On Voting, What Did The Founders Say?

Alexander Hamilton, in Federalist Paper No. 59, acknowledged in Article I, Section IV of the U.S. Constitution that the authority to determine the times, places and manner of elections resided with the state legislatures, yet Congress also possessed the power to alter state election law. According to Hamilton, this ultimate authority over state election law could be exercised by the federal government “whenever extraordinary circumstances might render that interposition necessary to its safety.” The reason for placing the initial power in the states was not the traditional rational of promoting valid experimentation to encourage developments in both state and federal law. Rather, as noted by constitutional law scholar Joseph Story in 1833 in his Commentaries on the Constitution of the United States, there was a concern that Congress, or a few Congresspersons from dominant states, might use the ultimate power of the federal government to enact unreasonable federal election laws favoring certain persons.

According to Hamilton and Story, the theory underlying the division of power is the necessity that every government possess its own mode of preservation. State and local governments are diverse, diffuse and can result in experimental, regulatable and accountable methods of election. However, Article I, Section IV of the U.S. Constitution expressly grants the power of preservation of the Union to the federal government. Story called this a “superintending power” over state election law.

We must ask if the incident of January 6^th in the United States with the storming of the U.S. Capitol Building indicates such an extraordinary circumstance. Is a return to Jim Crow such a circumstance? In Hamilton’s opinion, elections are left to “local administrations … in the ordinary cases, and when no improper views prevail ….” The United States has recently experienced uprisings and protests by persons of all races, colors, creeds, nationalities, religions and sexual orientations. Is there a need for election laws that would guarantee equality of representation with uniform voter qualifications throughout the Union?

The balance of power between the states and federal government need not be wholly undone by a constitutional amendment. Rather, we should place first the principle of the preservation of fair, equitable, just and honest government. Discretionary power over elections may be abused wherever it resides. And, historically, it has been abused at both the state and federal levels. Once, rivalry and ambition among the states justified the power of state election law. Now, national and international commerce support national standards of elections and the inclusion of all eligible voters in the election process.

Lori Gayle Nuckolls

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Is the United States of America under Siege?

Following the storming of the United States Capitol on January 6, 2021, in the ordinary course of legislative business, one must ask the place of this event in history. To what does it give rise, where does it lead America, and what does it indicate for its citizenry?

One could argue that there is too much hostility within the American majority, too much dissension, for America to continue with a republican form of government, for the United States Constitution to remain. A democratic military relies upon patriotism and a caring respect for government. Its military is derived from the majority population. If the majority no longer believes in justice and freedom under the U.S. Constitution, the military will not possess the moral force to protect the government from threats both at home and abroad.

The storming of the American Capitol was a rebellion, a failed revolution. The cause cannot be deemed that of madness or irrationality. Rather, it must be acknowledged to be an expression of a competing ideology. For, regardless of the methodology of the acts of violence against a government, such acts embody and express an ideology.

Consequently, diplomacy is required to reach agreement and compromise, to heal a country and the world. Denial of the existence of the beliefs and positions of the rebelling entity begets further uprisings and intermittent rebellion. An inclusive truce is necessary. Moreover, in the world’s history, uprisings, rebellions and revolutions, including the American Revolution, have long been subjected to the ad hominem of madness and irrationality, without their being evidence of proof other than reference to acts embodying a competing ideology.

Why Did the Attempted Revolution Occur?

Throughout the world’s existence, history’s development and progress has exhibited great hardship and horror. The storming of the American Capitol could be an example of the development of the world by means of such hardship and horror. Many deem this to be development through the reason and spirit in history, the Hegelian dialectic. According to Georg Wilhelm Friedrich Hegel, in the world there is the existence of the status quo; the critique or destruction of the status quo; and then the collective synthesis of a new, positive result in history. One would attribute to this phenomenon, the slow but developing and evolving state of human progress.

In some sense, Hegel deemed this the actualization of the known and preexisting universe and cosmos by the spirit of history. Yet, those living in each intermittent era of unknowing naivete ask why the negative, destructive critique of the status quo is necessary to evolve and develop, regardless of the result produced. Does it have to do with human nature and the mind of man? Does reasoned critique possess limits necessitating a reliance upon negative destruction? If a destructive negation is not necessary, perhaps society should strive to divert destructive animosity toward reasoned discussion.

In the thought of Hegel, we ask what is the positive result of the negative undoing and destruction of the U.S. Capitol. Does the storming indicate that, in addition to criminal penalties, some form of political reform will or should result? Could the rebellion give rise to either the creation of third and or fourth political parties, or a parliamentary form of government?

If third parties are cultivated, ideology through rebellion could express itself lawfully in the form of party platforms and representatives in elected office. If transition into a parliamentarian form of government, the United States would no longer rely upon a separately elected executive with a greater concentration of power in the form of a right of veto over the legislative body. Parliamentary government would require a significant reform of American government. Yet, rebellion and attempted revolution are significant acts.

There must be a humane and positive response by government and society to the rebellion, regardless of what one believes to be its cause. Rebels seek an answer to their demands. They seek their definition of justice. We cannot loft above them an ideal, utopian definition of justice which has been long deemed beyond reach by the world’s greatest elected officials, academics and philosophers. We must seek and strive toward a viable definition of justice: the right of all people to political participation through peaceful expression.

If America abided the principles and text of the Constitution, specifically, and rule of law, generally, differences and disagreements would be settled in the context of traditional political debate and law making. The United States must maintain the quality of its existence as a representative democracy governed by a natural aristocracy. It must act according to law and include the concerns and needs of all within the course of day-to-day debate. Ignoring any segment of the public results in an emotional response such as rebellion. Providing justice to all will avoid such in the future.

America should not attempt to avoid Hegelian peaceful critiques of the status quo, for debate and critique are the basis of the American political system. But, Americans must channel critique within structural modes of expression. From the ordinary member of the public to those occupying the highest office in the land, political participation and the ability to self-govern combine to avoid the recent cathartic event witnessed in the storming of the American Capitol. For, no rebellion or revolt takes form in short order. No one person could be responsible for persuading so many to act against their country. Revolt and rebellion result from a long felt disheartening of many people with their country. The only remedy is to provide a sense of enfranchisement and receptive, meritocratic government.

As J. Hector St. John de Crèvecoeur stated: from soil values grow. American democracy is premised upon the dignity of the individual and respect for all. A storming of the bastion of the people’s government indicates that an overwhelming number of citizens require that government be restructured to meet their needs. The United States needs to bring democracy closer to the soil of America.

Third Parties May Be an Answer to America’s Current Debate

Third parties are often factions that leave major parties over certain issues. America must discern the grievances possessed by America’s rebels. They ostensibly are supporters of former President Donald Trump. However, such violence coalesces and surrounds more than one person. It evolves over time and involves a plentitude of issues. The Capitol revolt was not the temperance party, the women’s suffrage movement or Teddy Roosevelt’s Bull Moose party. These ideological expressions were serious and longstanding. Yet, they did not reach the level of violence as the recent storming of the American Capitol. Consequently, the deep seated, violence inducing concerns and grievances of the Capitol rebels rely on more than what might be offered by one person. For, in expressing their grievances, they sought to destroy the very government former President Trump represents.

Permanent realignment of the two major political parties in America into third parties may require some phenomenon such as a rebellion or near revolution. Broad based, grassroot rebellion expressed in the form of movements such as the Capitol rebels could coalesce to form a third party. Some of the rebels could be akin and ideologically similar to the Libertarian party which acknowledges an expression of faction and inter-party strife within the two major parties in America, with the Libertarian party combining fundamental American ideals with conservative economics.

Despite the dramatic events of January 6^th, would the Capitol rebels fail as a third party as have most others in American history? The two major parties in America could adopt the ideological grievances and positions of the Capitol rebels and thus lessen any incentive to form new parties. Yet, the Capitol rebels may be so long underrepresented in politics and government that they cannot avail themselves of traditional forms of political participation that a political party offers. Perhaps, for the sake of democracy and diplomacy, citizens who agree and are sympathetic with the positions of the Capitol rebels should lead a new party to which the rebels could belong. This would transcend typical obstacles to formation of a third party such as inadequate financial resources and local and state support. And, a greater increase in popular participation in politics would benefit the emergence of a new party.

The Capitol Rebels Are Due the Benefits of Political Association

Regardless of punitive sanction, the civil self-government of the Capitol rebels should be cultivated. Political parties provide an opportunity for self-expression and civil debate in pursuit of principles and public policy goals. Parties provide a didactic function in educating their members in the art of civics and government. Most importantly, parties foster trust among members by encouraging members to self-govern in a trustworthy manner. Political parties permit representation in a republican form of government. Political parties diffuse the tyrannous majority. This is the guidance the Capitol rebels need.

Political parties embrace general philosophies and thus permit inclusion of as many people as possible. As a result, over time America has evolved into a two-party system. The party of traditional moral values and business interests is the Republican, and the party supporting working class labor and minorities is the Democratic. To transcend this duopoly, third parties must draft a broad-based philosophy that is not a single-issue attraction. In what way do the two major parties not offer ideals, principles and ideology appealing to the Capitol rebels so that a third party would not be a viable alternative?

Is the American experiment in democracy more democratic, more fair and more just with two, adverse political parties willing to expand and be more inclusive? To return to sound and civil government, America must enumerate the possible philosophical bases for third parties, including the Capitol rebels.

In what way do the Capitol rebels represent diversity within the United States? Are they urban and rural, of higher education and not? What are their unifying principles and concerns? In what way did the ideology of Donald Trump find expression in the rebellion of January 6^th? Could the Capitol rebels support the theories of meritocracy and natural aristocracy upon which the United States is founded? Promoting a third-party expression of fascist rebellion could be avoided in a free democracy. Listening to and incorporating itinerant concerns into the political structure would be preferable to forcing violent forms of expression. Third parties possess grievances often expressed through violence when the subject of structural exclusion.

Supporters of former President Donald Trump indicate that they are considering forming a third “Patriot Party.” This demonstrates the perceived need for structuring the public support he possesses into a viable form of expression. Whether one considers Donald Trump to be a “cult of personality” leader or not, he cannot utilize his support unless it assumes effective form. Also, he must create a generational legacy amassed around his positions, opinions and ideology that transcends his being deemed a mere one election figurehead.

Perhaps, the Capitol rebels will create a fourth party. Another grassroots movement may become as entrenched and as well-known as the Patriot Party. Would such a fourth party readily follow on the coattails of the Patriot Party if it quickly announced its existence?

Former President Donald Trump holds grassroot Republican support and must maintain its trust. He must do so by cultivating civil participation. A rebellion or attempted coup is an indication that the cultural voluntary servitudes of entertainment and athletics are no longer an effective panacea. They are enjoyed but do not support or supplant reasoned self-government. Rebellion indicates the cry for a remedy, and the rebels themselves have no answer. Exchanging attributions and projections of blame by governing officials will only result in continued public negativity. People must be encouraged from a grassroots level to engage in traditional political participation.

Representative Democracy Is the Answer

As a republican form of government in the modern era, America is a great, expansive experiment. In merely three hundred years, it has demonstrated a slow but effective development toward justice, fairness, equality and inclusion. A small yet painfully effective rebellion cannot undermine three hundred years of history. Rather, violent uprisings indicate a need for even further progressive democracy.

A democracy must be premised upon trust held by the people in each other, among themselves as they engage in self-government, as well as trust evoked by the government between it and its citizenry. A political party must similarly remain true to its principles and party platform. Promises unkept are hypocrisy. In the recent era of duopoly, no competition exists between the parties. They each have turf dominated by party leadership and no incentive to honor promises made each election. As a result, elections flip flop with exchanges in elected figureheads with no real change in power possessed.

As a result, the U.S. Capitol was stormed by the partyless and unrepresented. They are ostensibly amassed by and the adherents of Donald Trump. But, do they know anything more than that he sought their support. What specifically do they stand for given that they sought to destroy the government they sought for him to lead? The only answer for the rebels is their participation in the American government in some structured form. And, this means participation in the form of a political party, one currently existing or a new, third party. Or, do they remain American citizens who feel that they will always be outside the bounds of government, always unrepresented.

Lori Gayle Nuckolls

Judicial Determination of City Council Suspensions is a Good Thing

City of Cincinnati Council Member Betsy Sundermann has offered an amendment to the City Charter which would permit the Cincinnati City Council to sanction council members for alleged criminal activity. The proposed amendment is a comprehensive and extensive exercise of Home Rule. The amendment contends that the current disciplinary procedure is lengthy and complex, and that the proposed Charter amendment will provide an efficient and expedient method for removing council members. However, the proposed amendment overlooks several fundamental democratic principles.

The Charter amendment would eliminate the current right of voters to sue a council member for removal from office when the council member may have received illegal compensation for official duties, been interested in the profits of a city contract, have acted in a capacity in addition to being a council member with respect to work of the city, or been guilty of misfeasance or malfeasance in office. The proposed Charter amendment replaces this procedure with one that includes several potential sources of political impropriety.

The amendment permits City Council to suspend one of its own members under a state or federal indictment or charge of a crime of moral turpitude by vote of Council. A council member facing suspension is subject to the unfettered discretion of City Council, for the proposed procedure does not offer a standard governing Council’s suspension power other than the alleged misconduct of the council member.

Rather, the amendment permits a suspension to be determined by a mere majority vote of Council as if it were any other ordinary legislative act of the representative body. Matters such as suspension from office should be subject to a standard striving toward nonpartisanship. Since suspensions are not mandatory or automatic, the disciplinary procedure should seek to prevent the possibility that a suspension may be based upon reasons other than the alleged misconduct. By way of example, in the instance of the United States Congress, each House may expel a member only upon a two-thirds vote. Similarly, the Senate may convict an executive or judicial official on trial in the impeachment process only upon a two-thirds vote. Council must even itself admit that important, extraordinary and extreme acts such as the Charter amendment by emergency ordinance being used to initiate this disciplinary reform may only be approved upon a two-thirds vote of Council. Even the present authority given to municipalities by Ohio Revised Code Section 731.45 to expel one of its own members for disorderly conduct requires a two-thirds vote. Yet, Council asks for the power to oust one of its own by only a majority vote.

The two-thirds, supermajority standard for important measures was chosen historically for two reasons. First, measures which transcend and supplant the will of the people, such as suspension of an elected official, should require more than an ordinary exercise of the power of the representatives. And, second, a supermajority places acts initiated for mere political objectives beyond the reach of collaborative faction. Suspension should not be a political matter.

In addition to the probate court removal power the Charter amendment seeks to replace, the primary disciplinary method under Ohio law is also judicial. It provides that suspension from office before a council member is proven guilty undermines our democracy unless done by the highest court in the state with the assistance of a lower court in filling any vacancy. This is closer to an innocent until proven guilty standard.

This primary disciplinary procedure only permits a council member’s suspension from office if the council member is charged with a felony under state or federal law and the alleged crime relates to performance of the council member’s official duties or is adverse to the rights and interests of the public at large. It also requires participation by two branches of Ohio government, the Attorney General or the Council’s county prosecuting attorney in the Executive Branch and the Supreme Court in the Judicial.

Under this method, the Attorney General or Council’s county prosecutor determines whether the alleged felonious conduct relates to the council member’s official duties or is otherwise adverse to the public. If, so the Attorney General or prosecutor informs the Chief Justice of the Supreme Court who then convenes a special commission of three retired justices or judges, one of the same political party as the council member in question. The special commission then makes a preliminary determination as to whether the council member’s conduct adversely affected the member’s office or the rights and interests of the public, and, consequently, whether the official should be suspended from office.

If the special commission finds that the allegedly illegal conduct does not pose a threat to the member’s office or the public interest, the council member is not suspended from office. If, instead, the special commission reaches a preliminary finding that the council member’s conduct does adversely affect the office or the public rights and interests and that the council member should be suspended from office, the council member is given an opportunity to appear before the special commission and contest the preliminary determination of suspension. The special commission makes a final determination after the meeting and the council member is suspended immediately if the special commission finds that the council member’s conduct was adverse to the office or the public’s rights or interests. The final determination of suspension by the special commission has the same force and effect as a court judgment. The council member may appeal the special commission’s finding to the Supreme Court. The official remains suspended until there is a reversal by the Supreme Court or the council member is found not guilty of the allegedly illegal conduct.

Judicial determination of suspension of a legislative official possesses the traditional “checks and balances” of dividing government to avoid abusive concentrations of power and to mitigate partisan exploitation. It seems unwise to replace a judicial determination of suspension with a procedure that could result in a partisan vote of the legislature within which the member in question sits.

One would hope that one motivation for the proposed Home Rule amendment is not to lessen the burden on the judicial docket, generally, and with respect to suspension cases, specifically. We need a preventative solution to the problem of corruption in government, greater care in local government, not merely a transfer of power for remedying corruption.

Lori Gayle Nuckolls

Judicial Determination of City Council Suspensions is a Good Thing

Lori Gayle Nuckolls

The Modern Democracy and The American Common Law

How do we reconcile traditional English common law principles of certainty and predictability in the law with American principles of fair and just judicial review at law and equity? Our American system of three branches of separate powers accords with the adversarial legal system of seeking impartial and objective judicial opinions. Neither the President nor the legislature imparts undue influence over the judiciary.

May we continue to ensure this unique type of good government in light of the size of the American population in current times resulting from, among many causes: modern technology and an increase in residential land ownership? With greater access to education and information throughout the states and territories, the informal and unintended influence of the majority upon government is much greater than at the time of the adoption of the U.S. Constitution.

This debate requires a renewed inquiry into the dual purposes of American law in both resolving adversarial conflicts and in guaranteeing that the law achieves agreed upon social ends. Our community incrementally overtime determines our “ideas” and our “truths.”

In this way, our Judge-made law fills the niches left by statute and executive policy (or one might say agency regulation). The common law in America is derived from the public. From this our judges glean.

Society and Government?

How do we conquer the less than deserved value attributed to certain American professions, e.g., attorneys, physicians, and academics? What is the role of government and what is the role of the marketplace economy? Fair and just compensation for the value of the services provided is necessary to achieve American principles of a democratic society and government. We cannot believe that this absence of economic efficiency and economic equilibrium results from a marketplace which will eventually find its own price. Perhaps, America should enact mandatory price-fixing and salary allocation for the learned professions to reflect costs and expenses incurred, both in academic preparation and as practitioners. Professionals in government and the private sector represent a level of marketplace value that should be accorded value coextensive with that of business executives.

Democratic capitalism requires that corporate America self-govern in order to avoid governmental regulation, deemed more burdensome than innovation. We must accord market value and provide economic incentive to encourage the goods and services upon which society relies, our life necessities. Government is our primary necessity, democratic government. Without competitive economics, an economic barrier-to-entry exists and ordinary Americans cannot afford to serve as managers of our democratic republic.

Structural reform should begin with an increase in the salaries of governmental officials and learned professionals to equal that of mid-level, international corporate executives. For, the degree of productivity and quality of these two sectors of the economy could be no less than equal. In doing this, Americans, young and old, will be encouraged to more greatly participate in society and government. Productivity and achievement would bring value to the business community, governmental subdivisions, and academic institutions.

This is justice and fairness in distributive economics. Competitive markets are guided by government toward equilibrium and this requires greater guidance in professional compensation.

Lori Gayle Nuckolls, Esq.

Economic Equality in America

Some logic and rationality must be accorded to an aged old portion of the American economy that eventually equated Hollywood celebrities and major league professional ball players with millionaire railroad tycoons and corporate barons. Initially, the musicians, singers, actors, actresses, as well as players of baseball, basketball, football and hockey, were the heroes of blue-collar, working class America. They were those the hourly wage earner and family could look up to when education, books, newspapers and magazines were as beyond reach as a college education. Today, vocational and four-year colleges extend coast-to-coast. And, cable television and the Internet bring news regarding the facts and events of America and the world to all, regardless of level of education.

So, why the socio-economic divide between celebrities and our governmental, private and public leaders and academics? Is equal treatment something their America cannot afford?

America requires that economic power be, in formation and distribution, determined by performance and quality, before nation-state, gender and or other attributes if the economy is to be maintained. For performance and quality weigh most greatly in providing the work product upon which society depends. Government, law and regulation come before and prior to materialism and wealth. For, wealth cannot be obtained, utilized, regulated or maintained without a well-regulated representative democracy.

No sole ruler, neither the benevolent dictator nor monarch, can provide an enjoyable sense of wealth and riches to the modern public. Rather, required is a distribution of wealth, monies, and funds, based upon contribution to maintaining meritocratic access to government, private and public social institutions and organizations. For, democracy and its premise upon justice and fairness applies throughout society from top to bottom, however defined.

Rules honoring the distribution of compensation and attribution of value must be as equally enforceable and enforced as rules governing participation. For, wealth as evidenced by a tenderable coin of a sovereign realm has no value without acquiescence and deference by each individual to the rules of the nation. Excessive disparity cannot logically or reasonably exist at the expense of governing officials and academics who provide a greater source relied upon within the Union.

Lori Gayle Nuckolls, Esq.

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Economic Rights: the Basis of Freedom

Participatory democracy is something in which we should all believe. Humans began as “hunters and gathers,” roaming alone in a hostile environment. As savages, we imposed an economy upon our coming together to trade fruits, berries, pelts and meats. Our economy produces the culture we share. America’s economy today is complex and global. Yet, we bargain still one human being with another. We share a common currency. Yet, we meet in an innumerable number of marketplaces. Still, we share in and exist in our one economy. Our neighborhoods should be thought the cornerstone of our economy.

The letter below is a comment I submitted today to several Federal agencies which collectively govern the American economy and its financial institutions.

Lori Gayle Nuckolls, Esq.
1237 Paddock Hills Avenue
Cincinnati, Ohio 45229-1219

Lori.Nuckolls@post.harvard.edu
lnuckoll@wellesley.edu
lorigaylenuckolls@cinci.rr.com
513-305-7902
September 16, 2018
Legislative and Regulatory Activities Division
Office of the Comptroller of the Currency 400 7th Street SW, Suite 3E–218
Washington, DC 20219
Sent via email to: VolckerReg.Comments@ occ.treas.gov, Re: Docket ID OCC–2018–0010

Ann E. Misback
Secretary
Board of Governors of the
Federal Reserve System
20th Street and Constitution Avenue NW
Washington, DC 20551
Sent via email to: regs.comments@ federalreserve.gov, Re: Docket No. R–1608; RIN 7100–AF 06

Robert E. Feldman
Executive Secretary
Attention: Comments/Legal ESS
Federal Deposit Insurance Corporation
550 17th Street NW
Washington, DC 20429
Sent via email to: comments@FDIC.gov, Re: RIN 3064–AE67

Brent J. Fields
Secretary
Securities and Exchange Commission
100 F Street NE
Washington, DC 20549–1090.
Sent via email to: rule-comments@ sec.gov, Re: File Number S7– 14–18

Christopher Kirkpatrick
Secretary
Commodity Futures Trading Commission
1155 21st Street NW
Washington, DC 20581.
Sent via email to: https://comments.cftc.gov, Re: RIN 3038–AE72

Re: Proposed Revisions to Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships with, Hedge Funds and Private Equity Funds

Dear Agency Administrators,

I write in reference to the proposed revision of the 2013 Volcker Rule, 12 C.F.R. Part 44, collectively by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve, the Federal Deposit Insurance Corporations, the Securities and Exchange Commission and the Commodity Futures Trading Commission, (individually, an ‘‘Agency,’’ and collectively, the ‘‘Agencies’’). Please consider this letter to be a formal submission of comments upon this proposed rule amendment in response to the Notice of proposed rulemaking published by your Agencies in the Federal Register, on July 17, 2018, 83 Fed. Reg. 33432. All citations herein to proposed amendments to the Code of Federal Regulations reference the proposed rules of the Comptroller of the Currency only and parallel citation to the proposed rules of all Agencies has not been attempted.

The Purpose of the Proposed Amendment of the Volcker Rule

The Agencies state that the rationale and premise for the amendment of the Volcker Rule is the learning and improvement of the largest banking entities since the 2013 amendment of the Bank Holding Company Act (the “BHC Act”) and the 2013 amendment to the Volcker Rule promulgated thereunder. In that, since 2013, the Agencies have found that the banking entities have engaged in detailed compliance under the 2013 BHC Volcker Rule. These requirements were intended to prevent great economic loss and distress from speculative, proprietary trading by the banking entities. (83 Fed. Reg. 33432, 33434 (July 17, 2018)).

The Agencies profess that the banking entities are more sophisticated, more prudent and consequently, less of a threat to the safety and soundness of the financial system if engaging in the purchase and sale of securities for their own account. Thus, the Agencies are amending the 2013 Volcker Rule to lessen the regulatory burden of reporting proprietary trading in order that compliance resources may be directed, instead, to profit making commercial activities. (83 Fed. Reg. 33432, 33434 (July 17, 2018)). The Agencies propose that the extent of reporting compliance required be determined by the monetary value of assets available to each individual banking entity for trading. The amendment creates three categories of banking entities with three different levels of reporting compliance. Id.

My comments are offered in request that the Agencies reflect upon the amendment of the Volcker Rule as it would govern those banking entities with no more than $1 billion in available trading assets, globally, including affiliates. This is the third and smallest designated tier of banking entities both within the American economy and international banking, subject to the proposed amendment of the Volcker Rule. The Agencies have designated these smallest of banking entities to be by definition those entities with ‘‘limited trading assets and liabilities.” (83 Fed. Reg. 33437 (July 17, 2018))(to be codified at 12 C.F.R. § 44.2(t)).

Creating a regulatory safe harbor, the amendment would exempt these smallest of banking entities, possibly for the first time, from all proprietary trading reporting compliance. Under the safe harbor, the small banking entities are not required to routinely file periodic proprietary trading reports with their respective agency. And, the small banking entities must only do so after notice of regulatory inquiry, and a request for evidence of compliance ex post facto. The amendment proposes to transfer the burden of proof as to proprietary regulatory compliance from the small entity to the Agency. (83 Fed. Reg. 33432, 33450 (July 17, 2018)).

The Agencies only grant this safe harbor to the small banking entities. This is done through the recognition by the Agencies of a “presumption of compliance.” (83 Fed. Reg. 33460 (July 17, 2018)(to be codified at 12 C.F.R. § 44.20(g)). No small banking entity would bear the burden of demonstrating affirmatively on a periodic basis that its proprietary trading is in due compliance with governing regulatory proscriptions. The safe harbor also exempts the small entity from all compliance requirements as to potential conflict of interests. (83 Fed. Reg. 33432, 33441 (July 17, 2018)). With respect to large and mid size banking entities, as the first and second tiers regulated, the amendment merely lessens and does not completely remove requirements as to proprietary trading reporting and conflict of interest. (83 Fed. Reg. 33432, 33441 (July 17, 2018)).

As the Notice states:
“[an] Agency may exercise its authority to rebut the presumption of compliance and require the banking entity to comply with the requirements of the rule applicable to banking entities that have moderate trading assets and liabilities. The purpose of this presumption of compliance would be to further reduce compliance costs for small and mid-size banks that either do not engage in the types of activities subject to section 13 of the BHC Act or engage in such activities only on a limited scale.”

83 Fed. Reg. 33432, 33437 (July 17, 2018). I support the stated objectives of the Agencies in formulating the amendments to the Volcker Rule in theory, yet I am uncertain and quite doubtful that these objectives will be fully achieved in practice without too great a compromise of the public interest.

As published in the Federal Register, with respect to the Volcker Rule:

“the Agencies are issuing this proposal … to amend the 2013 final [Volcker] rule [promulgated pursuant to section 13 of the Bank Holding Company Act, the “BHC Act”], in order to provide banking entities with greater clarity and certainty about what activities are prohibited and [the Agencies] seek to improve effective allocation of compliance resources where possible. The Agencies also believe that the modifications proposed herein would improve the ability of the Agencies to examine for, and make supervisory assessments regarding, compliance relative to the statute and the implementing rules. While section 13 of the BHC Act addresses certain risks related to proprietary trading and covered fund activities of banking entities, the Agencies note that the nature and business of banking entities involves other inherent risks, such as credit risk and general market risk. To that end, the Agencies have various tools, such as the regulatory capital rules of the Federal banking agencies and the comprehensive capital analysis and review framework of the [Federal Reserve] Board, to require banking entities to manage the risks associated with their activities. The Agencies believe that the proposed changes to the 2013 final rule would be consistent with safety and soundness and enable banking entities to implement appropriate risk management policies in light of the risks associated with the activities in which banking entities are permitted to engage under section 13.”

(83 Fed. Reg. 33432, 33434 (July 17, 2018))(emphasis added). The proposed Volcker Rule amendment proposes to balance the principles governing the substantive public rights granted by federal law to the banking entities with public concern for the safety and soundness of the American banking system. The public interest includes the wellbeing of the global macroeconomic economy of the United States in the world, as well as the wellbeing of the microeconomic economy of the small community depository institution in rural and provincial American geographic areas. To achieve the purpose of the proposed Volcker Rule, the Agencies must safeguard both the American economy and individual financial institutions.

The Rationale for the Volcker Rule

The Volcker Rule is founded upon the perceived need to prevent depository institutions and their defined affiliates from engaging in speculative, proprietary trading, deemed inherently too risk averse for the banking system. The Agencies offer a revision of compliance obligations incumbent upon banking entities engaged in certain proprietary trading activities which are expressly exempted from the general prohibitions by law. In doing so the Agencies would lessen the compliance and reporting requirements of banking entities concerning information regarding their proprietary trading activities
Still, the proposed amendment of the Volcker Rule remains conservative in that it would reinforce the time honored prohibitions begun with the Banking Act of 1933 (popularly known as the “Glass-Steagall Act”). (83 Fed. Reg. 33432, 33436 (July 17, 2018)).

The Agencies expressly state that the new rights as to proprietary trading reporting compliance must abide preexisting prohibitions regarding certain types of securities activity. Most importantly, no trading activity by a banking entity may: (1) create a conflict of interest between the banking entity and a customer; (2) directly or indirectly create a material exposure to a high-risk asset or high-risk management strategy; nor (3) create a threat to the safety or soundness to the banking entity or the United States. Id.

The Glass Steagall Act provided, in Sections 2 and 20, that a depository institution, or bank, could not affiliate in any manner with any corporation engaged primarily in the issue flotation, underwriting, public sale, or distribution of stocks, bonds or other securities. This created the existing barrier against conflict of interests by prohibiting an officer or director of a corporation involved in such securities activity from serving as a bank officer or director. Similarly, Sections 16 and 21 of the Glass Steagall Act created a reciprocal prohibition by preventing banks from issuing securities and by preventing underwriters from accepting deposits.

The Volcker Rule Amendment Lacks Guidance for Small Banking Entities

Even with the continued conservatism as to small banking entities, there is an absence of concern in both the Notice and the proposed regulation for the extent to which the amendment leaves small banking entities without the didactic guidance of federal regulation and compliance. The Agencies offer in explanation that the small banking entities do not in engage in proprietary trading to an extent necessary to merit the cost, time and effort required in complying with current regulation. And, foremost, little regulation of the smaller entities is indicated for the sake of the safety and soundness of the banking industry and American economy. The practices of small banking entities have not proved a source of economic risk and loss with systemic implications, as have, to a truly great extent, the commercial activities of the mid and larger size banking entities.

The safe harbor presumption of compliance provides small banking entities with reduced cost of compliance, for reasons that reducing their compliance burdens as well as reducing and more greatly systematizing compliance of the mid and larger size banking entities will promote profit and economic growth without risk. Yet, small banking entities more greatly defer to and rely upon agency expertise. Small entities have reduced access to the information gleaned from periodic compliance as well as the due diligence periodic compliance requires. The Agencies should supplement the newfound freedom from affirmative regulatory compliance, which the presumption of compliance provides, with greater oversight, guidance and public education as to the role and function of small banking entities in cities and their communities. The Agencies should transition the small banking entities, which with the larger entities merit the reduction in regulatory compliance, into the greater commercial activity and profit envisioned by the amendment.

Adhering to and satisfying the detailed requirements of regulations has over many years provided learning through compliance for the smaller entities beyond the information and management resources of larger entities, regardless of market. Such remains true for the larger banking entities. For example, the amendment requires the larger banking entities to self-tailor an in-house reporting system that would require analysis of regulation and the entity’s commercial activities, a six-pillar compliance program. (83 Fed. Reg. 33436 (2018)) (proposed to be codified at 12 C.F.R. § 44.20(a)) and (83 Fed. Reg. 33560-33563 (2018))(proposed to be codified at app. to 12 C.F.R. Part 44). The larger entities would be required to analyze: (1) written policies and procedures; (2) internal controls; (3) managerial structures; (4) independent compliance reviews; (5) training and recordkeeping; and (6) metrics reporting requirements. (83 Fed. Reg. 33432, 33439 (July 17, 2018)). The Agencies provide guidance to the larger entities in imposed regulatory obligations found in the Appendix as published in the Notice and proposed rule. Yet, if the small entities are expected to be guided by these provisions without obligation, the level of their regulatory burden is not minimized, yet presumably increased as the financial markets changes over time and they must self-regulate.

While small entities are not so anonymously amorphous as to require as extensive a review and reporting system as those much larger, the small entities will no longer conduct business under the same incentive for compliance as once before. Even without an inability to self-govern and delegate in-house measures for avoiding improper proprietary trading, the small banking entities should be encouraged to work promptly upon the effective date of the amendment with the business school centers of the institutions of higher education in their areas to provide a national view of compliance in the ordinary course of business, Thus, if a routine audit generates an Agency request for documentation of compliance over many years, the small entity may comply.

The Agencies might ask the effect of replacing a detailed and stringent regulatory burden with a “presumption of compliance” in a small banking entity. Perhaps the Agencies should encourage: (1) the development of prudent market sophistication among competitors and customers as well as (2) collaboration among the administrators and staff of small banking entities with members of institutions of higher education on topics of financial institution regulation and management. Promoting sound self-governance would permit the amendment with all requisite safety and soundness in even the most remote and smallest of regions in the United States. For, a small banking entity might well be inadvertently less than conservative and less risk averse than it should be in its investments if it believes its only risk of noncompliance is in the course of its ordinary periodic audit. Evolving standards governing the presumption of compliance during after-the-fact reviews permit agency discretion, yet without some transition small entities may not as readily self-regulate to produce a revision of the compliance standards being removed with changes in the marketplace and the effectiveness of the presumption.

Under the proposed Volcker Rule, small banking entities in small cities and towns may no longer rely upon the overarching policies of federal agencies to temper the autocratic micromanagement of CEOs and Officers. The Agencies give rise to an affirmative vision of the banking industry within an international context through regulation and compliance review. The presumption of compliance requires a new approach by the Agencies in guiding the business decisions of the small banking entities with similar agency efficiency. This should be neither difficult nor costly for small banking entities possessing worldwide assets of less than $1 billion constitute only 2% of America’s banking entities according to the Notice. 83 Fed. Reg. 33432, 33440-33441 (July 17, 2018).

In Conclusion

I suggest that the small banking entity not be abandoned by the regulators and that the Agencies provide some guidance in behest of the public interest concerns of fair, just and equal commercial development throughout American cities, states and regions. A different systemic risk exists if an absence of regulation for those least able to self-regulate promotes fear among small banking entities and their customers and then, not for reasons of evasion or misplaced or imprudent motives, transactions are made merely for want of deference to the metaphysical guidance once perceptible above.

The Agencies together govern a complex and diverse financial industry, composed of many types of financial institutions and entities created by right and privilege under the laws the Agencies administer. The Agencies may only continually seek to achieve an equilibrium in the burden of regulatory compliance to be borne themselves as each a governing agency, and as to that burden to be borne by the public. In doing so, the Agencies guide all market stakeholders and thereby produce national prosperity and capital growth. The proposed amendment is a result of what the Agencies have gleaned from the marketplace and the amendment may readily promote public participation, research, discussion of policy making, examination and enforcement.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.

Sincerely,
Lori G. Nuckolls
Lori Gayle Nuckolls

Featured

When is Personal Status a Crime?

Is it moral, ethical and or proper to criminalize personal decision making that does not challenge the individual identity and or personhood of another? Does a right of citizenship or even of the individual exist if one is unable to disclose the structure of one’s social existence because the structure is proscribed by law and criminalized by the government under which one collectively lives? This question applies to all attributes of the individual, whether it be gender, marital structure, race, source of income, and many other common and current practices of modern existence.

If harm is not imposed upon another, in the thinking of John Stuart Mill (1806-1873), these personal attributes are expressions of liberty and freedom, derived from existence and nature, and may not be ethically restrained by the government. Persons exist within the fellowship of existence. Law and government which encroach upon one’s personal individuality, liberty and freedom are ensured only by prejudice according to Mill.

Even the most liberal and inclusive of elected statesmen has not yet remedied all such personally experienced difficulties in which one is unable to disclose the structure of one’s existence by virtue of one’s life structure being, in some aspect, prohibited by law. We can know the spoken and written words of our governing officials and candidates. Yet, how can we fairly evaluate their demeanor if the material source of their identity, their life structure, is prohibited from being disclosed to the public. Their temperament, regardless of intensity, may not unilaterally be determined by matters in discussion before them.

In his Thoughts on the Present Discontents, Sir Edmund Burke (1729-1797) expressed the view that:

Government is deeply interested in everything which, even through the medium of some temporary uneasiness, may tend finally to compose the minds of the subjects, and to conciliate their affections. I have nothing to do here with the abstract value of the voice of the people. But as long as reputation, the most precious possession of every individual, and as long as opinion, the great support of the State, depend entirely upon that voice, it can never be considered as a thing of little consequence either to individuals or to Government.

(emphasis added). Under American law, as derived from the words of Edmund Burke, as well as countless additional voices of all hues and genders, all should have full, complete, and unfettered participation with one voice. The voice of the individual, not that of the abstract “tyrannous majority” is the founding principle of our government.

Some indicia of personal status, which upon actus reus, or effectuating conduct, constitute a crime in virtually all of the 50 American states are a noncriminal personal status of mental intent, such as a personal yet unconsummated devotion to a career of prostitution or the intent to engage in multiple marriages upon reaching the age of puberty without equal treatment under formal legal acknowledgment of the marital union. If, upon the effectuating act, traditions of liberty in America exist untranscended, is there an ethical rationale for this criminalization?

Sir Burke agrees that a nation is merely the composite of the individuals comprising it in cellular diversity. The principles of respect and ethics by which our nation of individuals is governed are derived via prescription from the very principles by which individual humans share and comport with one another. In the words of Burke:

Nations are governed by the same methods, and on the same principles, by which an individual without authority is often able to govern those who are his equals or his superiors, by a knowledge of their temper, and by a judicious management of it; I mean, when public affairs are steadily and quietly conducted: not when Government is nothing but a continued scuffle between the magistrate and the multitude, in which sometimes the one and sometimes the other is uppermost — in which they alternately yield and prevail, in a series of contemptible victories and scandalous submissions.(emphasis added). Anglo-Saxon, conservative thought upon which America was founded provides due precedent for legalization of many American civil privileges long acknowledged and many that might be.

Such support in the writing of Burke long preceded the day and era of American poet Emma Lazarus (1849-1847) and her poem The New Colossus, in which she wrote:

Not like the brazen giant of Greek fame,

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

“Keep, ancient lands, your storied pomp!” cries she

With silent lips. “Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!”

America lives by a written social contact of enlightened popular democracy. All participate equally. Participation requires an equal voice. A voice hindered and encumbered when such encumbrance is not materially required is unjust. Conservative theorists suggest that persons come together in society when encouraged and implored by a subconscious sense of order, even in present times.

In the thoughts of our President Franklin Roosevelt, democratic patriotism is the right of all on American soil, to seek freedom from prejudice and unkindness, which he deemed an affront not only against the one but also as against the many within the American public. Declaring life structures that are harmless to another to be harmful to the general public when the argument declaring such is not based upon an understanding of the manner in which the rights of individuals and of the government are compromised is invalid. Such assertions of criminal conduct deprive all of liberty and freedom. It is not patriotism under any theory of a respect for our constitutional rights or the national security of our nation, domestic or abroad. For, most importantly, government that is open is government that is most wise, most fair and most just. The people professing life structures we currently criminalize such as: prostitution, multiple marriages, and controlled of substance use, are currently the people we regulate from the criminal and noncivil side of the line as currently drawn. If no injury to others, why not the civil side of the line?

Legal right to the privilege of government acknowledgment of our personal identity and personhood are prerequisites to a constitutionally acknowledged right to speak freely and participate in government. Men and women who offer sexual services for monetary compensation, and sister wives and brother husbands are currently deemed status criminals as to the social contacts to which they are a party. If the multiple wives and brothers seek formal written and governmentally filed licenses of marriage, they are illegal by virtue of intent to misrepresent their family structure and chosen social contract. If men and women who trade currency for sexual favors do so they consummate written and or oral contracts that contravene governing law. If the only proper and ethical concerns of American government are the respect for the rights of our citizens and America’s founding principles of justice and fairness, and not the various tenets and principles long ago giving rise to various proscriptions against certain social contracts, upon what proper bases are these proscriptions founded? For, they continue to exist in numerous and myriad informal and unregulated forms that have been deemed to readily devolve into abuse in previously no longer criminally contexts.

Sex commerce and multiple marriage partners deserve the ordinary rights of citizenship under state and federal law. These rights include the centuries old rights to: real property ownership and management; state and local tax treatment; business commerce and investments; banking privileges; family and juvenile law; no less participation in voting and elections; expressions of faith; and public education, with its long acknowledged absence of truancy compliance, and the aggregations of proceeds brought to America, etc. Only with open access to government and society, that legalization brings, may many honest people not live in fear.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

A formal submission of Public Comments regarding a dispute between the Federal Housing Finance Agency and the Office of Management and Budget. Comments to the OMB on the proposed collection of government information by the FHFA are due today by 11:59 p.m.

Lori Gayle Nuckolls, Esq.

1237 Paddock Hills Avenue

Cincinnati, Ohio 45229-1219

Lori.Nuckolls@post.harvard.edu

lnuckoll@wellesley.edu

lorigaylenuckolls@cinci.rr.com

513-305-7902

August 30, 2018

Office of Information and Regulatory

Affairs of the Office of Management and Budget

Attention: Desk Officer for the Federal

Housing Finance Agency

Washington, D.C. 20503

Submitted via email to: OIRA_submission@omb.eop.gov

Re: Proposed Collection; Comment Request: Minimum Requirements for Appraisal Management Companies, (No. 2018-N-08)

Dear Desk Officer,

I write in formal response to the Notice in request for Public Comments published by the Federal Housing Finance Agency (the “FHFA”) regarding the Proposed Collection by the FHFA entitled the “Minimum Requirements for Appraisal Management Companies, (No. 2590-0013),” pursuant to the Paperwork Reduction Act of 1995. (83 Fed. Reg. 36931-36935 (July 31, 2018)) (the “Notice”). This Proposed Collection concerns the possible amendment of State and Federal law governing real estate appraisers and appraisals offered in support of federally related consumer real estate transactions. And, specifically, this request for comments concerns the bureaucratic functioning of the FHFA with respect to the reporting and recordkeeping duties to be imposed upon the FHFA by federal law. The FHFA has asked the public to comment on four subjects, and I quote: “(1) [w]hether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) the accuracy of FHFA’s estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents .,,,” (83 Fed. Reg. 36931-36935 (July 31, 2018)). I offer comments fully in support of the proposed minimum collection standard as presently drafted as to the FHFA.

As one nation, the United States possesses an historical diversity in its legally recognized forms of real property, by both type and use. American citizens and residents will, in the future, continue to create many increasingly more complex and sophisticated transactional agreements in written contract for the transfer of real property to both consumers and business entities.

The right of owning real property, the right to own a residence of one’s own, is a foundation of liberty and of self-governance. This perception of the inherent value of real property as being attendant to freedom is truly noted in an era of the gainful employment of both professional and vocational unmarried women and men, as well as of unmarried yet same-sex partners. Thus, it is to be presumed that more and not fewer appraisers within the States and Territories will seek to participate in federally regulated transactions. Without a guiding system of didactic regulatory compliance, such as been proposed, Americans and residents in less sophisticated and more provincial regions will not benefit to the extent possible in the course of ordinary interstate commerce.

It is the legal acknowledgement of the right to a permanent situs of residence, usually by recognition of title, from which one may exercise one’s right of electoral franchise. Only with an interest in real property may one participate in government and determine one’s own life, future actions and place in America. For, in the words put forth by Sir William Blackstone:

“the thought of the most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense: under which may be comprised any method wherein estates are voluntarily resigned by one man, and accepted by another; whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties.”

(Commentaries on the Laws of England, Bk II, Chap. 19, 287). In some manner, since the day of Blackstone (1723-1780) such numerous and varied means of tendering real estate for value have required an assessment and an agreement upon the value of the real property.

Then and now, real property consumer transactions rely upon the skill and expertise of nonparties to the transaction in order to support the agreed upon opinion as to the value of the real property being transferred. The expertise of these third parties, such as appraisers of real estate, possess influence as governance of the attribution of value. We are still remedying the Anglo-Saxon form of property once existing in the American Colonial era when indentured labor was personal property. Presently, relative to the purchase of land as a stick in our bundle of property rights, perhaps a fair and reasoned regulation of the services of an appraiser of real property might be in order.

Pursuant to the Notice, under currently existing, jointly promulgated rules, the FHFA and three additional federal agencies, namely: the Board of Governors of the Federal Reserve System (the “Board”); the Federal Deposit Insurance Company (the “FDIC”) and the Office of the Comptroller of the Currency (the “OCC”) govern Appraisal Managing Companies (an “AMC” or the “AMCs”) in fifty-five state and territories. (83 Fed. Reg. 36931-36935 (July 31, 2018)). The AMCs are comprised of a minimum number of licensed and certified real estate appraisers who grant appraisals in support of federally related consumer real estate transactions. Id.

At the discretion of the AMC, an AMC may either chose to register as an appraisal management services business with a State created agency that certifies, licenses and regulates real estate appraisers. Or, it may, instead, conduct such a business as a federally regulated AMC, under the auspices of one of the previously enumerated federal financial agencies, namely the: Board, FDIC, FHFA, or OCC.

Each AMC reports certain information and engages in record keeping and governance of the meritocratic work product standards and ethical conduct of its member appraisers. The AMCs would be named to a national registry of managing companies. Each State would, for itself and on behalf of the AMCs overseen by one of the three federal agencies, submit collected information from the AMCs to an Appraisal Subcommittee (the “ASC”) of the Federal Financial Institutions Examination Council (the “FFIEC”) for creation of a national registry. (83 Fed. Reg. 36931, 36932 (July 31, 2018)). The AMCs are responsible at a fundamental level below, both the state and federal governments, for ensuring the due and credible qualifications and ethical work product of their licensed and certified appraisers, as determined by law. This is a national standard applicable to all.

It is proposed in the Notice, that the purpose and function of the FHFA do not require that the FHFA participate in the collection of information as would be envisioned by the regulations. Yet, it has been suggested that, though FHFA participation would be required, the four agencies have agreed that the duties imposed as to recordkeeping and reporting as to AMCs that become owned or controlled by a federal agency will only be divided among the three federal agencies governing depositary financial institutions, for the entities governed by the FHFA may not become an owner of an AMC as may those entities regulated by the other federal agencies under current law, (83 Fed. Reg. 36931-36933 (July 31, 2018)).

The Notice states that the FHFA would, however, retain, with the other three agencies, its one-fourth share of the obligatory federal oversight burden of review of the reports tendered to the ASC by States which register AMCs. The FHFA would also retain one-fourth of the burden of reviewing the State registration systems in development and State compliance with substantive issues of with legal and ethical standards.

The foregoing bureaucratic duties and obligations of the FHFA are not excessive, and are more than within its obligatory purpose and duty. Federal regulation establishing a minimum standard for a uniform system of compliance in consumer real estate transactions is one of essential notions of imposing a governing didactic of honesty and fairness within the marketplace. Such notions are essentially, in America, premised upon the time honored historical principles of the republican form of government since the historical times of Ancient Rome.

This proposed collection is a uniform, national system of review founded upon a uniform required reporting and recordkeeping applicable even to the smallest of America’s real estate markets involved in federally related transactions. Uniformity in governance from above, a principle of federalism, provides efficiency and economy to the fifty states and five jurisdictions to which this law governing federally real estate lending and appraisals applies.

This regulatory system, even as to the FHFA, provides a comprehensive method that yields quality and increasing merit in the development of appraisal methodology and governance. According to the Notice, as of July 26, 2017, only five of the governed 55 states and jurisdictions “do not possess a system for registering Appraisal Management Companies” (83 Fed. Reg. 36931-36933 (July 31, 2018)) (emphasis added). And, more importantly, according further to the Notice, there are only 200 AMCs currently registered. (83 Fed. Reg. 36931-36933 (July 31, 2018)). The question then is whether participation in the collection currently, or will in the future, pose a burden upon the FHFA to a greater extent than its purpose justifies participation.

With respect to the inclusion of the FHFA in the national regulation of appraisers and its requisite periodic burden as to recordkeeping and reporting, national uniformity as to the smallest of transactions and the least sophisticated of consumers is the hallmark of American democracy, justice and fairness. This system of regulations provides a de minimis level of State and Federal regulation, a “level floor of competency” below which the nation’s real estate appraisers in federally supported transactions may not go.

In no way does or could this duty of reporting and recordkeeping pose a burden upon the FHFA requiring a commitment of resources outweighing its due allocation and use of resources. It is by no means excessive or greater in any extent than the purpose of the FHFA as an agency. Under the proposed collection, the FHFA will not participate to the full extent as the other three federal financial institution regulatory agencies. For, the FHMA may not, under current law, obtain indirect ownership of or control over an AMC, as the other federal agencies may through a regulated depository institution as an intermediary.

In the context of the Proposed Collection, the FHFA should consider that it is the role of the Director of the Office of Management and Budget to:

“‘promulgate rules, regulations, or procedures necessary to exercise the authority provided by this chapter.” It is designed to reduce, minimize and control burdens and maximize the practical utility and public benefit of the information created, collected, disclosed, maintained, used, shared and disseminated by or for the Federal government.” 5 C.F.R. §1320.01.

The Director increases the efficiency of American government through managing participation. The Director enables an agency to more greatly achieve its statutory purpose. The reduction of the regulatory duty and burden of the FHFA to the extent based upon its inherent purpose, function and bureaucratic structure is a reasoned reduction in agency paperwork and it has been so agreed upon by the agencies. No further reduction would enable the FHFA to enable struggling home buyers or restore our market of residential housing with adequate financial safety and soundness. When the reduction in agency duty is premised upon a lowering of the review standard required of real estate appraisers and real property is the fundamental asset supporting the difficult consumer transaction, the inherent purpose of the FHFA is undermined.

I thank you greatly for considering my thoughts and concerns. Please contact me as indicated above if you would require additional information.

Sincerely,

Lori G. Nuckolls

Lori Gayle Nuckolls, Esq.

cc: Federal Housing Finance Agency,

via email to: RegComments@fhfa.gov

cc: http://www.regulations.gov

Philosophy, Law and Politics

Is It Becoming a Meritocracy?

I attended the annual CBA-Roundtable Minority Summer Law Clerk Reception of the Cincinnati Bar Association, held this year in the Cincinnati headquarters of historic Taft Stettinius & Hollister LLP. Taft made a stupendous effort in welcoming law students far beyond the bounds of the traditional path of the “stocks and bonds” law firm. The large gathering included prominent Cincinnati attorneys and governing officials whose careers began much before the era of “discussions of Diversity and Inclusion.” Several first in the family college graduates and law students, whose summer private sector position was a continuation of their academic year law clerkship, expressed true and sincere appreciation for participation early in their careers. Many years ago, fear and resentment would have been evident, but less so in the era of the Clintons and the Obamas. Attorneys who are graduates of elite law schools are now a known entity.

My personal view toward issues of diversity and inclusion, as well as to most all subjects, does not go beyond one of academic diplomacy, based upon merit. I rarely, if ever, form an opinion which I would sternly support against another. Perhaps, doing so would be necessary if the law in Cincinnati and Ohio, state and federal, were more competitive as to client interests. It seems, rather, you may draft beyond reasonably anticipated future challenges.

Fundamentally, the issue of diversity and inclusion in the Cincinnati remains a question, even in light of the true expression of grace at this year’s Minority Law Clerk Reception, of revisionism in the interpretation of local history. Diversity and inclusion are, together, of the many questions asking the manner in which Ohio, and, specifically, Cincinnati, reach the accomplishments reached long ago by many cities and states in America. In some respect, modern issues of inclusive and diverse public and private policies require historical due diligence. This diligence would ask as to the possibly causative and still existing precursors to our issues of, as is our lengthy litany: “affirmative action;” “ending separate-but-equal or defacto segregation;” “integration;” “lack of discrimination;” and “transcending segregation.”

As a Sole Practitioner admitted into practice in the States of Ohio and New York, I have returned to my primary legal subject of administrative law, state and federal, after years in researching and writing on topics of federal litigation. Before, I was not permitted to present arguments found in the judicial opinions of courts beyond the Sixth Circuit, nor in scholarly secondary legal sources.

In solo general private practice, I have given comment on a variety of proposed Ohio Administrative Code provisions, as well as proposed regulations of the U.S. Securities and Exchange Commission and the U.S. Department Health and Human Services. With interpretative reliance upon the founding principles of American government and traditional legal methods of research and argument, one may readily suggest improvements in our governing law.

One belief I do hold is that, in America, private legal practice, even mine, is the source of American common law. For, our common law is actualized from custom unto law by courts and commercial contractual dealings.

From this, questions arise as to how we might garner acceptance of all law school graduates, equally, by all employers. Have we asked how we do this without great disregard for personhood as to any? For, justice is not thereby accomplished. In asking that the least graduated are accepted first by the traditionally reclusive within the legal community, as is being done in both the private and public legal sectors, how will accreditation bullying be dissuaded if it is accorded profit and merit by being paid first?

In the last 25 years or so, Cincinnati has dramatically experienced major economic growth and prosperity. The local universities are more noteworthy than ever before for notable faculty and truly more expansive research programs and centers. Yet, the law in Ohio, has not similarly kept pace.

The Ohio Administrative Procedure Act, in its present form, dates from the mid-1950’s. The Ohio Revised Code has not been revised to encourage economic advance, no less to permit the successful management and retention of the material success Ohio, and Cincinnati, have enjoyed. Most developing cities and states have managed both law and money.

Cincinnati does not live under the aura of national institutions of higher education that benefit Ohio’s northern cities. And, Ohio law has also not developed as has our international commerce has developed. To an even greater extent, the agenda of pending maters before the weekly meeting of the Ohio Joint Committee on Agency Rule Review, indicates that Ohio’s administrative law is scarcely worthy of being deemed “final agency action” in 2018 by state and or federal standards.

Relative to the laws written by attorneys in the State of New York and within the federal government, the laws of Ohio are truly a cruelty. Even if the cruelty does not result from enforcement of obsolete legal standards, the cruelty occurs when those who have chosen to reside and make commitments to neighbors and institutions are then finding themselves under an anvil of suppressive statutes and administrative rules lacking the modern reasoning and logic of the material goods, services and technologies imported into the State of Ohio in interstate commerce to which they commit their funds. Funds and services these arcane statutes profess to govern.

If our laws lack clarity and reasoning, no one can self-govern, regardless of partisanship or opinion. How do clients, attorneys and law students know the source of anxiety in professionalism and in consummating legal services? Without, a best-efforts approach to legal services and best-efforts selection of attorneys and law clerks how will any meritocracy ever be accepted or regarded? To what does our democracy then devolve?

As citizens, as well as attorneys, we have no publicly shared actualizing dialectic, Hegelian or otherwise. Our American government and economy, private and public, are defined as a natural, meritocratic system of profit-based competition, permitting the creation and ownership of value with respect for liberty and privacy.

In Cincinnati, the concern is that the majority of residents do not inform themselves and do not form opinions. They seem mentally transient, as I seem to believe I have heard others say. They seem without a sense of Hohfeldian right, or even privilege, to mentally consider information readily available to the public, no less form an opinion. There is a sense of self-imposed mental repression.

Perhaps the two major political parties gave for too long and without due meritocratic review opportunity to hold government office to those from a variety of social strata not ever before officeholders in America. These are those in the nation who were not among those graduated from elite academic American institutions of higher education. These are those not from the moneyed classes.

Yet, delegating the power to draft and or effectuate legislation and imprison citizens to those for centuries deemed scarcely qualified to hold office is neither democracy nor justice unless the officials demonstrate equal or superior merit. These not yet officeholders were long denied candidacy for office, in part, because they were not of the rich and powerful aristocracy in America, among other reasons. This is the basis for the argument that the absence of participation as representatives was unjust. It is not an expression of unfairness that one is denied nomination because another candidate is of a greater college board ranking than thou. Such a denial is not violative of the thought of Edmund Burke, nor Jack Randolph, nor T.J. Such a denial or exclusion similarly comports with meritocratic selection of attorneys and legal arguments.

My thoughts on “what is wrong” in Cincinnati and Ohio, as the once Chair of Democrat Ward 7 John Albert “Socko” Wiethe, as the immediate predecessor to my father Charles Nuckolls, as Chair, used to say, are derived from the phrase: “Let history be our guide.”

Lori Gayle Nuckolls, Esq.