Obama stands credit markets on their head in Chrysler deal

Bill Frezza:

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According to U.S. bankruptcy code, secured creditors - that is lenders who have a contractual security interest or claim to specific collateral - have to be paid before unsecured creditors. Unsecured creditors' claims are prioritized according to explicit rules defined by law. With the exception of short-term payments approved by a bankruptcy judge to keep a company running during the reorganization process, each priority level has a right to be paid in full before creditors with the next lowest priority get a dime. That is why secured debt can be had at a lower interest rate than unsecured debt. In fact, that is why troubled companies have any ability at all to raise money. Credit flows because everyone knows the rules of the game, even in bankruptcy.

Well, at least they used to.

The system is not supposed to deliver equal outcomes or demand equal sacrifice. If it did money could only be borrowed at the highest rates of interest, if at all. Under the law, payment priorities can only be modified if all debtors agree. The ability to hold out and force a company into bankruptcy court is baked into the price of a loan or the discount at which bonds trade.

In Chrysler’s case the TARP-backed lenders – that is, banks-too-big-to-fail now living on the dole – chose to kowtow to the executive branch. What they “sacrificed” was the economic interests of their shareholders in favor of the political interests of their management. The non TARP-backed lenders, in this case a handful of hedge funds trying to protect the pension funds, university endowments, and insurance companies that invested in them, balked at getting lower consideration for their secured debt than the UAW is getting for its unsecured obligations. Hence, a trip to court and a tongue lashing by the president.

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Why would anyone lend money to heavily unionized companies knowing that if things went wrong, the president and his men could trash their security interests by executive decree, hold them up to public vilification, and subject them to future retribution by regulators?

Why would anyone buy the shares of TARP-backed banks or invest alongside them knowing that their executives have proven their willingness to sacrifice shareholders’ interests and throw co-investors under the bus any time the president snaps his fingers?

Why would foreigners buy the distressed debt of American companies knowing that this debt cannot be secured by law but only by political clout?

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How is private credit supposed to “start flowing again” if the United States of America morphs into a caudillo-run kleptocracy whose explicit policy is to “empower the workers,” chasing ever higher poll numbers by demonizing the very people whose job it is to provide credit?

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I get the feeling that Obama skipped the secured transactions course at Harvard Law and probably flunked that portion of the bar exam. It appears he was schooled in fascist economics somewhere along the way where business has its transactions dictated by a central government rather than the rule of law. It is easy to see that Obama has released him empathy glans and they are all running toward the UAW labor thugs who have ruined these business to begin with.

Frezza is right on the law and on the economic consequences of ignoring it. Hopeful an independent Bankruptcy judge will set Obama straight.

Ed Morrissey reports on a filing by the secured creditors that argues that the administration is in violation of the 5th Amendment taking clause. It appears to have merit.