Submitted by Commissioners John A. Gose,

Edith H. Jones and James I. Shepard

The value of the Commission's report lies not only in the proposals which were adopted but in the hundreds of pages of supporting text, as well. Given that the report may stand as a paradigm for the creation of not only future legislation, but scholarly debate and judicial guidance for years to come, it is essential that the text truly reflects the findings and conclusions of the Commission. In many ways, the supporting text, which will be seen as a resource for guidance in understanding the Commission's motivations and goals, is nearly of equal importance with the proposals themselves. If the text misstates the significance of the events that led to the adoption of any particular proposal those that read and rely on the report as the only written statement of what the Commission recommends will be mislead; the presentations of the Commission's findings and conclusions can easily become a vehicle for creating false impressions. The process by which the report and supporting text were created is therefore of extreme importance. If the process fails to honor the integrity of the Commission's work the report itself will fail and the public will be deceived.

To that end, therefore, in reading the report the following must be clearly understood:

1. While the individual proposals were debated and adopted over the preceding two years, the draft versions of the report, containing the proposals and their supporting text now appearing in the report, for the most part, were not given to the Commissioners for their review and comments until shortly before the deadline for submission of dissents; the vast bulk of the hundreds of pages of text was not delivered to the Commissioners until two or three days before. Within a few days of the submission of our dissents we had never seen the consumer and business bankruptcy chapters, two of the most significant sections of our report; the list of proposed items to be included in the appendix did not arrive until the day the dissents were due.
2. The drafts provided were constantly augmented and substantially changed with each version; the changes were not identified as would be done with normal drafting techniques, except occasionally; the Consumer Bankruptcy and General Chapter 11 sections grew by approximately 80 pages between drafts, which, given the limited amount of time available, rendered their review almost impossible. Thus, those Commissioners writing dissents were required to chase a moving target; it was extremely difficult to identify, analyze and respond to new material as each iteration arrived - it was nearly impossible to write a dissent without knowing what the report contained.
3. Largely created by the reporter, the report contains many interpretations and characterizations which often do not reflect the Commission's work. The report, for instance, does not reveal that the Commission never voted to endorse any theory for the increase in consumer bankruptcy filings and, in fac, split five to four on most consumer recommendations; or that meaningful debate on many significant issues was very limited or nonexistent - the "Consumer Framework" was presented as a "take-it-or-leave-it" package, with no opportunity to identify discrete problems and proposed solutions.
4. The report fails to reflect the Commission's vote on each proposal, which on many critical issues was divided five to four; the report does not indicate that the Commissioners' views on many issues were deeply polarized and that there was little attempt to create a consensus. There is no indication of the depth and nature of this chasm as to the Commissioners' philosophical and practical positions in regard to the consumer bankruptcy crisis and its potential solutions. The statement that certain proposals maintain "balance" within the system or that certain proposals "enhance the integrity" of the system are nothing more than value judgements, personal opinions intended to create a more favorable reception for the views expressed; "balance," like beauty, is entirely in the mind of the beholder.
5. The Kowalewski report, which has been made a part of the appendix, is identified in the appendix table of contents as a report of the Congressional Budget Office. While the cover letter accompanying the report is printed on Congressional Budget Office letterhead stationary, the analysis and conclusions are clearly Mr. Kowalewski's and not those of the CBO. The inclusion of Mr. Kowalewski's report in the appendix when it has not been studied or discussed by the Commission at any of its proceedings is entirely gratuitous - this is just another skirmish in the reporter's fight with the credit card industry. While we have no strong feelings for the credit card industry this oleaginous approach is simply not fair.