Policy makers are working behind the scenes to come up with a way to let states declare bankruptcy and get out from under crushing debts, including the pensions they have promised to retired public workers. Unlike cities, the states are barred from seeking protection in federal bankruptcy court. Any effort to change that status would have to clear high constitutional hurdles because the states are considered sovereign.
But proponents say some states are so burdened that the only feasible way out may be bankruptcy, giving Illinois, for example, the opportunity to do what General Motors did with the federal government’s aid.
Beyond their short-term budget gaps, some states have deep structural problems, like insolvent pension funds, that are diverting money from essential public services like education and health care. Some members of Congress fear that it is just a matter of time before a state seeks a bailout, say bankruptcy lawyers who have been consulted by Congressional aides. ......
online.wsj.com/article/...2748703779704576073522930513118.html
A Bankruptcy Law—Not Bailouts—for the States
Last week, Gov. Andrew Cuomo pledged to implement an "emergency" agenda because "the state of New York spends too much money." Governors across the country are making similar promises, but the obstacles to achieving fiscal sustainability in many states are far too deep. To help overcome these obstacles, Congress needs to enact a law that will enable states to declare bankruptcy.
California is first on most lists of troubled states—and for good reason. Thanks to decades of implausibly generous promises to public union employees and other fiscal misdeeds, the state's budget deficit for the next 18 months could exceed $20 ...
Fortsetzung folgt hier:itmakessenseblog.com/2011/01/18/...ates-to-declare-bankruptcy/
-...Is there anything states can do in bankruptcy that a well-motivated governor can’t do without it? You bet there is.
First, the governor and his state could immediately chop the fat out of its contracts with unionized public employees, as can be done in the case of municipal bankruptcies. In theory, the contracts could be renegotiated outside of bankruptcy, and many governors are doing their best, vowing to freeze wages and negotiate other adjustments. But the changes are usually small, for the simple reason that the unions can just say no. In bankruptcy, saying no isn’t an option. If the state were committed to cutting costs, and the unions balked, the state could ask the court to terminate the contracts.
Second, the state could reduce its bond debt, which is nearly impossible to restructure outside of bankruptcy. While some worry about the implications for bond markets, the alternative for the most highly indebted states—complete default—is far worse. Randall Kroszner, a former Federal Reserve governor now at the University of Chicago Booth School of Business, showed in a 2003 study that the price of corporate bonds went up during the New Deal when the Supreme Court upheld legislation that reduced payments to bondholders. The reduction increased the prospect that bondholders would get paid. The prospect of state bankruptcy could have a similar effect, and even if it didn’t a reasonable reduction in state bond debt is essential to restructuring
Third, state bankruptcy could even permit a restructuring of the Cadillac pension benefits that states have promised to public employees. These are often “vested” under state law, and in some states, like California, are protected by the state constitution. Under state law, little can be done to adjust them to more reasonable amounts.
Although the law is somewhat murky, there is a strong argument that bankruptcy could provide for an adjustment of these obligations. Unless the state’s “guarantees” were construed as a property right protected by the Takings Clause of the Constitution (which is doubtful if there is no collateral or other indicia of a property right), the federal bankruptcy law would trump contrary state law under the Constitution’s Supremacy Clause.
There is little doubt that a federal bankruptcy law for states, based on a similar federal law enabling cities to declare bankruptcy (Chapter 9 of the Bankruptcy Code), would be constitutional. As the Supreme Court ruled in United States v. Bekins (1938), the key requirements are that a city not be forced to file for bankruptcy against its will, and that the law doesn’t usurp its political decision-making authority. A state bankruptcy law that honored these principles would be equally sound.
Congress could let the states decide who can file for bankruptcy, and the process would work best if the governor and legislature were fully committed to using it to get the state’s finances in order. Is there any solution if they aren’t all on board? In some states, the governor may be able to make the decision himself if this is consistent with state law. Even more intriguing is the possibility that voters could force their politicians’ hands. In a state like California, which allows for voter referendums, the voters almost certainly would have the power to make this decision..........

