In legislating the pending bankruptcy "reform," Congress has made many of the key decisions behind closed doors. In fact, the process has been characterized as a congressional effort to pass a "stealth bankruptcy bill." This secrecy brings into question the democratic nature of congressional deliberation. When the Framers designed the legislative branch, open debate was envisioned as the rule, not the exception. Unfortunately, Congress has adopted a secretive, approach to pushing through recent bankruptcy legislation. In a sharp departure from the decades-long congressional approach to bankruptcy legislation, "Congress stopped seeking expert advice and instead turned to special interest lobbyists…” Thus, Congress utilized the cover of secrecy to boldly tailor the bankruptcy laws to serve special interests. Consequently, "theuse of the term 'bankruptcy reform' is considered an oxymoron to most organizations of bankruptcy professionals .... Virtually every group of bankruptcy professionals, regardless of the constituency represented, opposed both the substance of the legislation and the process ... taken by Congress." Recent efforts to alter the bankruptcy system under the cover of secrecy have received harsh criticism. Proponents of bankruptcy reform are so intent upon enacting legislation favoring special interests that they have taken the unprecedented step of attempting to enact the legislation under the guise of a completely unrelated, already-enacted bill. These tactics of congressional secrecy are contrary to the process of open, reasoned, and deliberate decision making that is a cornerstone of American democracy. This secrecy is wholly inconsistent with the process of public deliberation which the Founders envisioned.
William T. Bodoh and Lawrence P. Dempsey,
Bankruptcy Reform: An Orderly Development of Public Policy ,
49 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol49/iss2/3