California's continued fiscal woes are prompting more political observers to raise the question of whether or not California could file a Petition in Bankruptcy under Chapter 9, Title 11 of the United States Code, a chapter of the United States Bankruptcy Code available only to “municipalities.”
The pro-bankruptcy argument goes something like this: By filing for bankruptcy California could rescue itself from financial oblivion when government simply runs out of options to restructure outstanding debts. After all, that is the essence of why our federal Constitution provides for Bankruptcy as a remedy in the first place – to give the Debtor another chance.
If California could stretch the reach of Chap. 9 of the Bankruptcy Code, an option written exclusively for “municipalities,” to include it, being a state, California too could file Chap. 9 Bankruptcy and seek the protection of the Bankruptcy Court to reorganize its financial affairs and debt structure, including California’s contractual obligations of all kinds.
Under this scenario, a Bankruptcy Judge would then appoint a Trustee for the Debtor’s Estate – literally, all of California’s financial mess.
The Trustee would then be endowed by the Bankruptcy Code with the power to reject or accept or restructure existing contracts. This means that California, with the stroke of a Bankruptcy Judge’s pen, would be no longer bound by its pension, union, and other contractual obligations, leaving open lots of room for negotiation and giving this state back some serious leverage for bargaining its way out of the current financial disaster.
However as Paul Solman points out in this Q&A from PBS Business Desk, there's a big problem with the "bankruptcy" scenario:
A large and growing portion of the state's contractual commitments are to pensioners, among whom, full disclosure obliges me to reveal, is my sister. That's after 30 years in the LA County school system as a bi-lingual pre-K teacher to mostly Hispanic-American students -- a spectacular teacher, if the testimonials of her principal, present colleagues, and former students were to be believed. (Her funniest former student is TV's Carlos Mencia. My sister's pretty funny herself.)
But quite apart from whether my sister has earned her pension, California has a legal obligation, written into its state constitution, to pay employees what they've been promised before anyone else. The state would first have to DEFAULT on its bonds, far from an impossibility, as I pointed out here last spring.
Look, there are three major interest groups playing a game of chicken in California: its taxpayers, its employees, and its lenders. (Its vendors and social welfare recipients have little leverage in the game.) My guess is that the lenders are likely to take the next hit. No guesses at all after that. But like most iterations of chicken, the blinking will probably come late in the game.
Either way, one thing is for sure California's lawmakers have a difficult road ahead. Now more than ever it is time lawmakers come face to face with the financial reckoning that they have put off time and again.
Much like the federal picture, without serious spending cuts and reduction in the size of government, lawmakers will have to rely on heavier taxation — which would kill the economy, reduce revenues, and put us even further behind on debt reduction. The only real way to fix the problem is to dismantle Leviathan and stop relying on band-aid budgets and budgetary shell games.
Cross posted at the Sacramento Citizen