[Congressional Record Volume 148, Number 147 (Thursday, November 14, 2002)]
[House]
[Pages H8742-H8757]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WAIVING POINTS OF ORDER AGAINST CONFERENCE REPORT ON H.R. 333,
BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2002
Mr. SESSIONS. Mr. Speaker, by direction of the Committee on Rules, I
call up House Resolution 606 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 606
Resolved, That upon adoption of this resolution it shall be
in order to consider the conference report to accompany the
bill (H.R. 333) to amend title 11, United States Code, and
for other purposes. All points of order against the
conference report and against its consideration are waived.
The SPEAKER pro tempore. The gentleman from Texas (Mr. Sessions) is
recognized for 1 hour.
Mr. SESSIONS. Mr. Speaker, for the purpose of debate only, I yield
the customary 30 minutes to the gentleman from Texas (Mr. Frost),
pending which I yield myself such time as I may consume. During
consideration of this resolution, all time yielded is for the purpose
of debate only.
Mr. Speaker, the resolution provides the standard rule under which we
consider conference reports and waives all points of order against the
conference report and its consideration.
Mr. Speaker, I am exceedingly pleased that today we will finally
consider the conference report for much-needed bankruptcy reform
legislation. I am proud of the tireless efforts of many of the staff
members and the Members who have put countless hours towards the
passage of this important legislation. Their efforts allow each of us
to ensure that our bankruptcy laws operate fairly, efficiently, and
free of abuse. We must end the days when debtors who are able to repay
some portion of their debts are allowed to game the system. This bill
is crafted to ensure the debtor's rights to a fresh start while
protecting the system from flagrant abuses by those who are able to pay
their bills. The result is a carefully crafted package that balances
and protects Americans from all walks of life and provides access to
bankruptcy for all Americans who have a legitimate need.
I urge my colleagues to support this rule and the underlying
legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. FROST. Mr. Speaker, I yield myself such time as I may consume.
(Mr. FROST asked and was given permission to revise and extend his
remarks.)
Mr. FROST. Mr. Speaker, I rise in support of this conference report
and urge my colleagues to support this rule so that the House may
proceed to the consideration of the conference agreement. The House
has, in the past two Congresses, consistently supported bankruptcy
reform. In the 107th Congress, the House passed its version of the bill
by a vote of 306 to 108. This agreement, which is the product of months
of negotiations, makes sensible changes in the law that will save
American consumers millions of dollars a year. This conference
agreement adheres to the principle that if an individual has the
capacity to repay a substantial portion of their debt, then that debtor
should have an obligation to repay. This conference agreement will rein
in abuse of the system and ensure that those debtors who cannot pay are
given the fresh start they need.
Mr. Speaker, I commend the conferees for their hard work on this
issue and for bringing the House a conference report that is worthy of
support.
I would point out, Mr. Speaker, that there are Members on our side of
the aisle who strongly object to this conference report, and we will be
hearing from them in the course of this debate.
Mr. Speaker, I reserve the balance of my time.
Mr. SESSIONS. Mr. Speaker, I yield 2 minutes to the gentleman from
New Jersey (Mr. Smith), the chairman of the Committee on Veterans'
Affairs.
Mr. SMITH of New Jersey. I thank my friend for yielding me this time.
Mr. Speaker, I rise in strong opposition to this rule. Some of my
colleagues were not here back in 1993 and 1994 when we debated the
Freedom of Access to Clinic Entrances Act, which penalized pro-lifers
in a way that was totally unfair and discriminatory, mandating ruinous
lawsuits, criminal penalties and the like, for doing the same thing
that some other nonviolent civil disobedient person might do. If you
stood in front of an abortion clinic, you could have the book literally
thrown at you, and do the same thing in front of NIH or somewhere else
and have a whole different set of penalties. Today we are dealing with
the same thing but an extension of that very, very wrongheaded and
misguided piece of legislation.
In 1994, Chairman Sensenbrenner said this about the same language we
are debating today:
``Political protest has been at the forefront of social change. From
the Boston Tea Party to the abolitionist movement, from the antiwar
protests to the activism of the civil rights movement, civil
disobedience has been an intimate part of our history. This is perhaps
the first time in our Nation's history''--this is the second, today--
``that those in the power have so openly sought to use the authority of
government to broadly suppress the legitimate actions of a movement
with which they do not agree. The legislation, FACE,'' which this makes
it worse, you cannot discharge a civil complaint that has been brought
against you, the penalty, ``sweeps with broad and heavy hand to target
peaceful, nonviolent, constitutionally protected activities on the same
terms as violent or forceful acts.''
Chairman Sensenbrenner had it right then. He went on to say that this
was McCarthyism. What we are dealing with today, with all due respect,
is McCarthyism. Much has been made about the Starr memo. Let me say
this: The difference is if you are from PETA or some other organization
where sit-ins and civil, nonviolent disobedience, where you get
arrested, is part of the intent of what you want to do to bring a
focus, and Martin Luther King certainly had intent when he protested
and got arrested more than a dozen times or so. The fundamental issue
here is that pro-lifers are treated differently. Under the FACE bill,
ruinous lawsuits, extreme penalties are leveled against nonviolent
protestors.
I urge a no on the rule.
Mr. FROST. Mr. Speaker, I yield 4 minutes to the gentleman from
Virginia (Mr. Boucher).
(Mr. BOUCHER asked and was given permission to revise and extend his
remarks.)
Mr. BOUCHER. Mr. Speaker, I thank the gentleman from Texas for
yielding me this time. I am pleased to rise in support of the rule for
consideration in the House of the conference report to accompany the
bankruptcy reform legislation. I urge approval both of the rule and of
the conference report.
The reform of the Nation's bankruptcy laws, which our actions today
will accomplish, is well justified. This reform is strongly in the
interest of consumers. It will significantly reduce the annual hidden
tax of approximately $400 that the typical consumer pays because others
are misusing the bankruptcy laws. That amount represents the increased
cost of credit and the increased price of consumer goods and services
occasioned by bankruptcy law misuse. This reform will lower that hidden
tax.
The reform also helps consumers by requiring clearer disclosures of
the cost of credit on credit card statements. And the reform will be a
major benefit to single parents who receive alimony or child support.
That person today is fifth in priority for the receipt of payment under
the bankruptcy laws. The reform before us today elevates the spouse-
support recipient to number one in priority.
This reform proceeds from a basic premise that people who can afford
to repay a substantial part of the debt that they owe should do so. The
bill requires that repayment while allowing the discharge in bankruptcy
of the debts that cannot be repaid and in so doing responds to the
broad misuse of chapter 7's complete liquidation provisions that we
have observed in recent years.
The reform measure sets a threshold for the use of chapter 7. Debtors
who
[[Page H8743]]
can make little or no repayment can use its provisions without
limitation and can discharge all of their debts. Debtors whose annual
income is below the national mean of about $50,000 per year are also
untouched by the provisions of this reform. They can make full use of
chapter 7 and discharge all of their debts even if they could afford to
make a substantial debt repayment.
And so, Mr. Speaker, the financially unfortunate and middle-income
consumers are not affected at all by this reform. They can continue to
use the bankruptcy laws as they can under current law. But upper-income
consumers who can make substantial repayments will be expected to enter
into court-supervised repayment plans under chapter 13. This modest
requirement of personal financial responsibility is appropriate, and I
am pleased today to urge approval of this well-justified reform which
is contained within the conference agreement.
Mr. Speaker, I am pleased today to urge approval of the rule that
brings that conference agreement to the floor as well as the conference
agreement itself.
Mr. SESSIONS. Mr. Speaker, I yield 2 minutes to the gentleman from
Pennsylvania (Mr. Pitts).
(Mr. PITTS asked and was given permission to revise and extend his
remarks.)
Mr. PITTS. Mr. Speaker, I want to rise in opposition to this rule and
make it clear that I support bankruptcy reform laws very much. But not
this version, not with these words that have been inserted by the
conference. They did take the reference to the FACE Act, standing for
Free Access to Clinic Entrances, meaning an abortion clinic, that was
passed in 1994; and we have the FACE language here in white and the
identical words are in the bankruptcy reform bill. They did change
``reproductive health services'' to ``lawful goods or services.'' That
is the one change. The key words are ``interferes with'' or ``physical
obstruction.'' Under FACE, peaceful pro-life protesters are being
arrested and sentenced to jail for just praying on a sidewalk outside
an abortion clinic, or handing a leaflet to a woman as an alternative.
One man was even successfully sued for leaving his business card on the
clinic's door.
Mr. Speaker, under FACE, people are being fined hundreds of thousands
of dollars. What we are doing in this bill is taking the identical
language and putting it in the bankruptcy bill so now they cannot even
file for bankruptcy, unfair bankruptcy. So we are condemning peaceful,
innocent people who have a conscience to protest just to try to save
the life of an unborn to a life of financial ruin.
I have a couple of letters, one from Harvard law professor Mary Ann
Glendon, a good analysis of the bill, but let me just read the last
paragraph:
``A large and nondischargeable debt, beyond one's capacity to pay,
especially in the hands of a hostile and motivated creditor, is a
financial death sentence. That is what even peaceful pro-life
protesters have to fear if the proposed language is added to the
existing aggressive judicial interpretation of FACE and similar laws.''
Mr. Speaker, I will submit the other letter from the Catholic Bishops
for the Record.
Bankruptcy Conference Report H.R. 333:
SEC. 330. Nondischargibility of debts incurred through
violations of law relating to the provision of lawful goods
and services
(a) Debts incurred through violations of law relating to
the provision of lawful goods and services.--Section 523(a)
of title 11, United States Code, as amended by section 224,
is amended--
(1) in paragraph (18) by striking ``or'' at the end;
(2) in paragraph (19) by striking the period at the end and
inserting ``; or''; and
(3) by adding at the end the following:
``(20) that results from any judgment, order, consent
order, or decree entered in any Federal or State court, or
contained in any settlement agreement entered into by the
debtor (including any court-ordered damages, fine, penalty,
or attorney fee or cost owned by the debtor), that arises
from--
``(A) the violation by the debtor of any Federal or State
statutory law, including but not limited to violations of
title 18, that results from intentional actions of the debtor
that--
``(i) by force or threat of force or by physical
obstruction, intentionally injure, intimidate, or interfere
with or attempt to injure, intimidate or interfere with any
person because that person is or has been, or in order to
intimidate such person or any other person or any class of
persons from, obtaining or providing lawful goods or
services;
``(ii) by force or threat of force or by physical
obstruction, intentionally injure, intimidate, or interfere
with or attempt to injure, intimidate or interfere with any
person lawfully exercising or seeking to exercise the First
Amendment right of religious freedom at a place of religious
worship; or
``(iii) intentionally damage or destroy the property of a
facility, or attempt to do so, because such facility provides
lawful goods or services, or intentionally damage or destroy
the property of a place of religious worship; or
``(B) a violation of a court order or injunction that
protects access to a facility that or a person who provides
lawful goods or services or the provision of lawful goods or
services if--
``(i) such violation is intentional or knowing; or
``(ii) such violation occurs after a court has found that
the debtor previously violated--
``(I) such court order or such injunction; or
``(II) any other court order or injunction that protects
access to the same facility or the same person; except that
nothing in this paragraph shall be construed to affect any
expressive conduct (including peaceful picketing, peaceful
prayer, or other peaceful demonstration) protected from legal
prohibition by the first amendment to the Constitution of the
United States.''.
(b) Restitution.--Section 523(a)(13) of title 11, United
States Code, is amended by inserting ``or under the criminal
law of a State'' after ``title 18''.
____
FACE
(Freedom of access to [abortion] clinic entrances)
Signed by President Clinton in 1994--Introduced in the House by Rep.
Chuck Schumer (D-NY)
Roll Call: http://clerkweb.house.gov/cgibin/vote.exe?year-
1994&rollnumber-70
18 USC Sec. 248
SEC. 248. FREEDOM OF ACCESS TO CLINIC ENTRANCES.
(a) Prohibited Activities.--Whoever--
(1) by force or threat of force or by physical obstruction,
intentionally injures, intimidates or interferes with or
attempts to injure, intimidate or interfere with any person
because that person is or has been, or in order to intimidate
such person or any other person or any class of persons from,
obtaining or providing reproductive health services;
(2) by force or threat of force or by physical obstruction,
intentionally injures, intimidates or interferes with or
attempts to injure, intimidate or interfere with any person
lawfully exercising or seeking to exercise the First
Amendment right of religious freedom at a place of religious
worship; or
(3) intentionally damages or destroys the property of a
facility, or attempts to do so, because such facility
provides reproductive health services, or intentionally
damages or destroys the property of a place of religious
worship,
(d) Nothing in this section shall be construed--(1) to
prohibit any expressive conduct (including peaceful picketing
or other peaceful demonstration) protected from legal
prohibition by the First Amendment to the Constitution;
____
Harvard Law School,
Cambridge, MA, November 12, 2002.
Hon. Christopher Smith,
House of Representatives,
Washington, DC.
Dear Congressman Smith: I am taking the liberty of writing
to you today because I am deeply concerned about the
application of H.R. 333 to peaceful pro-life protestors. I
hope the following opinion letter will be helpful to you.
The proposed legislation would create a new 11 U.S.C.
Sec. 523(a)(20), denying discharge for and judgments under
the Freedom of Access of Clinic Entrances Act, 18 U.S.C.
Sec. 248 (2000), or under similar state laws, or under
injunctions restricting protest at abortion clinics.
The impact of the provision on peaceful pro-life protestors
would be grave. Existing law substantially restricts protest
at abortion clinics, and in their zeal to eliminate violent
protests and obstruction protests, courts and legislators
have forbidden much protest that is peaceful and
nonobstructive. Proposed Sec. 523(a)(20) would add an
additional sanction to all this existing law: money judgments
for abortions protest would follow protestors to the ends of
their lives. No matter their financial circumstances, no
matter the size of the judgment or the nature of the protest,
these judgments could never be discharged in bankruptcy.
1. The Freedom of Access to Clinic Entrances Act (FACE)
Proposed Sec. 523(a)(20)(A) precisely tracks the key
substantive language of FACE. FACE prohibits conduct that:
``by force or threat of force or by physical obstruction,
intentionally injuries, intimidates or interferes with''
access to ``reproductive health services,'' or attempts to do
so. 18 U.S.C. Sec. 248(a)(1) (2000).
Proposed Sec. 523(a)(20) denies discharge for any judgment
arising from actions of the debtor that: ``by force or threat
of force or
[[Page H8744]]
by physical obstruction, intentionally injure, intimidate, or
interfere with'' access to lawful goods or services. The key
language in the two block quotes is obviously identical save
for the difference between singular and plural verbs
(``whoever'' is the subject in FACE; the debtor's ``actions''
is the subject in proposed Sec. 523(a)(2)).
Because the proposed language is substantively identical
to FACE, it will be read in light of existing decisions under
FACE. Existing interpretations of FACE will almost certainly
be read into Sec. 523(a)(20). Worse, abortion clinics and
their supports will likely argue that by re-enacting the same
statutory language, Congress has approved existing decisions
and thus confirmed their status as valid and appropriate
interpretations of FACE itself. This is a critical point,
because existing interpretations of FACE in the lower courts,
extraordinarily favorable to the abortion clinics and their
supporters, have not yet been accepted or rejected by the
Supreme Court of the United States. Congressional passage of
proposed Sec. 523(a)(20) could figure prominently in eventual
Supreme Court arguments on the interpretation of FACE,
lending plausible support to the worst interpretations of the
statute.
I will not consider in this opinion letter the
interpretations of ``force or threat of force,''
``intentionally injure,'' or ``intimidate.'' Some
interpretations of those provisions have been surprisingly
expansive, but those forms of protest are not the issue for
most protestors. The real work of FACE, and of proposed
Sec. 523(a)(20), is in the provisions that target anyone who
``by physical obstruction * * * interferes with * * * or
attempt to * * * interfere with'' access to a clinic. Each of
these terms has been construed or defined to mean more than
first appears. No actual interference, and no actual physical
obstruction is required for a violation. Courts have found
violations in peaceful protest that did not actually prevent
access to clinics.
``Physical obstruction'' is defined in 18 U.S.C.
Sec. 248(e)(4) to mean making ingress or egress ``impassable
* * * or unreasonably difficult or hazardous.'' What is
``unreasonably difficult'' has, in the lower federal courts,
sometimes turned out to be remote from physical obstruction.
Thus in, United States v. Mahoney, 247 F.3d 270 (D.C. Cir.
2001), the court found physical obstruction and interference
with access from a single protestor kneeling in prayer
outside a locked door to an abortion clinic. Id. at 283-84.
The door was a ``rarely used'' emergency exit. The court said
that someone might have used the door, and that the law does
not distinguish frequently and infrequently used doors. More
remarkable still, the court held that a single person keeling
in prayer rendered use of that door ``unreasonably
difficult'' and forced patients to use a difference entrance.
Id. at 284.
Mahoney also held that six other defendants physically
obstructed and interfered with access to another door. The
court of appeals' entire discussion of this holding is that
five protestors ``knelt or sat within five feet of the front
door,'' that the sixth defendant ``was pacing just behind
them,'' and that they ``offered passive resistance and had
to be carried away.'' Id. at 283. The court does not even
say whether they were arrayed across the sidewalk or along
the sidewalk, whether they left a passage open, or any
other fact that might go to a plain meaning understanding
of ``physical obstruction'' or to preserving a reasonable
right to protest. It was enough for a violation that they
were near the door.
Both FACE and proposed Sec. 523(a)(20) are limited to
``intentional'' violations, but mahoney shows that protection
to be illusory. The court found specific intent to interfere
with access to the clinic, even in the case of the lone
protestor praying before the locked door. It relied on the
fact that the protestor prayed that women approaching the
clinic would change their minds about getting an abortion;
the court quoted his prayer as evidence of criminal intent.
247 F.3d at 283-84. To similar effect is United States v.
Gregg, 32 F. Supp. 2d 151, 157 (D.N.J. 1998), aff'd 226 F.3d
253 (3d Cir. 2000), cert. denied, 523 U.S. 971 (2001). Gregg
had much more evidence of actual obstruction than Mahoney.
Even so, the Gregg court relied on defendants' ``anti-
abortion statements, including imploring women not to go into
the clinic or not to kill their babies,'' and on the fact
that defendants ``carried anti-abortion signs,'' as evidence
of forbidden intent. The government in these cases has
offered evidence of opposition to abortion as evidence of
specific intent to obstruct access, and the courts have
relied on this evidence for that purpose. Clinics and their
supporters would of course argue that Congress has codified
these holdings if it enacts proposed Sec. 523(a)(20).
Courts have emphasized that FACE plaintiffs need not prove
actual obstruction. ``It is not necessary to show that a
clinic was shut down, that people could not get into a clinic
at all for a period of time, or that anyone was actually
denied medical services.'' People v. Kraeger, 160 F.Supp. 2d
360, 373 (N.D.N.Y. 2001). Plaintiffs need not ``show that any
particular person was interfered with by the defendants'
obstruction.'' United States v. Wilson, 2 F. Supp. 2d 1170,
1171 n.1 (E.D. Wis.), aff'd as United States v. Balint, 201
F.3d 928 (7th Cir. 2000).
To sum up, proposed Sec. 523(a)(20) would re-enact
statutory language that has been interpreted not to require
actual obstruction, has been interpreted to prohibit a single
protestor kneeling in prayer near an unused exit, and has
been interpreted to treat anti-abortion statements as
evidence of criminal intent. These interpretations would
almost certainly be read into Sec. 523(a)(20), and there
would be a serious argument that Congress had confirmed these
interpretations in FACE itself.
2. injunctions
Proposed Sec. 523(a)(20)(B) makes nondischargeable any debt
arising from violation of an ``injunction that protects
access to'' a facility that provides lawful goods or
services. Nothing in proposed Sec. 523(a)(20)(B) even
purports to confine this subsection to violent or obstructive
protest.
Under FACE and under other sources of law, courts have
issued injunctions establishing buffer zones and bubble
zones, forbidding protestors from coming within stated
distances of the property line of abortion clinics or within
stated distances of persons approaching abortion clinics.
In Madsen v. Women's Health Center, Inc., 512 U.S. 753
(1994), the Supreme Court upheld the constitutionality of
an injunction forbidding protestors to step onto clinic
property, or onto public property within 36 feet of the
clinic's property line. The effect was to confine
protestors to the other side of the street. The Court also
affirmed an injunction against making any noise audible
within the clinic. In Schenck v. Pro-Choice Network, 519
U.S. 357 (1997), the Court upheld an injunction against
any defendant ``demonstrating within fifteen feet'' of any
doorway or driveway at any abortion clinic in the Western
District of New York. The injunction in that case also
prohibited any defendant from ``trespassing'' on any
clinic's parking lot. (The injunction is set out id. at
366 n.2.)
Since Madsen, the lower courts have become more aggressive
about issuing buffer zone injunctions without first
attempting to control alleged obstruction with less intrusive
means. Examples include the buffer zone injunction issued on
remand after the limited violations in United States v.
Mahoney, under the case name United States v. Alaw, 180 F.
Supp. 2d 197 (D.D.C. 2002), and the preliminary injunction
confining a single protestor to the other side of the street
in United States v. McMillan, 946 F. Supp. 1254 (S.D. Miss.
1995).
Many forms of protest inside such buffer zones would not
obstruct or interfere with anything. A single picketer with a
pro-life sign, held in contempt of court for standing quietly
inside a buffer zone, would be covered by proposed
Sec. 523(a)(20)(B), and any fines, compensation, or
attorneys' fees awarded would be nondischargeable. The
protection for peaceful protest in proposed
Sec. 523(a)(20)(B) is supposed to come from the clause
excluding protest protected by the First Amendment. But given
Madsen and Schenck, this protection means little; much
protest that is peaceful and nonobstructive is not protected
by current interpretations of the First Amendment.
3. State Laws
Proposed Sec. 523(a)(20)(A) also denies discharge for
judgments arising from violation of state laws protecting
access to clinics if the violation includes actions that by
``force or threat of force or by physical obstruction,
intentionally injure, intimidate, or interfere with'' clinic
access, or attempt to do so. Certainly this includes statutes
like the New York Clinic Access and Anti-Stalking Act, which
substantially tracks FACE. (This law is codified as N.Y.
Penal Law Sec. Sec. 240.70 and 240.71 (McKinney Supp. 2002),
and N.Y. Civil Rights Law Sec. 79-m (McKinney Supp. 2002)).
It will be a matter of interpretation and litigation
whether Sec. 523(a)(20)(A) denies discharge for other state
laws imposing more expansive restrictions on pro-life
protest. For example, in Hill v. Colorado, 530 U.S. 703
(2000), the Supreme Court upheld Colo. Rev. Stat. Sec. 18-9-
122(3) (West 1999), which makes it illegal to approach within
eight feet of another person without that person's consent,
for any form of ``protest, education, or counseling'' within
one hundred feet of the entrance to a health care facility.
The Court relied in part on the state's interest in
``unimpeded access to health care facilities.'' 530 U.S. at
715.
Now consider a pro-life protestor who approaches a person
outside an abortion clinic and offers a leaflet. Plainly this
protestor would be violating the statutory eight-foot
bubble zone. The statute currently authorizes compensatory
damages for this violation, Colo. Rev. Stat. Sec. 18-9-
122(6) (West 1999) and Colo. Rev. Stat. Sec. 13-21-106.7
(West 1997), and it could easily be amended to add
liquidated damages or civil penalties on the model of
FACE. In discharge litigation under proposed
Sec. 523(a)(20), abortion clinics and their supporters
would argue that the statute was a reasonable prophylactic
means to prevent physical obstruction that interferes with
clinic access, and that any violation of the statute
amounts to such physical obstruction and interference.
Prospective patients would prefer to enter the clinic
without being offered a leaflet, and they may think the
proffer of the leaflet made their entrance unreasonably
difficult. If any of these arguments were accepted,
judgments for violating state bubble-zone statutes would
be nondischargeable under proposed Sec. 523(a)(20).
I do not think that would be a correct interpretation of
proposed Sec. 523(a)(20). But after examining judicial
interpretations of FACE, I think there is a substantial risk
that some courts would reach this interpretation. If
[[Page H8745]]
judgments for violating buffer-zone and bubble-zone
injunctions are nondischargeable, it would likely seem a
small step to hold that judgments for violating bubble-zone
statutes are also nondischargeable.
4. The Magnitude and Nature of the Judgments at Issue
Proposed Sec. 523(a)(20) is not confined to compensatory
damages. The statutes at issue authorize punitive damages,
liquidated statutory damages, civil penalties, attorneys'
fees, expert witness fees, and criminal fines. Their purpose
is to deter and punish, not just--or even principally--to
compensate for any harm done. In fact, awards of actual
compensatory damages are quite rare. The plaintiffs'
preference for liquidated damages and penalties is most
important in those cases in which there is no obstruction in
the ordinary meaning of the word, or only brief and marginal
obstruction. In such cases, there is little or no actual
damage, but there still be can substantial monetary
judgments.
FACE authorizes $5,000 per violation in statutory damages,
at the election of plaintiffs, either private or
governmental. 18 U.S.C. Sec. 248(c)(1)(B) (2000). In actions
by the United States or by any State, it authorizes a civil
penalty of $10,000 per protestor for the first non-violent
physical obstruction, and $15,000 per protestor for each
subsequent non-violent physical obstruction. 18 U.S.C.
Sec. Sec. 248(c)(2)(B) and 248(c)(3)(B) (2000).
The lower federal courts have held that the statutory
damages are per violation, not per protestor. So if ten
people combine to block a clinic entrance, a single judgment
of $5,000 in statutory damages (plus costs and attorneys'
fees) may be entered jointly and severely against them.
United State v. Gregg, 226 F.3d 253, 257-60 (3d Cir. 2000),
cert. denied, 523 U.S. 971 (2001).
But this ``per violation'' protection does not prevent
multiple awards for multiple violations, and each alleged act
of interference may be parsed as a separate violation.
Moreover, civil penalties may be awarded against each
protestor, and civil penalties and statutory damages may be
awarded in the same case for the same violation. Thus a
federal court has entered $80,200 in judgments against
four members of a single family, for ten separate
violations, none of them violent and none of them creating
anything like an effective ``blockade'' of the clinic.
People v. Kraeger, 160 F. Supp. 2d 360, 377-80 (N.D.N.Y.
2001). And of course there is no federal limit on the
damage and penalty provisions that states might enact for
judgments that would be nondischargeable under
Sec. 523(a)(20).
5. The Effect of Withholding Discharge
I am not an expert on bankruptcy law or debtor-creditor
law, and I have not done extensive research on the options
available to the protestor with a nondischargeable judgment
beyond his capacity to pay. But the basics are clear enough
to anyone with credit cards and a mortgage. If you are unable
to pay, the creditors first threatens your credit rating,
then your possessions; eventually, if there is enough at
stake, the creditor sends the sheriff to seize your
possessions. If you are unable to pay and unable to discharge
the debt in bankruptcy, the threats and seizures would never
end.
For the rest of his life, the protestor subject to a
nondischargeable judgment would find it difficult or
impossible to get credit. He could not get a mortgage; he
could not get a loan for a new car. The creditor might be an
abortion clinic motivated to make examples of pro-life
protestors; such a creditor could make vigorous and
continuing efforts to collect for as long as the protestor
lived. In most states, the protestor's home could be seized,
his wages could be garnished, his financial accounts could be
emptied. In some states, even his furniture could be seized.
All or part of everything the protestor ever earned or
acquired for the rest of his life could be seized by the
abortion clinic creditor, until and unless the judgment was
paid in full, with interest.
A large and nondischargeable debt, beyond one's capacity to
pay, especially in the hands of a hostile and motivated
creditor, is a financial death sentence. That is what even
peaceful pro-life protestors have to fear if proposed
Sec. 523(a)(20) is added to the existing aggressive judicial
interpretation of FACE and similar laws. I believe that any
more optimistic interpretation of the bill is wishful
thinking.
Very truly yours,
Mary Ann Glendon,
Harvard Law Professor.
____
Secretariat for Pro-Life Activities,
Washington DC, November 13, 2002.
Dear Member of Congress:
Disagreements have arisen in Congress over the conference
report on the Bankruptcy Abuse Prevention and Consumer
Protection Act, particularly over Section 330 on the
dischargeability of debts arising from sit-ins at abortion
clinics. A legal analysis of this provision by our Office of
General Counsel is enclosed. Based on this analysis, we have
a serious concern about the form in which the bankruptcy bill
is being presented for final passage.
The bishops' conference has always strongly condemned any
resort to violence in the pro-life struggle. We have never
endorsed, or taken a position on, the practice of conducting
sit-ins or other forms of nonviolent civil disobedience at
abortion clinics. However, we have strongly opposed the
Freedom of Access to Clinic Entrances Act (FACE) as a
discriminatory and ideologically motivated attack on the
rights of peaceful pro-life demonstrators. The current
language on protesters in the bankruptcy bill closely
parallels the language of FACE, and will be used to impose
another layer of penalties upon protesters whose only offense
was to place their bodies in the path of those who take
innocent children's lives.
The discriminatory nature of this provision seems clear. It
could be used to take away the savings, homes and other
property of low- or middle-income peaceful protesters to pay
fines and the attorneys' fees of their opponents--a form of
punishment now reserved chiefly for those who are guilty of
inflicting willful and malicious injury upon others. This
penalty would apply even if the protesters caused no harm to
person or property but only ``interfered'' with abortions.
We hope the House will reject the Rule on the Conference
Report so this unfair and discriminatory provision can be
removed.
Sincerely,
Gail Quinn,
Executive Director.
____
Office of the General Counsel,
Washington, DC, September 12, 2002.
MEMORANDUM
We have been asked for an analysis of the Schumer amendment
to the Bankruptcy Abuse Prevention and Consumer Protection
Act, H.R. 333.
Summary
Under existing law, a pro-life demonstrator seeking
bankruptcy protection may not discharge a debt for a judgment
arising from injuries he or she intentionally causes. The
Schumer amendment would expand the law by preventing a
demonstrator from discharging a debt (a) based on lesser
degrees of cupability, i.e., when the debtor did not intend
or cause injury to person or property, and (b) when the
demonstrator, regardless of his or her state of mind, commits
a second violation of a court order protecting a clinic, even
if the violation was not intended to, and did not, interfere
with clinical access.
An exception in the amendment for expressive conduct
protected from legal prohibition by the First Amendment does
not change this analysis. Obviously, with or without the
exception, Congress lacks the power to prohibit by the First
Amendment does not change this analysis. Obviously, with or
without the exception, Congress lacks the power to prohibit
conduct protected from prohibition by the First Amendment.
The amendment is not limited to violent or even crimical
conduct. For reasons discussed below, it seems likely that
the amendment will have a disproportinate impact on pro-life
demonstrators.
Analysis
Among the debts that may not be discharged in bankruptcy is
any debt ``for willful and malicious injury by the debtor to
another entity or to the property of another entity.'' 11
U.S.C.Sec. 523(a)(6). The word ``willful'' in section
523(a)(6) ``modifies the word `injury,' indicating that
nondischargeability takes a deliberate or intentional injury,
not merely a deliberate or intentional act that leads to
injury.'' Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998)
(original emphasis). ``[D]ebts arising from recklessly or
negligently inflicted injuries do not fall within the compass
of Sec. 523(a)(6).'' Id. at 64. Debts arising from actions
that cause no injury at all are likewise outside the scope of
section 523(a)(6).
Section 523(a)(6) bars the discharge of debts resulting
from judgments against pro-life activists arising from
deliberate or intentional injuries that they cause. In re
Treshman, 258 B.R. 613 (Bankr. D. Md. 2001) (debt for
intentional injury resulting from violation of Freedom of
Access to Clinic Entrances Act was not dischargeable in
bankruptcy); In re Bray, 256 B.R. 708 (Bankr. D. Md. 2000)
(debt for intentional injury resulting from violation of FACE
was not dischargeable in bankruptcy); In re Behn, 242 B.R.
229 (Bankr. W.D. N.Y. 1999) (debt for intentinal injury
resulting from pro-life demonstrator's violation of temporary
restraining order was not dischargeable in bankruptcy). There
is some authority that an injury is ipso facto intentional
when it results from violation of a court order directed
specifically at the particular debtor, Behn, 242 B.R. at 238,
but the same court left ``to another day the question of the
applicability of Sec. 523(a)(6) in other fact patterns, such
as if there had been no court order directed specifically at
the debtor, and instead the debt arose out of a judgement for
trespass or menacing.'' Id. at 239 n. 6. Criminal trepass
statutes generally do not require injury in the sense of
actual damage to property or an intent to cause such damage;
unauthorized entry or remaining unlawfully on property is
usually sufficient. See 75 Am.Jur.2d Trespass Sec. 164.
The Schumer amendment can be divided into three parts. It
prevents the discharge in bankrupty of any debt from a
judgment, order, consence order, decree, or settlement
agreement arising from--
(1) The debtors violation of any Federal or State resulting
from intentional actions of the debtor that by force, threat
of force, or physical obstruction, does any of the
following--
Intentionally injures any person;
Intentionally intimidates any person;
Intentionally interferes with any person;
Attempts to injure, intimidate, or interfere with any
person for any of the following reasons--
[[Page H8746]]
Because that person is or has been obtaining or providing
lawful goods or services;
To intimidate that person from obtaining or providing
lawful goods or services; or
To intimidate any other person or class of persons from
obtaining or providing lawful goods or services.
(2) the debtor's violation of any Federal or State statute
resulting from intentional actions of the debtor that--
Intentionally damage or destroy the property of a facility
because it provides lawful goods or services, or
Attempts to damage or destroy the property of a facility
because it provides lawful goods or services.
(3) a violation of a court order protecting access to a
facility or person that provides lawful goods or services, or
that protects the provision of such goods or services, if--
The violation is intentional or knowing, or
The violation occurs after a court has found that the
debtor previously violated such a court order, or any other
court order protecting access to the facility or person.
The Schumer amendment does not require an intentional
injury. Parts 1 and 2, dealing with violation of federal or
state law, require only an intentional act. The phrase
``intentionally injure, intimidate, or interfere with'' does
not require intentional injury because the word ``or'' is
used. Part 3 requires only an intentional or knowing
violation of a court order, or a second violation of a court
order, intended or not. The amendment would therefore expand
existing law by stripping pro-life demonstrators of
bankruptcy protection for injuries they did not intend, or
only attempted but did not cause. Indeed, the amendment does
not even require any injury in the sense of actual damage to
person or property. It would remove bankruptcy protection in
cases where there is neither damage to person or property nor
any intent or attempt to cause such damage.
The amendment is not limited to violent crime. Physical
obstruction or violation of a court order is sufficient to
trigger the amendment. No crime is necessary, only violation
of some federal or state statute (not necessarily a criminal
statute) or court order.
It seems likely that the amendment will have a
disproportionate impact on pro-life demonstrators and be
invoked most frequently against them. Though broader in its
current form, the amendment is based on FACE and
substantially tracks it. For the most part, other federal
crimes are not implicated. The amendment uses the phrase
``physical obstruction,'' for example, which appears nowhere
in the federal criminal code except in FACE. Words like
``intimidate'' appear elsewhere in the code, but usually not
in reference to the receipt or provision of goods or
services. Most federal crimes do not carry a civil remedy;
FACE does. Thus, the Schumer amendment is carefully designed
to impact demonstrators. There may be other instances in
which the amendment would be theoretically applicable (e.g.,
environmental protestors who disrupt logging operations), but
abortion seems the most common instance in which the targets
of protest regularly allege interference with their business
and often seek large judgments against their adversaries.
The amendment seems unfair not only because it has the
practical effect of singling out demonstrators, but because
those demonstrators, like others, are presently subject to
the nondischargeability of debts for intentional injuries.
Present exceptions to dischargeability for particular crimes
generally involve intentional financial wrongdoing or conduct
in which the debtor created a grave and unjustifiable risk to
human life. Had Congress intended to remove bankruptcy
protection for debt from some broader category of injury or
conduct, it is unclear why that penalty should assume a form,
as this amendment does, that in practical terms will be used
only or primarily to deprive demonstrators, not others, of
bankruptcy protection--unless, of course, the intent were to
punish or chill speech, which is constitutionally
impermissible.
To say that a demonstrator can avoid the problem by not
violating an order or statute misses the point. The point is
not to absolve unlawful conduct, but to fashion criminal and
bankruptcy penalties that are proportionate to the gravity of
the offense and the degree of injury and culpability--
precisely what the law has traditionally done when assessing
penalties. A minor or technical violation of a trespass
statute resulting in no actual harm to person or property
would hardly seem the sort of conduct that should trigger the
severe nondischargeability penalty that this amendment would
impose.
Perhaps even more significant is the risk that the
amendment will chill lawful conduct. The amendment includes
an exception for expressive conduct protected from legal
prohibition by the First Amendment, but that does not change
what the bill does or its likely chilling effect on
protesters. Congress already lacks the power to prohibit
conduct that is protected from prohibition by the First
Amendment, and no bill can change that, yet anecdotally we
hear of instances in which people decline to participate in
legitimate pro-life demonstrations because of concerns about
liability. Those concerns are not exaggerated give present
misuse of the federal racketeering statute. People should not
have to fear putting their assets at risk simply by doing
what the Constitution permits. The amendment, in my view, is
likely to heighten that fear and further deter legitimate and
lawful protest.
Michael F. Moses,
Associate General Counsel.
Mr. FROST. Mr. Speaker, I yield 10 minutes to the gentleman from New
York (Mr. Nadler).
Mr. NADLER. Mr. Speaker, I rise today in opposition to this rule. For
my colleagues on both sides of the aisle who have profound concerns
about this bill, I hope that you will realize that the crucial vote
will be on the rule, not the bill. Because the rule is where it will
have real effect.
There are many reasons to oppose this bill. This bill is opposed by
almost all bankruptcy professionals, people who know anything about
bankruptcy. It is opposed by organized labor, by almost every women's
group, by children's advocates, by every consumer group, by civil
rights organizations, and by most bankruptcy scholars. It is supported
and is being pressed forward by a coalition of banks, credit card
companies and other business interests who want to profit exorbitantly
at the expense of families and small businesses at a time of crisis.
It is shocking that at a time when the American people are rightly
outraged at the illegal and unethical machinations of many in corporate
America, at a time when thousands of Americans are losing their jobs,
at a time when many businesses large and small are in bankruptcy trying
to stay alive and reorganize and preserve jobs, it is shocking that we
would even be considering this kind of a special interest bill that
will enrich lenders at the expense of families, jobs and small
businesses and will force many businesses into liquidation and job
destruction instead of reorganization and survival. Whatever Members
may have thought of this legislation in the past, I hope they will take
a very careful look at the bill we have before us today and think about
what has happened since this bill was first proposed 5 years ago and
since it was really debated on the floor at great length and people may
have made up their minds.
We know that the lenders who have been demanding this bill, the big
credit card companies and the big banks, are highly profitable. They
are making big money off our constituents with high interest rates that
have not come down with drops in bankruptcy or the prime rate. The
prime rate is the lowest it has ever been. Have credit card interest
rates come down?
My colleague from the State of Virginia says that there is a hidden
tax of $400 per family because of deadbeats who do not pay. That is
nonsense. What he is really saying is that the credit card companies
would lower their interest rates if this bill passed. The prime rate
has gone down by 8 or 9 points. Have the credit card companies lowered
their interest rates? Credit card companies will never lower their
interest rates because it is an oligopolistic business and they gouge
from the people what they can gouge.
We know that many large banks have played a role in some of the more
egregious financial scandals that have robbed workers and investors of
their life's savings and their jobs. We know that this bill which
serves their interests and their interests only will make it easier for
these same large institutions to squeeze small debtors even more, to
squeeze small businesses even more, to place outrageous and undue
pressure on people to give up their right to a fresh start, and to make
even larger profits at the expense of the most vulnerable.
{time} 1530
We know that the millionaires exemption, the unlimited homestead
exemption in six States, will not be changed, will not be capped. The
bill will only limit that outrageous loophole that allows one to put
all of one's money into one's mansion, go bankrupt, and still have $10
million in the mansion, and this bill will limit that only if a wealthy
debtor manages to get found guilty of a specific type of fraud or of a
limited number of crimes or the most extreme torts resulting in serious
physical injury or death. It does nothing, let me say that again, this
bill does nothing about a multi-millionaire who wants to shield
millions of dollars in assets from creditors in a mansion, whether
those creditors are small businesses or other lenders or in some cases
the taxpayers. But the small debtor, him we will get.
What this bill will do is squeeze the more than 1\1/2\ million
Americans who
[[Page H8747]]
each year get in over their heads and need to reorder their finances,
pay off as much of their debts as they can and then start over. These
small debtors, the ones who do not have huge mansions in Texas or
Florida, will be squeezed beyond the breaking point by the draconian
provisions of this bill.
Let me repeat that statistic. Last year there were a million and a
half individual bankruptcies. The proponents of this bill will tell us
that that is a sign that we need to change the system and allow the
banks and the credit card companies to squeeze families even harder so
fewer people will go into bankruptcy. But there is another way to look
at this. These million and a half Americans every year who file for
bankruptcy are not crooks. Ninety percent of the people who filed for
bankruptcy did it either because they were laid off from their job,
they got divorced, or they had a medical emergency. They are in
bankruptcy because they lost jobs, because Congress failed to enact an
adequate national health care insurance program, because Congress
failed to provide a prescription drug benefit program, because people
lost their retirement savings because they invested in Enron, because
Congress allowed their unemployment insurance to run out, because
Congress voted to ship their jobs overseas, or for a variety of other
misfortunes. Yet our answer to them is not to give them a helping hand
in crises but to make things even harder for them. Is that what we are
going to offer them? Is that going to be our answer? That is
unconscionable.
The so-called means test in this bill would hold people to what the
IRS says they would need to live on even if their actual expenses are
higher. That test was so draconian that Congress told the IRS they
should not use it on tax cheats, but now we are going to let the big
credit card companies do what we have told the IRS it cannot do.
This bill would require the courts to assume that the income of a
family in bankruptcy is what it received in the 6 months preceding the
bankruptcy filing. So if someone got laid off, if they are 55 years old
and got laid off from their $75,000-a-year middle management job at IBM
and will never make $75,000 again, it does not matter. Their income
must be assumed to be $75,000 even though they are now only making
$25,000. It does not matter what the future holds. If someone once made
$75,000, they will forever make $75,000 says the income test that in
this bill, and the judge has no discretion about that. It ignores the
facts in reality. Many people in this economic climate will be in
bankruptcy precisely because they lost the jobs that used to pay them a
good income. Even still, if a family in crisis is found to be able on
the basis of this ridiculous means test to pay as little as $100 a
month for the next 5 years, they will be denied chapter 7 relief. They
will be branded by the law as abusers of the bankruptcy system.
We will be told that this bill does not affect families with incomes
below the median income. That is not true. Read the bill. It still
allows landlords to evict people below the median income more easily.
It still allows creditors to bring abusive and coercive motions against
people below the median income more easily. It still exempts many
creditors from the application of the bankruptcy rule that prohibits
abusive and coercive motions even against people below the median
income. It still makes it harder to save the family car in bankruptcy,
and it will make it easier to force many small businesses into
liquidation and thus cost jobs instead of allowing those businesses to
reorganize and survive. If my colleagues think this will not hurt
families at all income levels, I have a few bridges I want to sell
them.
I want to remind my colleagues that chapter 7 is no walk in the park.
It requires a debtor to liquidate all his or her assets and repay as
much of their debts as they can. A secured loan such as a home and a
car must still be paid off or the debtor loses the property. Bankruptcy
never relieves one of that obligation, and the bankruptcy stays in
their credit report for years and impacts their ability to borrow money
in the future and their ability to get a job or rent an apartment. Even
a debtor witness called by supporters of this bill complained that she
had these problems after she filed for chapter 7.
And the bill rewrites chapter 13. Even though two-thirds of the
people who voluntarily go into chapter 13 and had promised to repay a
portion of their debts failed to do so. They cannot make the goals of
the plan. This will throw millions of people into chapter 13
involuntarily, and because it will be written the way it is written, we
will have many, many debtors who are judged too rich for chapter 7 but
they cannot meet the requirements of the bill for chapter 13. They do
not have enough money under the means test; so they are too poor for
chapter 13. Too rich for chapter 7, too poor for chapter 13. They
cannot get any relief. They cannot go bankrupt. That is absurd.
The bill will make it harder for businesses to reorganize. Think
about the large retail chains that are now in bankruptcy. Landlords
will be able to shut down the reorganizations and have an absolute veto
power over the planning process. Chains like K-Mart or the various
cinema chains would have to close hundreds of stores and eliminate
thousands of jobs instead of reorganizing.
What this bill does not do is protect workers who lose their wages or
their retirement savings or their jobs because of corporate malfeasance
and bankruptcy. There have been a number of proposals by the
distinguished gentleman from Massachusetts (Mr. Delahunt), the lead
sponsor of this bill, the gentleman from Pennsylvania (Mr. Gekas), by
the junior Senator from Missouri and the junior Senator from Iowa to do
this, yet there is nothing in this bill to protect workers from
corporate wrongdoing. And if they are victims of corporate wrongdoing,
we are going to sock them in the teeth with this bill. They have to
take a number behind the crooks and behind the banks and the law firms.
This bill is part of the trifecta that we are giving businesses to
make up for the accounting reform that was passed because of public
outrage. We should not sacrifice our constituents to the special
interests at a time when they are hurting worse than at any time in a
decade. I urge a no vote on the rule. I urge a no vote on the
conference report. And with a no vote on the rule we would have a
chance of taking a fresh look in, I might remind my colleagues, a
Republican House and Senate next January, a fresh look at this bill and
see if we really want to say to the low income people and the middle
income people in this country we are going to sock them in the teeth. I
urge a no vote on this rule, and I thank the gentleman for yielding me
this time.
Mr. SESSIONS. Mr. Speaker, I yield 2 minutes to the gentleman from
Indiana (Mr. Pence).
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Mr. Speaker, I rise with a very heavy heart today to
oppose this rule, and I must confess to being a bit befuddled to this
very hour. I am a Member of this institution, like many, who supported
the outstanding work that this Chamber did on bankruptcy reform, and it
was politicized in the conference committee by the efforts of a Senator
that I should not name and whose actions I dare not characterize into
what has now become a debate over abortion in a bankruptcy bill. But
since it has become that and more to the point, Mr. Speaker, it has
become a debate over the freedom of speech, I must rise to oppose this
rule because I would offer today that the freedom of speech and freedom
to peacefully protest in the United States of America is more urgent
and more important than any individual legislation will ever be, and I
am not alone in thinking of this.
Professor Mary Ann Glendon, the Learned Hand Professor of Law at
Harvard University, supports the view that this legislation will
provide a chilling effect on the exercise of pro-life protestors in
America. She is joined also in her opinion by the United States
Conference of Catholic Bishops that argues ``The current language on
protestors in the bankruptcy bill will be used to impose another layer
of penalties upon protestors whose only offense was to place their
bodies in the path of those who take innocent children's lives,''
saying that the intent of the provision is clear. And even the Family
Research Council, calling that provision morally bankrupt, said it was
``plainly an attempt to silence by intimidation those who would
participate in legitimate nonviolent protest.''
[[Page H8748]]
Where the first amendment is concerned, prudence dictates caution,
Mr. Speaker, and I urge a no vote.
Mr. FROST. Mr. Speaker, I reserve the balance of my time.
Mr. SESSIONS. Mr. Speaker, I yield 2 minutes to the gentleman from
Missouri (Mr. Akin).
(Mr. AKIN asked and was given permission to revise and extend his
remarks, and include extraneous material.)
Mr. AKIN. Mr. Speaker, America does not have many home grown
terrorists, and that is because we have a first amendment.
Unfortunately this bill before us does terrible damage to the first
amendment that our forefathers and all of us have stood so bravely for
in the past. In summary, a Harvard law professor says that this is the
financial death sentence for peaceful protestors.
I recall so many years ago on a cold street standing with a sign and
I recall this woman that was going in to consider getting an abortion
or not, and I felt completely inadequate but I told her that we would
help her with services if she decided to keep her child. Today that
child is probably now trying to practice to get a driver's license.
I can never support a rule or a bill on this floor which would have
effectively imposed a financial death sentence on somebody who is
merely standing on a sidewalk trying to help save a life.
[From The Wall Street Journal, Aug. 15, 2002]
Bankruptcy and Abortion--II
We've written before about Senator Charles Schumer's not-
so-magnificent obsession with abortion and bankruptcy. He's
at it again. The New York Democrat continues to play abortion
politics with a promising bankruptcy bill.
The legislation in question passed both the House and
Senate in 1998 with bipartisan, veto-proof majorities. The
bill would make it more difficult for borrowers to file for
bankruptcy and thus evade debts that they can afford to pay.
Banks, which lose millions of dollars each year to these
Chapter 7 filers, favor the measure for obvious reasons. But
consumers also stand to benefit from a crackdown, since
they're the ones burdened with higher fees and interest rates
to compensate lenders for revenue lost through defaults.
Congress passed the latest version early last year and it
would be law today save for Mr. Schumer, whose agenda-laced
rider on abortion has mired the bill in conference ever
since. His amendment would prevent pro-life activists, and
only them, from using bankruptcy to avoid paying fines. The
provision, said Mr. Schumer, ``ensures those who use violence
to close clinics can't use bankruptcy as a shield.''
But no anti-abortion protestor has every succeeded in doing
such a thing. Current law, which already prevents people from
using bankruptcy to avoid paying fines related to violence,
makes the Schumer rider redundant. The Senator's real targets
aren't violent protestors of abortion but peaceful ones. And
the unspecific language in his proposal--``physical
obstruction,'' ``force or the threat of force'' and other
pliable expressions for enterprising litigators--is a bald
attempt to blur any legal distinction between the two. As
it's written, vigils, sit-ins, picketing and other nonviolent
activities could be interpreted as federal offenses.
We've seen this strategy from Mr. Schumer before. As a
Congressman back in 1994, he successfully navigated into law
the Freedom of Access to Clinic Entrances Act. Like his
current proposal, FACE uses vague terminology to group
together violent and peaceful protests for purposes of meting
out federal punishment. Under FACE, a first-time offender
convicted of ``interfering with'' or ``intimidating'' a
clinic patron is subject to a $10,000 fine and six months in
jail. No doubt, when civil rights protestors occupied
segregated lunch counters, they intimated many. Still, the
law managed to distinguish between civil disobedience and
militancy.
All their talk about deterring violence notwithstanding,
the Senator and his supporters are well aware that someone
lunatic enough to bomb a building is unlikely to change his
mind due to adjustments in the bankruptcy code. But someone
planning to distribute adoption pamphlets outside a clinic,
or participate in a prayer vigil on a public sidewalk, might
very well have second thoughts if a civil fine could cost him
his home.
Congress is set to revisit the issue when it returns next
month. Mr. Schumer insists that he ``is wholly committed to
passing a bankruptcy bill.'' Don't believe it. If he were
true to his word, he would removed his amendment, allow the
bankruptcy bill to pass, and reintroduce his abortion
provision as a separate piece of legislation.
But Democrats know that it's Republicans who are more
likely to be blamed if bankruptcy reform dies. Watch for Mr.
Schumer to keep his poison pill in place right through
November and continue presenting his obstructionism as ``a
victory for women.'' It certainly won't hurt his fund
raising.
Republicans, nonetheless, would be wise to wait him out.
The issue here is not abortion so much as free speech. Using
violent extremists as straw men, liberals are hoping to
snatch a formidable tool of protest from the opposition.
Their efforts should be resisted on principle.
Mr. FROST. Mr. Speaker, I reserve the balance of my time.
Mr. SESSIONS. Mr. Speaker, I yield 2 minutes to the gentleman from
Pennsylvania (Mr. Gekas), a champion of this bill.
Mr. GEKAS. Mr. Speaker, I thank the gentleman for yielding me this
time.
When we began this odyssey on bankruptcy reform some 5 years ago, we
began with two staunch principles guiding our pathway. One was to
guarantee that those who are so overburdened, so swamped, so flooded
with financial obligations that they could no longer make their way
into our society's ways that they would be given the ample opportunity
for a fresh start. That is what bankruptcy is all about. We guaranteed
it and expanded it. As a matter of fact, it can be said that someone
seeking a fresh start today under the bankruptcy reform that we want to
put into the law would have an easier time than the current law. So for
that purpose alone we should be supporting this legislation.
The other principle was and is that those who do approach the
possibility of repaying some of the debt should be accorded a mechanism
by which they can repay some of that debt over a period of years. Mind,
we said, not all the debt; mind, we said, over a period of years, but
yet the opportunity to regain some of the losses that the general
public would encounter if this individual were allowed not to pay
anything back. So those two principles have guided us right down to
this moment here on this floor.
The other point that has to be made in support of the rule and the
bankruptcy reform measure that underlies the rule is the fact, as was
mentioned by both gentlemen from Texas in their opening remarks, that
this measure over 5 years has enjoyed tremendous bipartisan support,
gaining over 300 votes each and every time that it has come to the
floor. Three hundred votes by any magician's count can determine
through that number by itself that this was a bipartisan approval of
the legislation, and it also is bicameral in different stages at
different times, but by the time we came to this floor today it was
bipartisan in nature.
I thank the gentleman for yielding me this time.
Mr. FROST. Mr. Speaker, I yield 5 minutes to the gentlewoman from
Texas (Ms. Jackson-Lee).
(Ms. JACKSON-LEE of Texax asked and was given permission to revise
and extend her remarks.)
{time} 1545
Ms. JACKSON-LEE of Texas. Mr. Speaker, just a couple of weeks ago, an
unspeakable tragedy hit not only this Congress, but it hit this Nation.
That was the loss of Senator Paul Wellstone, his wife and daughter,
staff and others who traveled with him on that fateful day. We lost a
warrior who was not afraid to speak for the voiceless and those that
could not be heard.
So I stand here today unabashedly opposed to this conference report
and this rule; and I believe Senator Wellstone would not mind me
standing in respect and admiration for his fight, for it was his
unrelenting work in the other body that caused this issue to remain in
the forefront, that although the representation of this legislation is
what many of us would have wanted it to be, a respect for consumer
interests as well as fiscal responsibility, it is a stomping out of the
rights of the poor who cannot speak.
For anyone to say that people go happily into the bankruptcy court, I
take issue, for the facts will prove out that those who file
bankruptcy, the bulk of Americans who file bankruptcy, are faced with
catastrophic illnesses; or the elderly, who have fallen upon hard times
because of their illness; divorcees; single parents; individuals who
have been laid off and now face the economic hard times of this Nation,
the very people right now who are now facing 5 and 6 percent
unemployment; the airline industry employees who lost their jobs after
9-11; the small business owners who collapsed in New York after 9-11.
Those are who file bankruptcy. Yet we have determined that these are
the very individuals that
[[Page H8749]]
we are going to knock outside of the boundaries of having access to the
bankruptcy court.
Let me tell you why. We have tried over and over again. Professor
Warren at Harvard University, a specialist in bankruptcy law, for the
past 5 years has said the means test is what it is, mean. It does not
help my good friends in the credit union, because what it does is it
puts a barrier, it closes the door, it puts the finger in the dike, if
you will, for innocent, hard-working Americans who simply want to get
themselves in order. It puts a means test in front of those who seek to
enter the bankruptcy court; and as well, if you want to fight the
issue, you must take monies that you do not have and go into a Federal
Court to go and be able to dismantle that particular means test.
It argues against the mindset to support our children, for it
promotes credit card debts and other debts over the ability to pay your
child support payments. We have argued over and over about this, and it
has not been fixed.
This is a bill that does not address the tragedy that I had in my
community, Mr. Speaker, and that is the collapse of Enron. This bill
does not address the tragedy of Cathy Peterson and her husband. I have
committed to fight until the end so that Cathy Peterson's fight can be
heard around the Nation.
What happened to Cathy Peterson? Her husband worked for Enron. While
he worked for Enron, he was felled, if you will, with a catastrophic
illness, terrible deadly cancer. And while Enron was engaged in its
malfeasance, of course, you realize that Enron filed for bankruptcy,
and within 24 hours 5,000 people were laid off or fired. Cathy
Peterson's husband was one of those.
They had to pay their COBRA insurance. They lost their home, Mr.
Speaker. They lost their home. He was suffering from an enormous tragic
illness. They lost their home. He was fired. While Enron filed
bankruptcy, while a corporate structure was allowed to stand, the
Petersons were knocked off their feet.
So Cathy Peterson has asked us to put a provision in that disallows
those who are filing bankruptcy, large corporations, from firing those
who are off on the basis of catastrophic illnesses. We did not address
that issue. So in Cathy Peterson's name, this bill should not go
forward.
We must recognize that in the name of those Enron employees who were
laid off, 5,000 of them, who would not have been able to secure a dime
of recovery had it not been for the fight of the AFL-CIO, for the fight
that I engaged in, for the fight that the Wall Street and Rainbow Push
engaged in, that we were able through the court process to get each of
them $13,500. Some of them still have not recovered, laid off, children
coming out of school.
This bankruptcy bill does not address the needs of Americans who have
fallen on hard times, who are sincere; and it does not address my good
friends in the credit union industry, because those are the consumers
who come every day to utilize those resources.
So in the name of women and children and hard-working Americans,
taxpayers, this bill should not go forward. In the name of my dear
friend and our friend, Senator Paul Wellstone, who stood in the other
body, standing on behalf of those who could not speak, I am committed
to say whatever happens, that we will fight to ensure that the
bankruptcy laws of this Nation do not stand as a barrier to those who
have worked and upon whose shoulders we have stood and built this
economy.
I can stand and say with all emotion that anyone who views these
passionate words as ones that cause them great discomfort, that is the
purpose of these words, because the voiceless cannot speak today.
The issue of bankruptcy reform has been a heated topic of debate in
this body since the first session of the 105th Congress, when shortly
before the National Bankruptcy Review Commission issued its report
recommending changes to the current bankruptcy laws; legislation was
introduced to dramatically change the way in which consumer
bankruptcies are administered under the U.S. Code, 11 U.S.C. sec. 101
et seq. We have battled with this issue until now and we see that the
leadership of the House, with a renewed vigor, will force a vote on
legislation for some of its favorite companies before the irons of the
last election have even cooled and a day before we adjourn for the
year.
Mr. and Ms. America, today is a preview of things to come. Today is
the beginning of a time when corporate interests, in this case the
interests of large creditors, will reign supreme and the interests of
the little guy will slip further down to the bottom of the barrel.
I have consistently said that the greatest challenge before us in the
bankruptcy reform efforts is solving the widely recognized inadequacies
of the law in the area of consumer bankruptcy. As it has always been in
the Congress, the key to this process, is, of course, successfully
balancing the priorities of creditors, who desire a general reduction
in the amount of debtor filing fraud, and debtors, who desire fair and
simple access to bankruptcy protections when they need them. H.R. 333
does not accomplish this goal. Instead it runs the interest of
consumers into the ground.
The bill before us today, will break the backs of working women,
disappoints children, and discourages people who are struggling to do
the right thing to get their lives back in order. This is a measure
that unfairly subverts the interests of consumers to the interest of
creditors--many whoms marketing strategies target individuals with
questionable means of paying back the debt they incur.
During prior consideration of this bill I pointed out the unruly
conduct of credit card companies that target college students with no
income knowing that they are vulnerable and likely to charge up
significant debts often without the knowledge and guidance of their
parents. ``An analysis [by Nellie Mae], a leading provider of student
loans, of students who applied for credit-based loans with Nellie Mae
in calendar year 2000 showed that 78 percent of undergraduate students
(aged 18-25) have at least one credit card. This is up from the 67
percent of undergraduates included in a similar study by Nellie Mae in
1998. In years past, these same students would not have been given
credit cards, certainly not without a co-signer.'' This is continued
evidence that the credit card industry continues to prey on the lack of
wisdom that many of our nation's youth have about the burdens of
accumulating massive amounts of debt. This bill gives them license to
continue to do so.
This bill also uses an unrealistic inflexible formula to determine
who is eligible for Chapter 7 bankruptcy relief. The measure uses
Internal Revenue Service guidelines to determine what expenses a
consumer has as opposed to using the debtors actual living expenses.
The effect of this is to render many debtors ineligible for relief
under Chapter 7 bankruptcy by estimating their living expenses as much
less than they actually are. The formula also uses the debtors prior
six months income to calculate what the debtor will have available to
pay creditors even if that income is no longer available. The only way
for the debtor to change these assumptions is to go into court. Let me
ask you Mr. and Ms. America, what person seeking bankruptcy can afford
to go to court and litigate the matter. The prospect of this expense
alone is enough to force consumers to take extreme measures in order to
satisfy their debts.
H.R. 333, also places the interests of creditor over the interest of
children. By allowing a greater number of non-child support debts to
survive bankruptcy, the measure diverts more money to creditors and
away from parents paying and receiving child support. The bill sets up
a competition for scarce resources between parents and children
benefitting from child support both during and after the bankruptcy.
Single parents facing financial crises brought on by divorce,
nonpayment of support, the loss of a job, uninsured medical expenses or
domestic violence will find it harder to regain economic stability
through the bankruptcy process.
Many women find themselves as single parents and the primary
providers for their children. As a result women are the fastest growing
and largest group filing bankruptcy today. In 1999, over half a million
women filed for bankruptcy by themselves--more than men filing by
themselves or married couples. Of this number, over 200,000 women who
filed for bankruptcy in 1999 tried to collect child support or alimony.
The domestic support provisions of H.R. 333 does not solve the problems
faced by women in bankruptcy and does nothing to address the additional
problems it would cause to the hundreds of thousands of women forced
into bankruptcy each year, including the single mothers forced into
bankruptcy because they are unable to collect child support.
While women, children, students and the average working person in
America are forced to make more available for creditors to seize in the
event of financial difficulty, the bill makes minimal changes to that
which the wealthy will be forced to part with in the same circumstance.
Although the bill contains some new limits on the once unlimited
homestead exemption, the so-called ``millionaires' loophole,'' it still
allows some rich debtors (those who have not been found to have
committed certain types of wrongdoing, or those who
[[Page H8750]]
have owned their home in the state longer than 40 months) to protect an
unlimited amount of value in their residences. The wealthy should not
be permitted to walk away from their debts and pocket millions, while
working Americans get squeezed by a stringent and inflexible new rule.
I am for bankruptcy reform, but I believe that it must be equitable
and fair to all interested parties. I am for bankruptcy reform that
recognizes the financial interest at stake for the debtor, his or her
family and the creditors. As elected officials for the American people
we must protect America's families. In this time when corporations like
Enron and Worldcomm have laid off thousands of employees, we should at
least consider granting them the priority status they deserve. Under a
bill that I had proposed, H.R. 5110, the omnibus Corporate Reform and
Restoration Act, we would have raised the bankruptcy claim for workers
from $4000 to $15,000. This would have ensured that they receive
compensation as priority creditors for the corrupt actions of corporate
malfeasance.
Financial hardship is a serious matter that deserves legislative
reform that is the product of a deliberative process. This bill, is an
extreme bill undertaken at the behest of special interest groups. We
must protect working--class families. We must work to find a viable
solution that deters abuse of the bankruptcy system while preserving
the fresh start for debtors whose debts have been discharged. It is
ironic that the consumer lending industry actively solicits consumers
with promises of easy access to credit. We all know the pitches: ``buy-
now, pay later;'' ``No interest expenses for the first six months/year
etc;'' ``No credit check, your job is your credit.'' Then, after
addicting debtors to this ``financial crack'' lenders come to us
begging for reform. Surely lenders bare some culpability for these
beguiling and misleading advertising blitzes which entice individuals
who might not otherwise qualify or apply for credit. Surely they have
some roll to play in the unprecedented levels of American debt.
Congress has a time honored tradition of careful consideration of
bankruptcy laws dating back 100 years. In the past members of this body
have elected to carefully preserve an insolvency system that provides
for a fresh start for honest, hard working debtors, protects small
businesses and jobs, and fairly balances the rights of debtors against
the rights of creditors. This measure is an unfortunate departure from
this tradition and places the financial well being of the American
people in harms way. I oppose this legislation and urge my colleagues
to do the same.
Mr. SESSIONS. Mr. Speaker, I yield 1 minute to the gentleman from
Tennessee (Mr. Jenkins).
Mr. JENKINS. Mr. Speaker, I rise in support of this rule. This
legislation appears to me to be a compromise that is filled with
positive aspects of the give and take of the legislative process and
saturated with the element of common sense that both sides to this
controversy say that they strive to achieve.
In one aspect that has already been mentioned, it penalizes the
adjudicated intentional violator of the law and the intentional tort
feasor and precludes him from escaping the consequences of his act by
hiding behind the provisions of the bankruptcy act. I think this is
entirely proper, because the bankruptcy act was never intended to
protect anyone in this situation.
At the same time, it protects the innocent who are simply exercising
their constitutional rights, who are lawfully assembled or expressing
their freedom of speech.
I urge my colleagues to vote for the rule and to vote for the
conference report.
Mr. FROST. Mr. Speaker, I reserve the balance of my time.
Mr. SESSIONS. Mr. Speaker, I yield 1 minute to the gentleman from
Arizona (Mr. Shadegg).
Mr. SHADEGG. Mr. Speaker, I thank the gentleman for yielding me time.
Mr. Speaker, I rise in reluctant, but adamant, opposition to this
rule. I say to my colleagues, make no mistake about it. The issue
before us is not abortion, and the issue before us is not bankruptcy.
The issue before us today is very important. It is the constitutional
right of free speech and peaceful protest.
Mr. Speaker, this rule is an unprecedented and shameful attack on the
right of free speech and peaceful protest. It does not matter where you
stand on abortion; you should oppose this rule and you should oppose
this legislation. If we pass this legislation, what we will be doing is
for the first time in American history creating two categories of free
speech, two categories of peaceful protest: one protected by our laws
and one not protected. We will be saying that, based on content of your
protest, you are either protected by our law or not protected.
It does not matter where you stand on the abortion law. If you care
about the right of peaceful protest, if you believe in the right of
people to exercise their constitutional first amendment rights, you
must defeat this rule and we must go back and do this legislation
again. Those who honor the right of free speech, those who honor the
right of peaceable protest must understand this is a fundamental
assault on the Constitution of the United States.
I urge the defeat of both the rule and the underlying legislation.
Mr. SESSIONS. Mr. Speaker, I yield 1\1/6\ minute to the gentlewoman
from Pennsylvania (Ms. Hart).
Ms. HART. Mr. Speaker, I rise in support of the rule for bankruptcy
reform. This Congress and prior Congresses have been very dedicated to
making sure that this country benefits from bankruptcy reform and these
attempts have been made to draw up a very good bill. Now we finally
have the opportunity to finish the job.
Congress has a responsibility to pass this legislation now and to
stop the bankruptcy system's abusers, those who have actually the
ability to repay these debts but use the current bankruptcy system as a
financial planning tool. This gaming of the system carries too high a
cost to consumers, by raising costs at an extremely critical time for
our economy.
Our economy needs all the help it can get. Consumer spending and
consumer credit are key elements of any plan for economic growth, and
bankruptcy abuse is having such a horrific effect on consumers'
finances that if current practices continue, approximately one out of
seven households will have filed for bankruptcy within the past decade.
Bankruptcy legislation has been debated. It has been refined; it has
been revised and amended for years. It is now time for action.
Unfortunately, much of this debate has been focused on the abortion
provisions in this bill. I ask my colleagues to look at the real
effects of those provisions. They are not effective. They will not harm
lawful protesters. I urge my colleagues to support the rule.
Mr. SESSIONS. Mr. Speaker, I yield 4 minutes to the gentleman from
Indiana (Mr. Souder).
(Mr. SOUDER asked and was given permission to revise and extend his
remarks, and include extraneous material.)
Mr. SOUDER. Mr. Speaker, I rise deeply disappointed. I am a strong
supporter of bankruptcy reform. I was a former retailer and business
person, and many of my supporters are in support of this. I cannot
believe that we are here on the floor debating this today and that this
bill has been brought up.
We are likely to hear in the closing remarks from some of our
leadership that this does not apply to pro-lifers and it does not sit
on free speech. I think they are terribly wrong, and they put many of
us in deep conflict in trying to defend civil liberties and, at the
same time, reform bankruptcy; and many of us are deeply disappointed in
our leadership that this bill has come forth.
I think many Americans around the country, as nearly every pro-family
and pro-life group in America, has stood arm in arm against this bill.
National Right to Life, which does not take positions on issues such as
this, is about the only one, and it does not mean that they favor the
bill; it just means they are silent.
This is going to be double-scored if the rule passes, and many
Members are going to have their ratings go down among conservative
groups, as well as liberal groups, permanently, because they have not
listened to their constituents at the grassroots level and the
organizations that represent them.
We are going to hear probably quoted from a memo by Kenneth Starr,
who has been hired by the business interests to advocate a position
that is manifestly inaccurate in his memo. He, for example, tries to
address the question and correctly points out that ``willful'' and
``intentional'' are the same. But that memo is silent on ``malicious,''
and that is a critical, critical point on this. He does not have
anything in there on ``malicious.''
[[Page H8751]]
The FACE Act makes it a tie; it ties the two together and makes pro-
lifers liable in a way that others are not. PETA is not liable. They do
not have a FACE Act. This law focuses on pro-life demonstrators. Yes,
it can reach many other demonstrators, possibly even anti-war
demonstrators if they protest in front of a factory that produces
weapons.
Peaceful protestors. The Mahoney case, one protester, kneeling in
prayer, was in front of a locked door, was found guilty by the D.C.
Circuit Court. One kneeling Christian, silently protesting abortion,
has had the force of law thrown at them. Where are we going in America?
Also in the Starr memo there is another false assumption, and that is
that somehow the courts are going to interpret this separate from the
same-as-additional law. The courts never interpret a new law as
redundant. They assume that we have a purpose. Senator Schumer is
correct in saying there is a congressional intent with this law. The
courts will rule that.
This is, in fact, a broad expansion of the government potentially
restricting civil liberties in all parts of protest, but particularly
those of us who were very pro-business, are first and foremost deeply
motivated by defending the most innocent of life, the little children.
We are not talking about violent protests. We tried to compromise. We
definitely favor it for violent, but peaceful, kneeling prayer should
never be deprived from civil liberties.
I urge my colleagues to carefully consider those commands from Mary
Ann Gloran of the Harvard Law School.
Because the proposed language is substantively identical to FACE, it
will be read in light of existing decisions under FACE. Existing
interpretations of FACE will almost certainly be read into
Sec. 523(a)(20). Worse, abortion clinics and their supporters will
likely argue that by re-enacting the same statutory language, Congress
has approved existing decisions and those confirmed their status as
valid and appropriate interpretations of FACE itself. This is a
critical point, because existing interpretations of FACE in the lower
courts, extraordinarily favorable to the abortion clinics and their
supporters, have not yet been accepted or rejected by the Supreme Court
of the United States. Congressional passage of proposed Sec. 523(a)(20)
could figure prominently in eventual Supreme Court arguments on the
interpretation of FACE, lending plausible support to the worst
interpretations of that statute.
I will not consider in this opinion letter the interpretations of
``force or threat of force,'' ``intentionally injure,'' or
``intimidate.'' Some interpretations of those provisions have been
surprisingly expansive, but those forms of protest are not the issue
for most protestors. The real work of FACE, and of proposed
Sec. 523(a)(20), is in the provisions that target anyone who ``by
physical obstruction . . . interferes with . . . or attempts to . . .
interfere with' interfere with'' access to a clinic. Each of these
terms has been construed or defined to mean more than first appears. No
actual interference, and no actual physical obstruction, is required
for a violation. Courts have found violations in peaceful protest that
did not actually prevent access to clinics.
``Physical obstruction'' is defined in 18 U.S.C. Sec. 248(e)(4) to
mean making ingress or egress ``impassable . . . or unreasonably
difficult or hazardous.'' What is ``unreasonably difficult'' has, in
the lower federal courts, sometimes turned out to be remote from
physical obstruction.
Thus, in United States v. Mahoney, 247 F.3d 279 (D.C. Cir. 2001), the
court found physical obstruction and interference with access from a
single protestor kneeling in prayer outside a locked door to an
abortion clinic. Id. at 283-84. The door was a ``rarely used''
emergency exit. The court said that someone might have used the door,
and that the law does not distinguish frequently and infrequently used
doors. More remarkable still, the court held that a single person
kneeling in prayer rendered use of that door ``unreasonably difficult''
and forced patients to use a different entrance. Id. at 284.
Mahoney also held that six other defendants physically obstructed and
interfered with access to another door. The court of appeals' entire
discussion of this holding is that five protestors ``knelt or sat
within five feet of the front door,'' that the sixth defendant ``was
pacing just behind them,'' and that they ``offered passive resistance
and had to be carried away.'' Id. at 283. The court does not even say
whether they were arrayed across the sidewalk or along the sidewalk,
whether they left a passage open, or any other fact that might to a
plain meaning understanding of ``physical obstruction'' or to
preserving a reasonable right to protest. It was enough for a violation
that they were near the door.
Both FACE and proposed Sec. 523(a)(20) are limited to ``intentional''
violations, but Mahoney shows that protection to be illusory. The court
found specific intent to interfere with access to the clinic, even in
the case of the lone protestor praying before the locked door. It
relied on the fact that the protestor prayed that women approaching the
clinic would change their mind about getting an abortion; the court
quoted his prayer as evidence of criminal intent. 247 F.3d at 283-84.
To similar effect is United States v. Gregg, 32 F. Supp. 2d 151, 157
(D.N.J. 1998), aff'd, 226 F.3d 253 (3d Cir. 2000), cert. denied, 523
U.S. 971 (2001). Gregg had much more evidence of actual obstruction
than Mahoney. Even so, the Gregg court relied on defendants' ``anti-
abortion statements, including imploring women not to go into the
clinic or not to kill their babies,'' and on the fact that defendants
``carried anti-abortion signs,'' as evidence of forbidden intent. The
government in these cases has offered evidence of opposition to
abortion as evidence of specific intent to obstruct access, and the
courts have relied on this evidence for that purpose. Clinics and their
supporters would of course argue that Congress has codified these
holdings if it enacts proposed Sec. 523(a)(20).
Courts have emphasized that FACE plaintiffs need not prove actual
obstruction. ``It is not necessary to show that a clinic was shut down,
that people could not get into a clinic at all for a period of time, or
that anyone was actually denied medical services.'' People v. Kraeger,
160 F. Supp. 2d 360, 373 (N.D.N.Y. 2001). Plaintiffs need not ``show
that any particular person was interfered with by the defendants'
obstruction.'' United States v. Wilson, 2 F. Supp. 2d 1170, 1171 n.1
(E.D. Wis.), aff'd as United States v. Balint, 201 F.3d 928 (7th Cir.
2000).
To sum up, proposed Sec. 523(a)(20) would re-enact statutory language
that has been interpreted not to require actual obstruction, has been
interpreted to prohibit a single protestor kneeling in prayer near an
unused exit, and has been interpreted to treat anti-abortion statements
as evidence of criminal intent. These interpretations would almost
certainly be read into Sec. 523(a)(20), and there would be a serious
argument that Congress had confirmed these interpretations in FACE
itself.
{time} 1600
Mr. SESSIONS. Mr. Speaker, I yield 1 minute to the gentleman from
Utah (Mr. Cannon).
(Mr. CANNON asked and was given permission to revise and extend his
remarks.)
Mr. CANNON. Mr. Speaker, I rise today in support of H. Res. 606, the
rule providing for consideration of the Bankruptcy Abuse, Prevention
and Consumer Protection Act Conference Report. Congress has been
working on balanced bankruptcy reform legislation for nearly 5 years.
The conference report on H.R. 333 reflects countless hours of
bipartisan efforts.
This conference report does not penalize any lawful behavior. It only
applies when a person violates the law; second, a court then enters an
award against that person; third, the person later files a bankruptcy
other than a chapter 13 bankruptcy or liquidation bankruptcy; and
fourth, that person thereafter seeks to discharge a debt based on fines
or penalties assessed because of the unlawful protest activity.
This provision is written in an evenhanded, neutral way. It does not
single out abortion-related protests, but it targets any violent
protestors of providers of any lawful goods or services. It would
equally apply to the anti-IMF/World Bank protestors who threw rocks
through the window of the bank and attempted to impede delegates from
entering the World Bank's headquarters. It could also apply to similar
protests by animal rights activists, environmentalists, and unions.
As a committed pro-life Member of Congress, I am satisfied that the
compromise does not impose unconstitutional or discriminatory burden
upon peaceful pro-life protestors. I want to thank the chairman, the
gentleman from Wisconsin (Mr. Sensenbrenner) for his leadership on this
issue, and I urge my colleagues to support the rule and the underlying
bill.
Mr. SESSIONS. Mr. Speaker, I yield 3 minutes to the gentleman from
New Jersey (Mr. Smith).
Mr. SMITH of New Jersey. Mr. Speaker, I thank the gentleman for
yielding me this time.
Mr. Speaker, again, I want to reiterate, I rise in very strong
opposition to this rule and to the underlying bill that will follow it
if the rule does pass.
Let me again point out that this bankruptcy reform conference report
[[Page H8752]]
contains an unrelated provision that was not included in the bill that
passed out of this body that discriminates against peaceful, pro-life
protestors, and that is why I oppose this.
Mary Ann Glendon wrote an incisive analysis that every Member should
read. The Catholic Conference has put out a very strong statement
pointing out how unjust this language is. This takes the FACE bill
passed back in 1994 over the opposition of my good friend, the
distinguished chairman of the Committee on the Judiciary, the gentleman
from Wisconsin (Mr. Sensenbrenner) and myself, and makes it even worse
by making civil fines that are levied nondischargeable.
Much has been made about the Starr memo, which I would respectfully
submit misses the point by a mile and is unworthy of Ken Starr. He
argues, for example, and the gentleman from Utah (Mr. Cannon) made this
point a moment ago, that rigorous intent requirements; i.e. law-
breaking, are included in the conference report. Martin Luther King was
an intentional law breaker. We rightly honor him with a national
holiday. A tremendous man who went to prison--served short prison
sentences--and faced modest and proportionate penalties in his quest
for social justice. For Dr. King, law breaking was a means to an end.
Pro-lifers, on the other hand, are subjected to ruinous penalties for
the same acts of civil disobedience. Nonviolent civil disobedience,
obstruction, getting in the way, as was mentioned by one of my
colleagues, kneeling in front of a door, praying at an abortion clinic,
is construed to be a violation of the FACE Act and then, when the
penalties are levied, the pro-lifers cannot discharge the ruinous
judgements imposed on them.
Mr. Starr also says that section 330 is evenhanded. That, I say to my
colleagues, is unmitigated nonsense, it is misleading, and it is false.
Section 330 only has the appearance of evenhandedness. Other activists,
labor activists, antiwar, PETA, all the groups that use civil
disobedience as a means of bringing attention to their cause get a slap
on the wrist, a 30-buck fine, they are out of jail the next day. Not so
for pro-life protestors. They are under the FACE Act and are
discriminated against and singled out for ruinous monetary penalties
and criminal penalties and, again, we are talking about nonviolent
activities.
Back in 1994 I would remind my colleagues I offered the substitute
amendment to FACE on the floor that said for those who throw bombs or
kill at abortion clinics, are jailed and appropriately fined. But for
peaceful protestors, those men and women whose only motive is to try to
deter an abortion, another act of violence, to say there is another
way, so they have a sit-in. Perhaps they sit in front of a door or they
have a pray-in. These things happen all the time. A successful
complaint made by the abortion clinic, for example, would be
nondischargeable under this legislation.
So to say section 330 is evenhanded when the underlying statute is
applied unevenly to pro-lifers versus all other activists is
unmitigated nonsense, and again I am very discouraged that Mr. Starr
would put out such a misleading memo.
Vote ``no'' on the rule.
Mr. FROST. Mr. Speaker, I continue to reserve the balance of my time.
Mr. SESSIONS. Mr. Speaker, I yield 6 minutes to the gentleman from
Wisconsin (Mr. Sensenbrenner), the chairman of the Committee on the
Judiciary.
(Mr. SENSENBRENNER asked and was given permission to revise and
extend his remarks.)
Mr. SENSENBRENNER. Mr. Speaker, before I begin my remarks, let me
insert for the Record the memo written on October 4, 2002 by the
Honorable Kenneth Starr addressed to Mr. Bartlett of the Financial
Services Roundtable, since the gentleman from New Jersey (Mr. Smith)
has repeatedly referred to it.
Washington, DC, October 4, 2002.
Hon. Steve Bartlett,
President, the Financial Services Roundtable, Washington, DC
Dear Mr. Bartlett: This letter responds to your request for
my views with respect to Section 330 of the Conference Report
on H.R. 333, the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2002. In particular, you requested my view
concerning two aspects of Section 330: the effect it will
have on anti-abortion protests, be they lawful or unlawful;
and the effect it will have on other types of protests,
including the recent IMF/World Bank protests.
In my view, Section 330 will have very little practical
effect. Importantly, the provision does not penalize any
lawful behavior. To the contrary, it applies only if (i) a
person violates the law; (ii) a court then enters an award
against that person or the person settles the charges; (iii)
the person later files a bankruptcy other than a Chapter 13
bankruptcy; (iv) the person thereafter seeks to discharge a
debt based on fines, damage awards, or other penalties
assessed because of the unlawful protest activity; and (v)
the creditor continues to pursue the matter. Even then,
Section 330 overlaps almost entirely with Bankruptcy Code
Sec. 523(a), which already prohibits the discharge of fines
payable to the government and civil damages resulting from
intentional injury to others. As a result, Section 330 will
have at most minimal practical effect. What is more, the
Conference version of Section 330 contains rigorous intent
requirements that should prevent any innocent protesters from
being swept up in its provisions. Thus, even if Section 330
does have some limited practical effect, that effect should
be felt only by the intentional lawbreakers it expressly
targets.
In answer to your second question, Section 330 is written
in an evenhanded, neutral fashion. It applies not only to
abortion-related protests, but also to unlawful protests
targeted at the providers of any lawful goods or services. By
its express terms, Section 330 applies--with no exceptions--
to all those who unlawfully intimidate or interfere with a
person by physical obstruction or threat of force if those
actions were motivated by the person's obtaining or providing
of any lawful goods or services. Thus, it would apply, for
example, to the anti-IMF/World Bank protesters who apparently
threw rocks through the window of a bank and attempted to
impede delegates from entering or departing the World
Bank's headquarters. So too, it would apply to similar
protests by animal rights activists, environmentalists,
and unions.
It bears emphasis that the Conference compromise bill
represents a substantial improvement over the original Senate
bill. Under the Senate bill, debt related to an unproven
allegation of ``harassment,'' or an unintentional violation
of a court order, could have been nondischargeable. In
contrast, under the Conference compromise, there must have
been an actual and intentional ``violation'' of either the
federal Freedom of Access to Clinic Entrances Act, 18 U.S.C.
Sec. 248 (``FACE''), or a court order. These significant
improvements over the now-replaced Senate version are some of
the reasons that Section 330 will not have significant
practical or legal effect in light of the state of existing
law.
Section 330 is primarily a restatement of existing law
Section 330 is primarily a restatement of existing law. The
Bankruptcy Code has long provided that any debt ``for a fine,
penalty, or forfeiture payable to and for the benefit of a
governmental unit'' is not dischargeable in bankruptcy. 11
U.S.C. Sec. 523(a)(7). As a result, criminal fines and civil
penalties payable to the government are already
nondischargeable.
The Bankruptcy Code further provides that civil damages
payable to private parties are nondischargeable if they
result from ``willful and malicious injury by the debtor to
another entity or to the property of another entity.'' 11
U.S.C. Sec. 523(a)(6). The courts have interpreted this
language broadly to include injuries to intangible personal
or property rights. See 4 Collier on Bankruptcy para.
523.12[2] (15th ed. rev. 2002). As a result, the pivotal
limitation on this provision is the intent element--a debt is
nondischargeable in bankruptcy only if the debtor
intentionally caused the injury. See Kawaauhau v. Geiger, 523
U.S. 57, 61 (1998).
Our research has revealed that, to date, three courts have
issued published decisions on the question whether debtors'
abortion protest-related debts were dischargeable in
bankruptcy. Each held the debts to be nondischargeable under
Section 523(a)(6). See In re Treshman, 258 B.R. 613 (Bankr.
D. Md. 2001); In re Bray, 256 B.R. 708 (Bankr. D. Md. 2000);
In re Behn, 242 B.R. 229 (Bankr. W.D.N.Y. 1999). As one court
explained, the debt was not dischargeable because the debtor
had acted ``with the specific intent to interfere with or
intimidate the plaintiffs from engaging in legal medical
practices and procedures.'' Bray, 256 B.R. at 711. Each court
also noted that the conduct at issue, which included apparent
death threats, was unlawful and unprotected by the First
Amendment.
Of course, the ultimate issue of dischargeability
necessarily depends on the facts of each case. But Section
330 is drafted in such a way that it overlaps with Section
523(a)(6). Under Section 330, a debt is nondischargeable only
if the debtor violated either FACE or a pre-existing court
order or injunction.
Under the first of those circumstances, a debt is
nondischargeable only if the debtor: (i) intentionally
injured, intimidated, or interfered with a person, (ii) by
force, threat of force, or physical obstruction, (iii)
because the person was obtaining or providing any lawful
goods or services (such as fur products or banking services).
Because the injury, intimidation, or interference must be
intentional, any such debt would likely satisfy the existing
criteria for
[[Page H8753]]
nondischargeability under Section 523(a)(6). One might argue
that Section 523(a)(6) erects a higher standard than Section
330 because it requires ``willful and malicious'' (as opposed
to intentional) injury, but the terms ``intentional,''
``willful,'' and ``malicious'' have similar meanings in the
law. The Supreme Court has held, for example, that
``willful'' means ``deliberate or intentional'' in Section
523(a)(6). Geiger, 523 U.S. at 61. Thus, the Section 330 and
523(a)(6) standards appear to be very similar.
The second circumstance under which Section 330 renders
debt nondischargeable is when (i) the debtor violated a court
order or injunction that complies with the First Amendment
and protects the provision of lawful goods or services, and
(ii) either the debtor's violation was ``intentional or
knowing,'' or the violation occurred after the debtor had
previously been found to have violated the same court order
or another order protecting access to the same facility or
person. This provision of Section 330 might expand somewhat
on Section 523(a)(6), because a debtor might argue that
although he meant to violate an injunction (such as an
injunction prohibiting him from approaching within 8 feet of
a clinic entrance), he had no intent to intimidate or impede
anyone while within the restricted area. Thus far, however,
the courts have held that damages attributable to violation
of a court injunction against abortion-related protest
activity are ``ipso facto the result of a `willful and
malicious injury''' for purposes of Section 523(a)(6), in
part because the violation reflects an ``intention to cause
the very harm to the protected persons that [the] order was
designed to prevent.'' Behn, 242 B.R. at 238. While I find
this rationale questionable, it reflects the fact that courts
to date have already used Section 523(a)(6) for the same
purpose that Section 330 would serve. Thus, Section 330
represents either a restatement of existing law or, at most,
a modest extension of that law.
Even if section 330 were interpreted more broadly than the
existing nondischargeability provisions of the bankruptcy
code, it would still have no effect on lawful protest and
little effect on unlawful protest
Even if courts were to interpret Section 330 more broadly
than Section 523, the practical consequences would be
minimal. Section 330 does not affect lawful protest at all.
Even with respect to unlawful protest, it applies only if: a
person committed an intentional violation of the federal FACE
statute or a pre-existing court order or injunction; a court
entered an award against that person, or the person settled
the charges; the person later filed bankruptcy other a
Chapter 13 bankruptcy; the person would otherwise be entitled
to discharge a protest-related debt in bankruptcy,
notwithstanding Section 523(a) and the Bankruptcy Code's
other existing limitations on dischargeability; and the
creditor continued to pursue the matter. It would appear that
very few, if any, people will fall into this category. As
noted above, we have found only three reported cases in which
people challenged the dischargeability of abortion protest-
related debt, and in each instance the court held the debt
was nondischargeable under existing law. Thus, Section 330
would have had no effect in any of the reported cases to
date.
Even if a small number of protesters are affected by
Section 330, the Conference version of the bill seeks to
ensure that ``innocent'' protestors will not be affected. As
explained above, Section 330 applies only to those who either
(1) intentionally injure, intimidate, or interfere with a
person by force, threat of force, or physical obstruction; or
(ii) intentionally or repeatedly violate a court order that
complies with the First Amendment. While some such conduct
can be ``peaceful,'' it is nonetheless intentional conduct
that has a physical element to it (in the case of the FACE
statute) or that has already been judicially determined to
thwart legitimate state interests (in the case of an existing
injunction). Moreover, peaceful of ``innocent'' conduct is
not likely to lead to substantial damage awards that a debtor
would need to discharge in bankruptcy. Instead, the reported
cases to date have involved much more provocative, highly
aggressive behavior, including perceived death threats,
``wanted'' posters, and the like. For these reasons, it is
unlikely that anyone other than intentional and determined
lawbreakers, no matter how sincere the may be, will be
affected.
Section 330 is non-discriminatory
In any event, neutrality of operation is the order of the
day. Section 330, as I indicated above, applies by its
express terms to all those who unlawfully intimidate or
interfere with a person by physical obstruction or threat of
force if their actions were motivated by the victim's
obtaining or providing of any lawful goods or services. Thus,
it applies equally and neutrally to unlawful activity
directed toward the providers or recipients of all lawful
goods or services, not only abortion-related services.
The recent IMF/World Bank protests provide a useful example
of Section 330's intended neutrality. Many protestors, it
appears, attempted to interfere, by physical obstruction,
with the ability of the IMF/World Bank delegates to attend or
leave meetings because they disapproved of lawful services
provided by the IMF and World Bank. Other protestors
reportedly threw rocks through a window of a bank. All of
this behavior is covered by the plain language of Section
330. Also protected are similar protests by animal-rights
activists against stores that lawfully sell fur products and
the like; environmentalists that target oil and other
companies; and some unlawful union strike activity. As long
as an unlawful protest satisfies the Section 330 criteria, it
is covered to the same extent as an anti-abortion protest.
Conclusion
In sum, as modified in conference, Section 330 is primarily
a restatement of existing law. It targets only intentional
unlawful activity, and even then is not likely to have
significant practical effect. To the extent that it does have
such effect, Section 330 will apply neutrally and
evenhandedly to anti-abortion protests and other protests
aimed at business establishments.
While there is, to be sure, some risk that a court might
construe the statute unreasonably, the conference minimized
that risk by drafting the statute clearly. To provide further
protection, however, one of the sponsors of the legislation
(or another Representative) might consider making a statement
of intent on the House floor. While courts vary in their
treatment of such statements, some judges give consideration
to floor statements, especially those made by a sponsor of
the legislation. As a result, a suggested floor statement is
attached to this letter, for such consideration as may be
deemed appropriate.
Sincerely,
Kenneth W. Starr.
Mr. Speaker, I rise in support of the rule and the underlying bill.
This is essential bankruptcy reform which will help revive our economy.
In 1998, $40 billion of debt was written off, and that amounts to a
hidden tax of $400 for every family in this country who pays their
bills on time and is agreed upon, and that tax hits the poor people
hardest because that type of a tax is regressive.
We need to pass this legislation to prevent bankruptcy from being
used as a financial planning tool.
Now, my friends over here on my right claim that this is going to
hurt poor people. That is absolutely not true, because people who are
genuinely unable to repay their bills will be able to get their
discharge through chapter 7. But where there is a possibility of people
repaying their bills over a 5-year period of time, or some of their
bills, then they have to go through a reorganization, so that the money
is recouped and not passed on to the consumers.
I would point out that if this legislation goes down, either on the
vote on the rule or the vote on the conference report, the current
homestead exemption which is unlimited in places like Texas and Florida
will end up still being the law and the corporate crooks will be able
to put millions in their mansions and shield them from bankruptcy.
There is a partial plug to prevent people who defraud the public from
being able to do that, notwithstanding State law. So voting down the
rule gives the corporate crooks a get-out-of-bankruptcy-free card.
Now, to my friends over here on my left, we have heard an awful lot
of allegations that this bankruptcy provision that was negotiated
between Senator Schumer and the gentleman from Illinois (Mr. Hyde) is
an outrageous attempt to financially ruin pro-life protestors. There is
not a person in this Chamber that has given his life more to the pro-
life movement than the gentleman from Illinois (Mr. Hyde), and he
negotiated this and he signed off on this agreement, and I think that
we ought to respect his work for this pro-life movement.
We have heard that section 330 of the bill is an outrageous trampling
of first amendment rights. Let me read it for my colleagues.
It says, ``Except that nothing in this paragraph shall be construed
to affect any expressive conduct, including peaceful picketing,
peaceful prayer, or other peaceful demonstration protected from legal
prohibition by the first amendment of the Constitution.''
Read the bill. It does not affect first amendment rights. They are
protected by the Constitution, and the black and white text of this
provision protects things that are protected by the first amendment.
We have heard about the infamous Starr memorandum. A part of that
says that section 330 does not affect lawful protest at all. What it
does do is affect unlawful protest. And you are on the side of people
who break the law, who want to break the law. What we do here is we
protect people who want to abide by the law.
Now, in order for section 330 to come into play, there have to be
nine steps that are done by the person whose debt
[[Page H8754]]
is to be declared nondischargeable, and I want to go through them.
First, there must be a violation of Federal or State statutory law.
Second, the violation must result in some type of monetary liability
such as civil or statutory damages. Third, the monetary liability must
be based on a Federal or State court order or from a settlement
agreement entered into by the debtor. Fourth, the violation of the law
must result from an intentional act by the debtor. This does not apply
to unintentional violations of the law and, thus, it would not apply to
innocent protestors. Fifth, the intentional act must involve force, the
threat of force, or physical obstruction. Sixth, the intentional act
must result in intentional injury, intimidation, or interference, or
intentional damage or destruction of property. Seventh, the debtor must
have injured, intimidated, or interfered with a person because such
person obtained or provided lawful goods or services or because a
facility provides lawful goods or services. Eighth, the debtor must
file for bankruptcy relief; and ninth, the party holding the monetary
judgment against the debtor must bring an action in the bankruptcy
court for the purpose of having the court determine whether the
debtor's liability for the judgment is nondischargeable under section
330.
They have to do all nine of these things to get a debt
nondischargeable.
Now, if the opponents of this bill and the opponents of the rule are
successful, the current bankruptcy law which would stand makes all
fines and forfeitures nondischargeable, including those that arise
under the FACE Act. So defeating a necessary bankruptcy reform is not
going to accomplish this purpose. The rule and the bill ought to pass.
Mr. SESSIONS. Mr. Speaker, at this time we are nearing the end of the
speakers that we have and I would welcome an opportunity for the
gentleman from Texas (Mr. Frost) to close, and then it would be my
intent to briefly speak and then yield to our final speaker.
Mr. FROST. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, as we have heard, there is controversy on this rule.
This matter has been pending for some time. I personally support the
rule and the bill, and I urge adoption of the rule.
Mr. Speaker, I yield back the balance of my time.
Mr. SESSIONS. Mr. Speaker, I yield myself such time as I may consume.
This has been a vigorous debate today, one which has I think allowed
the opportunity for both sides of our conference to speak forthrightly
about the issues and the ideas which they see on this bankruptcy bill.
I will tell my colleagues that I believe that this is an economic
development package, part of the plan that we have from the Republican
Conference to help consumers and to help make sure the economy moves
properly. So I support not only this rule, but the underlying
legislation.
Mr. Speaker, I yield 1 minute to the gentleman from Texas (Mr. Armey)
to close.
Mr. ARMEY. Mr. Speaker, let me begin by thanking the gentleman from
Pennsylvania (Mr. Gekas), the gentleman from Wisconsin (Mr.
Sensenbrenner), the gentleman from Illinois (Mr. Hyde), and the
Committee on the Judiciary for the extraordinarily long and hard years
of dedicated work that they have attended to this subject.
Mr. Speaker, let me make another statement fairly clear. I believe it
is safe to say that if it were not for my personal insistence this bill
would not be on the floor today. Therefore, I think it is safe to
conclude that it is I that put this bill on the floor. Why would I do
that? Why would I put a bill on the floor that gives even myself a
conflict of visions?
There are two great values that are addressed in this bill, two
values that I hold dear in my heart and high in my hopes and dreams for
this great Nation: The one that precious lives will be saved, and the
other that they will be taught how to live precious lives.
Mr. Speaker, a good nation has a government that honors the goodness
of its people. A good nation is a nation that has law that knows the
goodness of its people and reflects and encourages them.
{time} 1615
A good Nation will have a law that honors what we teach our children,
so that in the law itself our children are encouraged to those
teachings which we pray into their lives will make their lives
successful in their own right and a blessing in the lives of others.
One of those things we teach our children is to be careful what
obligations we make in our lives, and to fulfill our obligations, and
default only as a last resort and as a matter of personal
embarrassment.
Our existing bankruptcy laws do not reflect that teaching. Our
existing bankruptcy laws belie our teaching when we are parents at our
best, instructing our children on the hopes that are our highest, about
their personal responsibilities. In short, Mr. Speaker, our existing
bankruptcy law says to our very same children: little darling, you are
a fool if you do not file. It is wrong, Mr. Speaker.
This bill is not here about the money. To think this bill is about
who gets the money or who keeps the money is too shallow an
understanding. This bill is about the character of a Nation and the
character of that Nation's law, and it is important. It is critical.
In this and in other ways, we must strive to have a government that
knows the goodness of its own people and has the decency to expect it
and to reflect it. That is why we are here with bankruptcy reform. That
is what we are about.
And yes, because of a provision that was put into this bill in the
other body, we are forced, and I, as deeply in my heart as any Member
in this Chamber, am forced to find myself in conflict with another,
perhaps even higher value, the right to present myself in encouragement
to others to not do this thing that would destroy this life, and to do
so without fear of punishment in our courts under a misguided law that
has no respect for our very own Bill of Rights, and that is the FACE
Act. It is a sabotage, we know that.
But bless his heart, our first, best champion for the life of the
unborn, the gentleman from Illinois (Chairman Hyde), fought this demon
to a draw to the best of his ability. We have people now who say to the
gentleman from Illinois (Chairman Hyde), that is not good enough. I am
not sorry, I say to the gentleman from Illinois (Chairman Hyde). I
thank the gentleman from Illinois. He is, in this case, as he has
always been, for the precious life of our precious babies, a good,
true, and faithful servant. He did his best. I love the gentleman for
his commitment. The gentleman from Illinois (Mr. Hyde) is to be
respected for what he did here to help our cause.
How do we save our precious allies and friends and neighbors and
devoted servants that go out there at risk already from the terror, the
economic terror of the FACE Act? We do not do it by changing this law.
The chairman of the committee has made that clear. There is no
protection under FACE by defeating this bill.
If FACE is the evil, a trespass against our Bill of Rights, a
trespass against our desire to save the unborn that we say it is, then
let us not fight this mock battle; let us fight the real battle. The
assault should be on FACE.
I believe I am correct in saying that those who find life precious on
both sides of the aisle are the majority in this body, and the majority
of this body drawn from both sides of the aisle can defeat FACE. That
is what we ought to be doing.
So I say to my friends, save what we can; do not lose what we can
over the hope that is without substance. Do not sacrifice the gains in
the instruction of our children over the failed effort to protect those
who would try to save our children. Vote for this rule; vote for this
bill. Give our children a better break and a better understanding, and
honor their parents as they teach their babies. Then come back, if you
will, with a vengeance and defeat this atrocity against our basic human
liberties called FACE. Get the villain and save the children.
Mr. JENKINS. Mr. Speaker, I rise in support of the rule for the
consideration of H.R. 333, the Bankruptcy Abuse Prevention and Consumer
Protection Act.
This legislation appears to be a compromise that is filled with
positive aspects of the give and take involved in the legislative
process and saturated with the element of comment sense that both sides
to this controversy say that they strive to achieve.
[[Page H8755]]
Today, I rise to discuss one aspect that has been mentioned
frequently on the floor today. The compromise language agreed to be the
conference committee penalizes the adjudicated intentional violator of
the law and the intentional tortfeasor and precludes him from escaping
the consequences of this act by hiding behind the provisions of the
bankruptcy act. This is entirely proper because the bankruptcy act was
never intended to protect anyone in this situation.
At the same time, it protects the innocent who are simply exercising
their constitutional rights--who are lawfully assembled or exercising
their freedom of speech.
We should remember that this legislation is the product of years of
hard work by the Judiciary Committee in both the House and Senate. This
legislation answers a plea from across our land to address a serious
weakness that exists in our system of providing relief to those who are
overwhelmed by financial burdens.
I urge my colleagues to vote in favor of the rule.
Mrs. KELLY. Mr. Speaker, I rise today in strong support for the rule
providing consideration for H.R. 333, the Bankruptcy Reform Conference
Report, because this issue boils down to two words: personal
responsibility. If a person assumes a debt, they are obligated to do
everything in their power to pay it off. Creditors should be made
whole, if possible. However, a safety net must remain for those who
legitimately cannot pay their debts.
Some of my colleagues are trying to paint the word creditors to mean
faceless financial institutions who are tricking consumers into
assuming debt. They specifically speak of credit card debt. They
unfortunately fail to note that credit card debt in the United States
amounts to only three point eight percent of all household debt.
Furthermore, only one percent of credit card accounts end up in
bankruptcy. Of that one percent it is estimated that fifteen percent of
those accounts can afford to repay some or all of their debt.
The people who are truly being hurt by our current bankruptcy system
are Americans who play by the rules and pay off their debts. Bankruptcy
costs the average American family about $400 a year.
Needs-based bankruptcy reform is well overdue, and that is what this
Bankruptcy Conference Report delivers. It is the people who game the
system that we need to stop.
I listened to my colleague from Virginia (Mr. Moran). He stated that
more people filed for bankruptcy than graduated from college. That is a
staggering fact. It's a transference of cost from those who overspend
to those who carefully manage their money.
I support the Bankruptcy Conference Reports provisions which
strengthen Code protections for ex-spouses and children. They have to
be supported. In the current bankruptcy law, child support and alimony
are placed seventh behind attorney fees as debt obligations. If
enacted, this bill would move child support and alimony payments to
first on the list of debt obligations.
Also under current law, some debtors use the automatic stay to avoid
paying child support payments after they file for bankruptcy. The
Bankruptcy Conference Report ensures less delay in the proper payment
of child support. I vehemently oppose any legislation that would reduce
the ability of women and children to receive support payments.
This Conference Report is a good legislation that moves us in the
right direction, and I ask my colleagues from both sides of the aisle
to join me in support of this reasonable reform by voting in favor of
the rule providing for consideration of this Conference Report.
Mr. BEREUTER. Mr. Speaker, this Member rises today to express his
support for the rule on the conference report for the Bankruptcy Abuse
Prevention and Consumer Protection Act (H.R. 333). This Member is an
original cosponsor of H.R. 333, which the House first passed on March
1, 2001, by a vote of 306-108. This Member is pleased that the House
and Senate conferees have finally reached an agreement on bankruptcy
reform which President George W. Bush is expected to sign. It is
important to note that bankruptcy reform bills passed both the House
and the Senate in the 105th and 106th Congresses. In the 105th
Congress, the House passed a bankruptcy reform conference report, while
the Senate failed to pass the conference report. In the 106th Congress,
former President Bill Clinton pocket vetoed a bankruptcy reform
conference report. During this Congress, the Conference Report was
delayed for too long over of all things, a tenuous connection drawn to
the subject of abortion clinics by conferees from the other body.
First, this Member would thank the distinguished gentleman from
Pennsylvania [Mr. Gegas], for introducing the original House bankruptcy
legislation, H.R. 333. This Member would also like to express his
appreciation to the distinguished gentleman from Wisconsin [Mr.
Sensenbrenner], the Chairman of the Judiciary Committee, for his
efforts in bringing this conference report to the House Floor for
consideration.
This Member supports the conference report for the Bankruptcy Abuse
Prevention and Consumer Protection Act for numerous reasons; however,
the most important reasons include the following:
First, this Member supports the provision in the conference report
for H.R. 333 which provides for a means testing, needs-based, formula
when determining whether an individual should file for Chapter 7 or
Chapter 13 bankruptcy. Chapter 7 bankruptcy allows a debtor to be
discharged of his personal liability for many unsecured debts. In
addition, there is no requirement that a Chapter 7 filer repay many of
his or her debts. However, Chapter 13 bankruptcy filers commit to repay
some portion of his or her debts under a repayment plan.
Some Chapter 7 filers actually have the capacity to repay some
of what they owe, but they choose Chapter 7 bankruptcy and are able to
walk away from these debts. For example, the stories in which an
individual filed for Chapter 7 bankruptcy and then proceeds to take a
nice vacation and/or buys a new car are too common. Moreover, the
status quo is costing the average American individual and family
increased costs for consumer goods and credit because of the amount of
debt which is never repaid to creditors.
As a response to these concerns, the needs-based test of the
conference report of H.R. 333 will help ensure that high income filers,
who could repay some of what they owe, are required to file Chapter 13
bankruptcy as compared to Chapter 7. This needs-based system takes a
debtor's income, expenses, obligations and any special circumstances
into account to determine whether he or she has the capacity to repay a
portion of their debts.
Second, this Member supports the additional monthly expense items
that are exempted from consideration under the needs-based test which
determines, under the conference report of H.R. 333, whether a person
can file either a Chapter 7 or 13 version of bankruptcy. These expenses
include the following: reasonable expenses incurred to maintain the
safety of the debtor and debtor's family from domestic violence; an
additional food and clothing allowance if demonstrated to be reasonable
and necessary; and actual expenses for the care and support of an
elderly, chronically ill, or disabled member of the debtor's household
or immediate family.
Third, this Member supports the permanent extension of Chapter 12
bankruptcy in the conference report of H.R. 333 since it allows family
farmers to reorganize their debts as compared to liquidating their
assets. Using the Chapter 12 bankruptcy provision has been an important
and necessary option for family farmers throughout the nation. It has
allowed family farmers to reorganize their assets in a manner which
balances the interests of creditors and the future success of the
involved farmer.
If Chapter 12 bankruptcy provisions are not permanently extended for
family farmers, its expiration on January 1, 2003, would be another
very painful blow to an agricultural sector already reeling from low
commodity prices. Not only will many family farmers have no viable
option but to end their operations, it likely will also cause land
values to plunge. Such a decrease in value of farmland will affect the
ability of family farmers to obtain adequate credit to maintain a
viable farm operation. It will impact the manner in which banks conduct
their agricultural lending activities. Furthermore, this Member has
received many contracts from his constituents supporting the extension
of Chapter 12 bankruptcy because of the situation now being faced by
our nation's farm families. It is clear that the agricultural sector is
hurting and by a permanent extension of the Chapter 12 authorization,
Congress can avoid one more negative possibility.
Lastly, this Member supports the provision in the conference report
of H.R. 333 which requires that people convicted of a felony or who owe
a debt from a securities fraud violation in the five years before
filing for bankruptcy cannot claim an unlimited homestead exemption.
Currently, there are only six states, including Texas and Florida,
which provide unlimited bankruptcy protection for a person's home.
Nebraska is not one of those six states as it has a maximum homestead
exemption of $12,500. This Member believes that this provision in the
conference report is imperative in light of the recent corporate
scandals at Enron and WorldCom. For example, this provision would apply
to the $7 million penthouse in Houston of Kenneth Lay, the former
chairman of Enron, if he both files for personal bankruptcy in the
future and owes a debt due to any conviction of securities fraud. In
addition, this provision may also be relevant to Scott D. Sullivan, the
former chief financial officer of WorldCom, who is building a $15
million mansion in Boca Raton, Florida.
In closing, for these aforementioned reasons and many others, this
Member urges his colleagues to support the conference report of H.R.
333.
[[Page H8756]]
Mr. SMITH of Texas. Mr. Speaker, I support the Bankruptcy Conference
Report. I know there has been deliberation about the effect of section
330 of the bill on anti-abortion protests. But I believe section 330
will have little practical effect. And the rest of this bill will an
overwhelmingly positive impact on the bankruptcy system.
Section 330 does not penalize any lawful behavior. It will apply only
if a person violates the law, a court enters an award against that
person, the person later files a non-chapter 13 bankruptcy and seeks to
discharge a debt based on their unlawful activity, and the creditor
pursues the matter.
It does not apply only to abortion-related protests, but also to
unlawful protests aimed at the providers of any lawful good or service.
The compromise reached in conference on this issue also contains very
stringent requirements that should prevent any innocent protesters from
being included in these provisions.
Moreover, this bill will curb bankruptcy abuse and protect consumers.
It will also address the loophole in current law that allows debtors in
certain states with unlimited homestead exemptions to shield an almost
unlimited value of their homes from their creditors.
In order to game the system, some debtors move to a state with an
unlimited homestead exemption just before they file for bankruptcy in
order to take advantage of that state's more generous homestead
protections.
H.R. 333 closes this loophole by requiring a debtor to reside in a
state for at least two years before that debtor can claim the state's
homestead exemption. In addition, a debtor must own the homestead for
at least forty months before they can claim the state's homestead
exemption protections.
H.R. 333 will stop corporate thieves from hiding their homestead
assets from those whom they have defrauded. It will cap a debtor's
homestead exemption at $125,000 if the debtor was convicted of a
felony, if the debtor violated a securities law, or if they engaged in
any criminal act, intentional tort, or reckless misconduct that caused
serious physical injury or death to another individual.
Homeownership strengthens the fabric of our society. It's the
American dream--and over 70% of Americans are living it. Owning a house
gives individuals and families a place to call home, where they can
arise their children and become active participants in their
neighborhoods and communities.
Since 1867, federal lawmakers have recognized the role of the states
in determining appropriate homestead exemptions.
States are in a much better position to determine an appropriate
exemption--they can more closely examine the factors that differ from
state to state, such as property values, real estate inflation, and
even demographics.
The balance between states' rights and the federal government is
important. Any abuses of the homestead exemption can and should be
addressed by the individual states themselves.
In Texas, the homestead exemption is embedded in the state
constitution to prevent the sale of one's home to repay debts, except
in three specific cases: when there is a debt for the purchase of a
home, a debt to finance the improvements to the home, or a debt for
property taxes or federal income and estate taxes.
The homestead exemption provisions were among the most contentious in
the conference and I am pleased we were able to reach a compromise on
this issue. The compromise we reached will prevent `bad actors' from
abusing the homestead exemption without punishing those who
legitimately belong in bankruptcy.
The overwhelming majority of people who declare bankruptcy do so
because they have no other choice. Bankruptcy law is intended to give
debtors a fresh start, not to punish them. Less than one percent of
bankruptcy debtors abuse the bankruptcy press. This bill will address
those `bad actors' while retaining the goal of giving sincere debtors a
fresh start.
I strongly support this conference report and I urge my colleagues to
support it, as well.
Mr. SESSIONS. Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The SPEAKER pro tempore (Mr. Gutknecht). The question is on the
resolution.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. FROST. Mr. Speaker, I object to the vote on the ground that a
quorum is not present and make the point of order that a quorum is not
present.
The SPEAKER pro tempore. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas 172,
nays 243, not voting 17, as follows:
[Roll No. 478]
YEAS--172
Armey
Bachus
Baird
Baker
Barton
Bass
Bentsen
Bereuter
Berry
Biggert
Blunt
Boehlert
Boehner
Bonilla
Bono
Boswell
Boucher
Brady (TX)
Brown (SC)
Burr
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Carson (OK)
Castle
Chabot
Clement
Coble
Collins
Cox
Cramer
Crane
Crenshaw
Crowley
Culberson
Davis (FL)
Deal
DeLay
Dicks
Dooley
Dreier
Duncan
Dunn
Edwards
Emerson
English
Etheridge
Fletcher
Foley
Ford
Fossella
Frelinghuysen
Frost
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Gonzalez
Gordon
Goss
Granger
Graves
Green (WI)
Greenwood
Hansen
Hart
Hastert
Hastings (WA)
Herger
Hill
Hinojosa
Hobson
Horn
Hulshof
Hyde
Isakson
Israel
Issa
Jenkins
Johnson (CT)
Johnson, E. B.
Keller
Kelly
Kind (WI)
King (NY)
Kingston
Kirk
Knollenberg
Kolbe
Lampson
Larsen (WA)
Latham
LaTourette
Leach
Linder
Lucas (KY)
Lucas (OK)
Maloney (CT)
Maloney (NY)
Matheson
McCarthy (NY)
McCrery
McHugh
McInnis
Meeks (NY)
Miller, Dan
Moore
Moran (VA)
Morella
Myrick
Nethercutt
Ney
Northup
Nussle
Ose
Oxley
Peterson (PA)
Petri
Platts
Price (NC)
Pryce (OH)
Quinn
Radanovich
Ramstad
Regula
Reynolds
Riley
Rivers
Rogers (KY)
Rohrabacher
Rothman
Royce
Ryan (WI)
Schrock
Sensenbrenner
Sessions
Shays
Sherwood
Simmons
Simpson
Skeen
Skelton
Smith (MI)
Smith (TX)
Smith (WA)
Snyder
Spratt
Stenholm
Strickland
Sweeney
Tanner
Tauscher
Taylor (NC)
Thomas
Thompson (CA)
Tiberi
Turner
Upton
Walden
Walsh
Watkins (OK)
Weller
Wilson (NM)
Wu
Wynn
Young (AK)
NAYS--243
Abercrombie
Ackerman
Aderholt
Akin
Allen
Andrews
Baca
Baldacci
Baldwin
Ballenger
Barcia
Barr
Barrett
Bartlett
Becerra
Berkley
Berman
Bilirakis
Bishop
Blumenauer
Bonior
Boozman
Borski
Brady (PA)
Brown (FL)
Brown (OH)
Bryant
Burton
Capps
Capuano
Cardin
Carson (IN)
Chambliss
Clay
Clayton
Clyburn
Conyers
Costello
Coyne
Cubin
Cummings
Cunningham
Davis (CA)
Davis (IL)
Davis, Jo Ann
DeFazio
DeGette
Delahunt
DeLauro
DeMint
Deutsch
Dingell
Doggett
Doyle
Ehlers
Engel
Eshoo
Evans
Everett
Farr
Fattah
Ferguson
Filner
Flake
Forbes
Frank
Gephardt
Goode
Goodlatte
Graham
Green (TX)
Gutierrez
Gutknecht
Hall (TX)
Harman
Hastings (FL)
Hayes
Hayworth
Hefley
Hilleary
Hilliard
Hinchey
Hoeffel
Hoekstra
Holden
Holt
Honda
Hostettler
Hoyer
Hunter
Inslee
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
John
Johnson (IL)
Johnson, Sam
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Kennedy (MN)
Kennedy (RI)
Kerns
Kildee
Kilpatrick
Kleczka
Kucinich
LaFalce
LaHood
Langevin
Lantos
Larson (CT)
Lee
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Lipinski
LoBiondo
Lofgren
Lowey
Luther
Lynch
Manzullo
Markey
Mascara
Matsui
McCarthy (MO)
McCollum
McDermott
McGovern
McIntyre
McKeon
McNulty
Meehan
Meek (FL)
Menendez
Mica
Millender-McDonald
Miller, Gary
Miller, George
Miller, Jeff
Mollohan
Moran (KS)
Murtha
Nadler
Napolitano
Neal
Norwood
Oberstar
Obey
Olver
Ortiz
Osborne
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Pence
Peterson (MN)
Phelps
Pickering
Pitts
Pombo
Pomeroy
Portman
Putnam
Rahall
Rangel
Rehberg
Reyes
Rodriguez
Roemer
Rogers (MI)
Ros-Lehtinen
Ross
Roybal-Allard
Rush
Ryun (KS)
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Saxton
Schaffer
Schakowsky
Schiff
Scott
Serrano
Shadegg
Shaw
Sherman
Shimkus
Shows
Shuster
Slaughter
Smith (NJ)
Solis
Souder
Stark
Stearns
Stupak
Sullivan
Sununu
Tancredo
Tauzin
Taylor (MS)
Terry
Thompson (MS)
Thornberry
Thune
Thurman
Tiahrt
Tierney
Towns
Udall (CO)
Udall (NM)
Velazquez
Visclosky
Vitter
Wamp
Waters
Watson (CA)
Watt (NC)
Watts (OK)
Waxman
Weiner
Weldon (FL)
Weldon (PA)
Wexler
Whitfield
Wicker
Wilson (SC)
Wolf
Woolsey
Young (FL)
NOT VOTING--17
Blagojevich
Boyd
Callahan
Combest
Condit
Cooksey
Davis, Tom
Diaz-Balart
Doolittle
[[Page H8757]]
Ehrlich
Grucci
Hooley
Houghton
McKinney
Roukema
Stump
Toomey
{time} 1717
Messrs. SHUSTER, GRAHAM, BARR of Georgia and ROGERS of Michigan, Mrs.
CUBIN, Messrs. EVERETT, REHBERG, BURTON of Indiana, OTTER, OSBORNE,
MICA, TERRY, KENNEDY of Minnesota, NORWOOD, GOODLATTE, CHAMBLISS,
PUTNAM, PORTMAN, POMBO, LEWIS of Kentucky, SAXTON, TIAHRT, LoBIONDO,
SHAW, WILSON of South Carolina and SUNUNU, Ms. ROS-LEHTINEN, and
Messrs. WHITFIELD, HOYER, McKEON, MENENDEZ, KERNS, BOOZMAN, THORNBERRY,
LEWIS of California, FERGUSON, LaHOOD, YOUNG of Florida and JOHNSON of
Illinois changed their vote from ``yea'' to ``nay.''
Mr. MORAN of Virginia, Mr. STENHOLM, Ms. RIVERS, Ms. EDDIE BERNICE
JOHNSON of Texas, Mr. MEEKS of New York, Mrs. MYRICK, and Messrs.
SPRATT, FOSSELLA, BROWN of South Carolina, CANTOR and EDWARDS changed
their vote from ``nay'' to ``yea.''
So the resolution was not agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________