Commentary on the economy, the markets, and business

New column: Don't call it bankruptcy

I've got a new column online and in the issue of TIME with a tongue depressor (and a tongue) on the cover. It begins:

The phenomenon we now know as Chapter 11 bankruptcy was born during the financial panics that regularly pummeled the U.S. economy in the 1800s. Railroads had emerged as the country's first large industrial corporations, and every time the markets crashed and the economy slumped, many found themselves unable to pay their bills.

These railroads were worth more alive than dead, so inventive people figured out ways to reorganize them rather than shut them down. "The investment banks and lawyers and managers would negotiate a deal and get the courts to bless it," says David Skeel, a law professor at the University of Pennsylvania and author of Debt's Dominion: A History of Bankruptcy Law in America. "It was a very flexible reorganization process." It was also a uniquely American answer to business failure. The private sector took the lead. Reinvention--and rebirth--was the goal.

The reorganization option faded after William O. Douglas (then SEC chairman, later a Supreme Court Justice) persuaded Congress in 1938 to approve more punitive bankruptcy laws, but it was resurrected by Congress in 1978 as Chapter 11 of the bankruptcy code. Since then Chapter 11 has been used to reorganize airlines, steelmakers and countless other companies in trouble.

Now, though, something curious is happening. We've been hit by a financial crisis eerily reminiscent of those 19th century panics. But instead of going to bankruptcy court, troubled firms are lining up at the Federal Reserve, the Treasury Department and Congress. Read more.

The column echoes a bunch of things I've already written here, and ends up favoring some sort of Washington-arranged workout that looks a bit like Chapter 11 but isn't. I should point out that Megan McArdle wrote a post a couple of days ago claiming that the people who endorse such an approach share one crucial trait: They're from outside the Beltway.

All the analysts from left to right basically agree what should happen to GM, if there is a bailout:  it needs to get a lot leaner and a lot meaner:  slash the number of marques and car lines it makes, concentrating on a profitable core.  Smart commentators like Felix Salmon and James Surowiecki view the bailout as a way to give GM enough breathing room to accomplish that transition.

But no one inside the beltway, left to right, thinks that this kind of pseudo-LBO in any way resembles what is actually going to happen. The entire motivation for the bailout ... is to keep GM from precipitously shedding jobs.  And every marque you shut down, every line you slash, means closed plants and layoffs.

Mind you, I'm talking about the supporters of the bailout.  They view the thing as half Hail Mary pass to shore up a profitable sector of the labor movement, half fantasy bid for a green car that none of them has the faintest idea how to build ...  They emphatically do not view it as an orderly means to let GM shed 2/3 of its union workforce, which is one of the sunnier figures I've heard for a profitable firm.

The opponents, meanwhile, are considerably more cynical.  They (we) think that even if Congress allows substantial layoffs, they will do so in a way that will cripple the firms; plant/brand closures will be decided based on where the cars are produced, rather than their profit margins.

  • Print
  • Comment
Comments (3)
Post a Comment »
  • 1

    Wow, Megan's article should be sent to the entire Congress and our current President. It should be plastered on the front page of the NYT.

  • 2

    While I understand Megan's point that DC could screw up a bailout and there is no doubt much truth in what she says. However, I went to read the whole post and I am really puzzled by some of her anger, especially at Tesla. What I don't understand is why she is so upset about this company. As far as I know, it is not affiliated with the Big 3 automakers and is a company based on a free market business model that has chosen a strategy of building a luxury sports car for capitalism-based strategic reasons. Tesla knows that it has to incur very high initial costs and is only at a "proof of concept" stage in development. Thus, Tesla cannot effectively build an "affordable" mass produced car currently and may not be able to for years. The process of getting the car made has been long, difficult, and full of setbacks, however, that does not mean that the effort has been wasted by any means because it actually provides that company with hands-on experience in building an electric car and the new fleet will provide real world performance feed back. Maybe she's mostly angry that she cannot afford to buy one, but she wasn't the initial target market for Tesla and she's not being forced by "Big Government" to buy one. Her other angry rant is that urbanites have no place to plug-in on the street. While this might be true, I'm sure we can find her some examples of EV owning urbanites that have come up with creative ways of resolving the issue (and I'm sure that they won't involve massive government handouts of money.) Further, our electric grid (although in poor shape) has been built out quite well and it is relatively easy to build charging stations. As more EV's come to market, I would think it would be a future profit making venture to have a street level charging
    station that would operate something like parking meters. Build outs of this sort would be far cheaper and easier to manage than creating, shipping, storing, and using hydrogen. But that said, the lesson I learn from our national reliance on strictly gasoline based vehicles is that it is best to encourage all kinds of new technologies because you don't know when reliance on one sole fuel source will lead you to a dead end.
    -
    Lastly, this contention that "none of them have the faintest idea how to build [a green car]" is not true. I cannot defend GM's business decisions over the last 20 years, nor am I going to try. However, GM did built the EV1 and it was used in CA and a few other states. Ford also produced an EV that was a truck. These projects failed for a variety of reasons, but the fact that the companies have attempted EV's in the past means that the do at least have a "faint" clue. I will leave it to engineers to discuss the true technological merits of their efforts, but from what I have read and heard what GM is doing with battery technology on the Volt project is real and significant. I do not know in great detail the status of GM's hydrogen project, but I know that at one time I saw in interview in which the CEO talked about all kinds of non-auto motors and products that they were developing to run on hydrogen.
    -
    The main problem with these technologies is that they have taken a great deal of time, effort, and money. The issues confronting a green car ironically run parallel to the issues to oil exploration and development. What I mean is that as the price of gasoline has gone up, public outcry for oil exploration and new drilling as well as the development of green technologies goes up. As the price of gasoline goes down, the public interest wanes and the money to develop both oil reserves and green technologies dries up. This is a very real shortcoming of our political process and our "free" market economy that may very well make all the hand-wringing moot as we return to the 70's and face gas shortages and have no viable alternative fuel.

    Guess I can rant as well as the rest of 'em.

  • 3

    SUBPRIME THANKSGIVING
    (Arlo Guthrie--Alice's Restaurant)
    William Banzai7

    This song is called Hank's Restaurant, and it's about Hank Paulson, and his
    restaurant, but Hank's Restaurant is not the name of the restaurant,
    that's just the name of the song, and that's why I called the song Hank's
    Restaurant.

    You can get anything you want at Hank's Bailout Restaurant
    You can get anything you want at Hank's Bailout Restaurant
    Walk right in if you're a tanked bank
    Just a half a mile from the Federal Reserve Bank
    You can get anything you want at Hank's Bailout Restaurant

    Now it all started Thanksgiving Day 2008- when my friend Warren and I went up to
    visit Hank at the restaurant, but Hank doesn't sit in the there much these days, he spends alot of his time together with a fella named Blankfein
    over at AIG's office, in a big corporate tower downtown. And being in a tower like that, they got a lot of
    room downstairs. Havin' all that room, they decided that they didn't
    have to take out their subprime garbage for a long time.

    We got over there, we found all the toxic subprime garbage in there, and we decided it'd be
    a friendly gesture for us to take the garbage down to the non-performing asset dump. So
    Warren and I took the 700 billion tons of subprime garbage, put it in the back of a red Humvee
    stretch limo, including CDSs and CDOs and other implements of mass financial destruction and headed
    on toward the non-performing asset dump.

    Well we got there and there was a big sign and a chain across across the
    dump saying, "No Dumping on Thanksgiving." And we had never heard of a dump
    closed on Thanksgiving before, and with tears in our eyes we drove off
    into the sunset looking for another place to put the securitized financial garbage.

    We didn't find one. Until we came to a side road, and off the side of the
    side road there was another fifteen foot hole and at the bottom of the
    hole there was a pile of Dot.com garbage, prospectuses, analyst reports etc. And we decided that one big pile
    of financial garbage is better than two little piles, and rather than bring that one up we
    decided to throw our's down.

    That's what we did, and drove back to the restaurant, had a Thanksgiving
    dinner that couldn't be beat, went to sleep and didn't get up until the
    next morning, when we got a phone call from FBI Director Mueller. He said, "Kid,
    we found your name on an offering circular at the bottom of a half a ton of
    securitization garbage, and just wanted to know if you had any information about it." And
    I said, "Yes, sir, Mr. Director, I cannot tell a lie, I put that circular
    under that garbage."

    After speaking to Director Mueller for about fourty-five minutes on the telephone we
    finally arrived at the truth of the matter and said that we had to go down
    and pick up the subprime garbage, and also had to go down and speak to him at the
    NY Branch office. So we got in the red Humvee Limo with the
    CDOs and CDSs and implements of financial destruction and headed on toward the FBI's office.

    Now friends, there was only one or two things that the Director coulda done at
    the FBI's office, and the first was he could have given us a medal for
    being so brave and honest on the telephone, which wasn't very likely, and
    we didn't expect it, and the other thing was he could have bawled us out
    and told us never to be see driving toxic asset backed garbage around the vicinity of Wall Street again,
    which is what we expected, but when we got to the FBI's office
    there was a third possibility that we hadn't even counted upon, and we was
    both immediately arrested. Handcuffed. And I said Mr. Mueller sir, I don't think I
    can pick up the garbage with these handcuffs on." He said, "Shut up, kid.
    Get in the back of the car."

    And that's what we did, sat in the back of the car and drove to the
    quote Scene of the Crime unquote. I want tell you about Wall Street, where this happened here, they got a few Federal regulators, the SEC, the CFTC, the FDIC and the FBI, but when we got to the
    Scene of the Crime there was all kinds of state and federal regulators running around, this
    being the biggest financial crime of the last five years, and everybody wanted to
    get in the newspaper story about it. And the FBI, they was using up all kinds of
    equipment that they had hanging around the anti terrorism bureau.
    They was taking plaster tire tracks, finger prints, dog smelling prints, and
    they took twenty seven eight-by-ten color glossy photographs with circles
    and arrows and a paragraph on the back of each one explaining what each
    one was to be used as evidence against us. Took pictures of the approach,
    the getaway, the northwest corner the southwest corner and that's not to
    mention the aerial photography.

    After the ordeal, we went back to the jail. Director Mueller said he was going to put
    us in the cell. Said, "Kid, I'm going to put you in the cell, I want your
    wallet and your belt." And I said, "I can understand you wanting my
    wallet so I don't have any money to spend in the cell, but what do you
    want my belt for?" And he said, "Kid, we don't want any hangings." I
    said, "did you think I was going to hang myself for subprime fraud?"
    Mueller said he was making sure, and friends Director Mueller was, cause he took out the
    toilet seat so I couldn't hit myself over the head and drown, and he took
    out the toilet paper so I couldn't bend the bars roll out the - roll the
    toilet paper out the window, slide down the roll and have an escape. The FBI Director
    was making sure, and it was about four or five hours later that Hank
    (remember Hank? It's a song about Hank), came by and with a few
    nasty words to Mueller on the side, Bailed us out using Federal taxpayer money, and we went back
    to the restaurant, had a another Thanksgiving dinner that couldn't be beat.

    After dinner a nice fella named Pandit showed up with some tasty cookies. He seemed
    plenty nervous and had a hard time communicating with us ordinary folks....

    You can get anything you want, at Hank's Bailout Restaurant
    You can get anything you want, at Hank's Bailout Restaurant
    Walk right in if you're a tanked bank
    Just a half a mile from the Federal Reserve Bank
    You can get anything you want, at Hank's Bailout Restaurant

Add Your Comment:

You must be logged in to post a comment.
The Curious Capitalist Daily E-mail

Get e-mail updates from TIME's The Curious Capitalist in your inbox and never miss a day.

Quotes of the Day »

Get & Share
Swiss Justice Ministry spokesman FOLCO GALLI, on the decision to place director Roman Polanski under house arrest at his Alpine chalet. Swiss authorities say they won't appeal against a ruling granting bail

Stay Connected with TIME.com