there is not adequate protection for 
those women. That is why most women's groups, as well as consumer 
groups, oppose this bill as written.
  Of course, unemployed workers who lose their jobs; that is the third 
instance that drives people into bankruptcy court.
  So you find over and over again that the catastrophic events of a 
lifetime force people into bankruptcy court. Most of them do not go 
there because they want to. They are forced into that situation. This 
bill does not help them, does not protect them. Basically, it provides 
more power for the creditors and less power for the debtors who find 
themselves in these awful circumstances.
  An interesting thing has occurred since this debate started 3 or 4 
years ago. There was a lot of complaints about the number of bankruptcy 
filings going up in America in a time of prosperity. That was true. It 
is a strange thing, but people get overconfident and they get too far 
in debt, and they can't get out or they run into one of the three 
catastrophes that I mentioned. But something has happened.
  In the first 37 weeks of this year, 861,846 people filed for 
bankruptcy. That is a lot of people. But basically the number of 
bankruptcy filings is on a decline. According to a study by the 
University of Maryland's Department of Economics, ``Remarkably, there 
have been 138,000 fewer personal bankruptcies in the current year to 
date than during the corresponding period of 1998, a cumulative decline 
of greater than 15 percent in the per capita bankruptcy rate.'' So that 
says to us, the explosive growth of bankruptcies has turned around. I 
cannot tell you exactly why, but that was one of the reasons why we 
even started discussing this bill.
  It was told to us by the White House and the chief of staff of the 
President, John Podesta, the President will veto this bill as written. 
I hope he does. I hope those who support meaningful bankruptcy reform, 
balanced bankruptcy reform, will realize we cannot go through this 
process on a slam dunk, take it or leave it; Republicans will meet and 
decide--and Democrats will be left out--and pass a bill of this 
significance.
  The groups that oppose this include not only the AFL-CIO, 
representing working men and women across America, but also NARAL, the 
National Partnership for Women and Children, the Leadership Conference 
on Civil Rights, the Religious Action Center, the Consumers Union--
virtually every one of them--75 law professors from across the country 
who have tried to take an objective look at this bill, even groups from 
my own home State of Illinois. The Bankruptcy Center, which over the 
past 3 years has filed over 6,000 bankruptcies on behalf of their 
clients, has written me with their concerns about the bankruptcy bill.
  So it comes down to this. We have a lopsided bill, perpetrated as 
part of a political process around here that is becoming too common, 
where they take a bill that has nothing to do with bankruptcy and shove 
the contents into it. And the Republicans dictate what will be in it 
and do not even invite the Democrats to participate in the discussion, 
bring it to the floor and say: Take it or leave it.
  The credit industry that wants this bill refuses to concede the most 
basic concessions to us when it comes to the disclosures they would 
make on credit card solicitations and the monthly statements on the 
bill so that consumers can make a rational choice about how much credit 
they can handle. They basically have told us: This is it; take it or 
leave it.
  I think we should leave it. It is time for us as a Nation to say, 
yes, we can reform bankruptcy but do it in a balanced fashion.
  I salute my colleague, the Senator from Minnesota, for his 
leadership. I hope colleagues on both sides of the aisle will think 
twice and join me in voting against cloture. This bill needs further 
debate, the debate it did not have in conference committee. I hope we 
can come up with a better work product.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, I will take 1 minute because our leader 
is on the floor.
  I thank Senator Durbin. I only heard part of what he said but the 
conclusion especially. I will build on what he said, except I won't do 
it as well.
  Whatever Senators think about the content of this bill--and there is 
much to question--it is a much worse bill than the bill passed by the 
Senate before. Senator Durbin has more credibility on this because he 
worked on the original bankruptcy bill and was responsible for much of 
its content which was much better than what we have seen in recent 
days. This is a mockery of the legislative process. Any minority, any 
Senator, anyone who loves this institution, can't continue to let 
people in the majority take a conference report, gut it, and put in a 
whole different bill, and then bring it here and jam it down 
everybody's throats. I certainly hope Senators who care about this 
legislative process, and who care about the rights of the minority and

[[Page S11401]]

about a public process with some accountability, will at least vote 
against cloture. I think that is almost as important an issue as the 
content, in terms of the future of this body. I am not being 
melodramatic about it. I hope we will have good support in the vote 
against cloture, much less the vote against the final product. I hope 
tomorrow we will be able to stop this.
  I yield the floor.
  The PRESIDING OFFICER. The minority leader.

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