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Á La Citizens United, Should Corporations Exercise Influence Commensurate With A Vote?

One may understand why there are those who find the debate regarding Citizens United troublesome regardless of whether one supports or does not support the decision of the U.S. Supreme Court allowing corporations to contribute to political campaigns. One question that arises is whether corporations are to be permitted virtually unrestricted and unfettered rights of political participation? Do corporations impose upon the constitutional right to privacy, as an essential attribute of intangible property and a life-sustaining characteristic upon which individuals depend, when they participate in elections?

Corporations do not possess a quality, property or characteristic as the sense of privacy that goes to innate, subconscious, free and unencumbered human thought and choice. Self-governance and self-sustainability, in behest of self-governance, are the founding requisites of a democratic republic. This right and privilege of every individual is founded upon the existence of personal integrity and privacy. If corporations are equal yet not so dependent upon a guarantee of this form of privacy, may American citizens maintain their privacy and freedom to participate without imposition? The state chartered corporation is a creature of statute that lacks the intuitive sense of whether its thoughts and actions challenge its very survival and existence. Corporations exist absent the psyche. And, if corporations argue that business entities possess rights of property and privacy, American commercial law has long protected commercial confidentiality and intangible property interests through securities regulation, patent and copyright law, contract law among many.

Historically, tradition provides the premise and understanding that modern corporations do not vote. So it difficult to justify and to establish the right of corporations to offer publicly disclosed campaign contributions similar in public influence and public suasion to a vote, if not to the election count. More essentially, around the globe, in history the ancient family and the ancient corporation were similarly governed as one corporeal entity, patriarchically, without the recognition of individual form. The Corporation sole was the pater, aggregated one with others. Corporations and families have generational existence, in perpetuity, yet individuals do not, both historically and in the modern era. Says Sir Henry Sumner Maine: “Corporations never die, and accordingly primitive law considers the entities with which it deals, i. e. the patriarchal or family groups, as perpetual and inextinguishable. “ (Maine’s Ancient Laws, Chap. V. Disintegration of the Family).

In discussing the historical transition, Maine states:

“Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family. It is contract. Starting as from one terminus of history from a condition of society in which all the relations of Persons are summed up in the relation of the Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals.”(Maine’s Ancient Laws, Chap. V. Disintegration of the Family). For Maine, the Family and the Corporation were both Groups, led patriarchically. There have come to be replaced by the Social Contract of one individual to another.

One must observe the analogy of Maine with the Syllabus of the U.S. Supreme Court in Citizens United, 556 U.S. 310, quoting Syllabus at 2(a):

“(a) Although the First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech,’ §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’ WRTL, 551 U. S., at 464.” Yet, is the Corporate contribution or Corporate PAC too great a legal fiction in the modern era to compete with human life forms in the expression of political opinion?

For, the Corporate PAC is twice removed from the individual shareholder or corporate employee relative to the individuals of the Corporation sole comprising the Corporation aggregate. In Maine’s lengthy language:

“English lawyers classify corporations as Corporations aggregate and Corporations sole. A Corporation aggregate is a true corporation, but a Corporation sole is an individual, being a member of a series of individuals, who is invested by a fiction with the qualities of a Corporation. I need hardly cite the King or the Parson of a Parish as instances of Corporations sole. The capacity or office is here considered apart from the particular person who from time to time may occupy it, and, this capacity being perpetual, the series of individuals who fill it are clothed with the leading attribute of Corporations—Perpetuity Now in the older theory of Roman Law the individual bore to the family precisely the same relation which in the rationale of English jurisprudence a Corporation sole bears to a Corporation aggregate. The derivation and association of ideas are exactly the same. In fact, if we say to ourselves that for purposes of Roman Testamentary Jurisprudence each individual citizen was a Corporation sole, we shall not only realize the full conception of an inheritance, but have constantly at command the clue to the assumption in which it originated. It is an axiom with us that the King never dies, being a Corporation sole.” (Maine, Ancient Laws, Chap. VII Corporations Sole).

As the purpose of the public recognition of and grant of existence to corporations is premised upon public interest principles of encouraging specialization and expertise in corporate productivity that transcends generations and is duly and ever more increasingly regulated and reviewed by both government and the public, what is the rationale or public interest in permitting corporations to exercise a constitutional right it cannot do via human means in its acknowledged name and form? If the concern is that traditional corporate subterfuge would encourage greater underhandedness than publicly communicated opinion as currently permitted by Citizens United and governmentally regulated Lobbyists, then, there may be no recourse than time. In the future, the development of regulation that would permit corporations to achieve ends now sought through political expression would end competition with voters and still permit voter review of corporate conduct through representative government.

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

Law Is Our Only Legally Required Social Didactic

Do we only garner community support and respect when we firmly plant our feet in the soil, or, in our concrete of modern times, and discuss our world from top to bottom. Those concerns of science are most significant and are necessary to our daily, quotidian existence. They are on top and are accorded a greater priority than those related to aesthetics and art. We respect our civilized lives, culture and government, as our governments have arisen from more, primitive versions of written governing documents: federal, state and local. We defend the rights and privileges our democratic republic grants and pledges to ensure to citizens and, in some cases, residents not yet citizens.

Every citizen, and those not yet citizens, in America, possess details that give rise to abstractions as attributes of personhood. Our American soil and modern concrete imparts into our indicia of personhood, and synergizes within our American populace and guests, a refinement of our civilization.

Americans will refine society until achieving natural extinction of our planet. America’s continuing writing of its history, and the contributions of its history makers, will share within the pages. In learning how to make and share history, we must explain the puzzles as we solve them. We mature within the course of both our history and our future, and the varied social institutions. More importantly, we must explain our popular lawmaking, both within the formal, authorized bodies of government, as well as lawmaking through the informal popular influence of citizens and residents.

Each law in America is an historical fact, from our legislatures as statute, and as common law and law at equity from state and federal judiciaries. (See, Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, Chap. IX.) As the history and nation grows and refines, commerce advances, and our world increasingly becomes more complex as do the contracts governing transactions. Legislatures enact and reform statutes. Governmental agencies study and regulate specialized subject maters. Our courts define words, review state action and rule upon issues of law and fact.

The communities we live in grow to more and more contain aesthetics, literary attributes, sciences, and technologies. Our laws increase to permit our use, and our continued revision of our laws permit their continued use. Most of our new laws arise from contracts between two or more parties. Contracts impart principles of fair and honest dealing, which Judges — elected and appointed — review and interpret, with justice and fairness to the parties, the legal community and society. The contracts increase in complexity and sophistication.

Generationally, each of us, as did our predecessors and as will our future descendants, gleans a sense of self. This sense of individual, personal morality exists distinct from our popular majority’s collective value system we voluntarily self-impose. (See, Twain, Mark. The Adventures of Huckleberry Finn, Chap. I.) All the laws of the community, as well as the values embodied within us, create a sacredness we and government respect. (See, Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, Chap. IX.)

In the words of my father, Charles Butler Nuckolls, Jr., a retired history teacher: “patriotism is a love of country not for what it is, but for what it is able to become.” Our personal and collective morality, and the laws arising from them, are to be revised and remedied if we are to be properly accorded respect thereunder.

Lori Gayle Nuckolls, Esq.