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A Right and Obligation to Participate

We all deserve representation. The current distress ending in violent unrest indicates a lack of adequate political representation. This is evident in a growing increase in the divide between the haves and the have nots in an increasing number of personal attributes. Many are without an access and understanding of emerging technologies, funding and access to higher education and health care. This is most evident in America’s rural and inner-city communities.

The rights we all possess go back to the early days of the Magna Carta, 1215. These fundamental rights of the individual are now deemed possessed by all within our global community, only after periods of time in which evolving and developing societies came to realize that these rights did not belong to a limited few.

In order to avail oneself of the various rights we possess as individuals, we must be able to self-govern and reach informed decision making about our place in society and our choice of governing leaders and government structure. Identifying our public responsibilities and obligations requires that we imagine that we are behind the John Rawls “veil of ignorance.” This is a circumstance in which we do not know our own place in society. And, we must determine the threshold socio-economic level we require for subsistence and survival.

In the thoughts of Alexis de Tocqueville, one of the greatest threats to democracy is pauperism. We must admit that pauperism exists on a global scale. Tocqueville believed that pauperism is best overcome by the guidance provided to the public by the productivity and efficiency of a capitalist economy.

In Tocqueville’s day this guidance was provided by local financial institutions. Small financial institutions located in individual, political subdivisions, close to the public, instill values required to adequately participate in society and a representative democracy. Currently in America, local branches of financial institutions impart capitalist ideals of self-sufficiency and money management through financial counseling. And these institutions guide small account holders in their use of emerging technologies and personal accounts, from making deposits to money transfers and investment. According to Tocqueville, these activities encourage principles of self-sufficiency and upward mobility. For Tocqueville, this was more feasible in rural communities where small farmers needed guidance with harvest management to avoid the force majeure, boom to bust circumstance of inclement weather. Cities for Tocqueville were more difficult. Industrial economies of the 1830s resulted in cycles of unemployment with periods of low product demand and an ever-increasing urban population that could not support itself. Modern financial institutions, now, provide an economic didactic to entrepreneurial development, emerging technologies and failing, outmoded industry.

Fear of an inability to provide for oneself and participate as an equal member of society generates protest, and rebellion, both at home in America and abroad. As an initial step, perhaps we should look to the sources of this insecurity and ask how would we respond if we were sitting in the place of the insecure and what the public response should be. What would I, as an individual and participating member, require to engage in informed voting? Perhaps Tocqueville and Rawls offer a beginning. And, in the thoughts of J. Hector St. John de Crèvecœur: from soil values grow.

Lori Gayle Nuckolls

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The Democracy and Science Equilibrium

(Originally published in Thinktank No. 45 (British Mensa Ltd., Wolverhampton, West Midlands, Eng., U.K.), Winter 2021, at 2-4.)

Science and technology could enable us to develop democracy and the common good as they evolve in complexity and achieve a greater standard of living. The history of our world arrives from progressive steps of scientific advancements and governmental policy reform that leapfrog and alternate one after another. The difference between these points has at times been extreme, such as, in the modern era, the destructive technology at Hiroshima followed by the humane and peaceful mitigating governmental reform and salvo of the United Nations.

Humans are lost in contradictions between scientific advancements and humane policy initiatives, awaiting the synthesis of the dialectic, fearing that the contradictions will perpetuate through history. A scientific view of the history of culture influences our interpretation and application of technology. In providing enhancements in materialism, technology should defer to democratic principles. Governmental policy and reform must measure and evaluate technological power in a manner that honors foremost the public and common good.

Human nature is both good and bad. The minds of men give rise to negative incidents. Freedom, justice, equity and other positive connotations of progress require a global democracy founded upon diplomacy and immigration. Society must ensure that science and technology do not overwhelm, transcend or overpower a global democratic government.

Neither chance nor happenstance determine scientific and technological developments apart from study and expertise. Humans are self-determining. Democracies are founded upon meritocratic competition and government by a natural aristocracy ruling over a majority of equals. We must develop a global future without repeating mistakes of the past and without allowing scientific and technological developments create mistakes of the future. Moral principles must govern our technological advancements. We must look beyond the public good, the good produced for the majority population, being in utilitarian thought the greatest good for the greatest number. We must look for the common good of all.

An increasingly higher standard of materialism produced by technological advancements achieves, or at least could achieve, a public good for the world over.

In looking to the future in view of the past, the public good must be coextensive with the common good and principles of individual and personal dignity. A global, meritocratic democracy is one of fairness and equality, a utopia of self-government and community participation. A utopia which may be within reach.

A global democracy requires global respect for individual humanity and a shared appreciation for different identities, whether they be cultural, racial, religious, ethnic, national, gender and or sexual orientation, etc. And, this requires a quest for the common good where governing institutions maintain a quality of living for all citizens.

The present global dissension should not allow individual identities transcend our fidelity to a global citizenship and equality under the rule of international law, the common good. Immigration of those in search of a free country is the basis of the American democratic experiment as well as many others.

Worldwide, individuals will always possess unique group identities that separate them. In as early as the beginning 1900s, global migration in behest of freedom, unity and justice was the source of discussion in international entertainment. As stated in The Melting Pot, written by British playwright Israel Zangwill, premiered to rave reviews by American President Theodore Roosevelt in Washington, D.C. in 1908, and then in London in 1909, individuals can amalgamate into a melting pot of citizens who maintain and express their pluralistic selves.

Within a New Melting Pot of the twenty-first century, each citizen would respect the culture of all. Modern democracy would provide that all cultures are neither preempted by government nor society so long as the cultures are respectful of each other and of democracy. Former colonial nations exist that are still fraught with violent, anarchical and technologically steeped governments. Powerful democracies should strive to bring about a global democracy based upon the commonality of human nature.

In a New Melting Pot, we should seek a new utopian social contract of a just society under a global democratic government by imagining that we, ourselves, do not know our respective future condition, our position in society, or our own self-interest. We then, in all countries, would seek laws and governing institutions that safeguard the position of the least well-off in society as that becomes our point of self-interest. For, social unrest occurs when a social contract is disregarded, and there appears to be no other means of effective popular expression.

The conquering of Afghanistan by the Taliban is a recent example. Once students of religion, the Taliban now strive for a brokering by foreign powers of an inclusive government. Yet to be seen is whether the Taliban social contract will be one solely of religious doctrine. Or whether, instead, the insurgence resulted because only their faith provided a source of belief and trust rather than the democracy they now seek.

Another example is the continuing abduction of African school children. Attacks upon children’s schools are attacks upon the basis of democracy: education. Such acts are by those feeling deeply uncared for in society, evoke attention and result in government for none.

Neither we nor our leaders should allow our pluralistic identities determine our decisions and opinions. Rather, in a democratic society we should participate in our political community and do so in a way that places the principles governing a republic above all else. The doctrines incumbent within our group identities must defer to these founding principles.

The continuum of political affiliations, from left to right, may freely express opinions in civil discussion and debate, the requirements of a democratic society. Democratic self-government and participation should be cultivated. Public participation should be facilitated by reasonable means. Many citizens do not know how to vote. Many nondemocratic countries lack knowledge in how a democracy could be constructed from their existing society and government.

The New Melting Pot requires public and private leaders who guide citizens in their ability to place a global citizenship above personal identities and who engage in policies and decisions that reflect the myriad of identities in society. The decision making of our private and public leadership should consider public opinion regarding life’s issues and concerns gleaned from civil and respectful public expression, encouraged and not ignored.

Diplomacy may be the only answer. We exist interdependently and no one is entirely responsible for a success or failure, a win or loss. A meritocratically governed democracy is to be respected by all.

Perhaps our first step toward globalization in the leapfrog dialectic is that of respect for one another. Respect in behest of life creates goodwill rather than destruction. And, it is difficult to assert destructive technology and governmental power against life one respects. An earnest understanding of one another is the foundation of the global public and common good and a source of integrity and dignity for all.

Lori Gayle Nuckolls

Should Political Parties Give Rise To Government By Natural Aristocracy?

Government in the United States is currently experiencing great ideological polarization. It is government by duopoly, two extremely divergent political parties. These political parties emphasize electability in selecting candidates and popular appeal in deciding policy issues. In fact, contrary to government by populism, this system of duopoly has abandoned large segments of the population. Third parties are emerging, voter turnout fluctuates, and the January 6th insurrectionists indicate that many are without representation.

The American dream is that of a land of opportunity for all, a meritocracy where talent leads and governs. It is the duty of a political party to guide citizen participation. And, political parties should defer to the founding principles of the country. The dilemma of duopoly and ideological extremism now before America’s political parties must give way to instructing their members that the party’s best and brightest must lead the party and be nominated as candidates. In the alternative, a goal of cult of personality populism gives rise to chaos and an absence of government.

Our current era is one of an ample access to information. The public can learn and discuss topics before them and make wise decisions. Citizens want representation. Failure to participate indicates the absence of adequate choice.

The design of America is global democracy. To bring democracy to the world, the United States must first place its natural aristocracy in government. The governing institutions and political parties must assist the academic community in effectuating a transition.

Political parties which divide and do not discuss risk implosion. For, without learned opposition, a political party devolves into ineffectual faction, sheer disintegration. A picture of our possible future is found in Simone Weil’s On The Abolition Of All Political Parties (1943):

“Nearly everywhere – often even when dealing with purely technical problems – instead of thinking, one merely takes sides: for or against. Such a choice replaces the activity of the mind. This is an intellectual leprosy; it originated in the political world and then spread through the land, contaminating all forms of thinking.”

Ohio Constitutional Amendments Demand a 50% Voter Approval: Vote No on Issue 1

On Tuesday, August 8^th, vote no. For, a majority, 50%, approval by the voters of amendments to the Ohio Constitution should be maintained. America is a country governed by its people, one of majority rule.

We, through the U.S. Constitution and those of the states, acknowledge that a majority of a population of a country might be flawed and tyrannous. Consequently, America engages in a representative system of “checks and balances.” Our legislative bodies, executives and courts act to filter our laws and reforms. In no respect does America act under a system of direct democracy wherein the collective body of individuals determines the laws by which they are governed. With respect to the amendment of the Ohio Constitution, amendment proposals require extensive review by the Attorney General, Ballot Board or Secretary of State. All proposed amendments may be challenged in a case brought before the Ohio Supreme Court.

With these checks and balances in place, we should encourage popular involvement and participation in American government, not place our legal development more and more out of reach. The Ohio Constitution is rarely amended. It is a truly difficult process, even by the majority vote of the electorate. The current constitutional requirement inspires communities and learning so that a voter may form opinions and express oneself at the polls. A sense of self and self-government are needed in light of rapidly developing technologies, such as artificial intelligence and digital assets. We should not dilute or remove the people from the process of law.

Lori Gayle Nuckolls

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

A New Melting Pot

The present dissension in our ever so diverse society should not allow individual affiliations of race, ethnicity, nationality, religion, gender, and or sexual orientation, etc., transcend our fidelity to citizenship and equality under the rule of law. Individuals will always possess unique group identities that separate them one from another. But as stated in The Melting Pot, written by playwright Israel Zangwill and first performed to rave reviews by President Theodore Roosevelt in Washington, D.C. in 1908, individuals can amalgamate into a melting pot of citizens who maintain and express their pluralistic selves. Yet, each citizen would respect the culture of all under one government.

Our modern democracy should provide that all cultures are neither preempted by government nor society so long as respectful of democracy. The continuum of political affiliations from left to right should also freely express their opinions in this manner. Civil discussion and debate are the requirements of a democratic society.

Neither we nor our leaders should allow our pluralistic identities determine our decisions and opinions. Rather, in a democratic society we participate in our political community and do so in a way that places the principles governing our republic above all else. The doctrines incumbent within our group identities must defer to these founding principles.

Citizen participation should be facilitated by reasonable means. Many do not participate for want of knowledge. They do not know how a vote may be cast. Similarly, private and public leadership should consider public opinion regarding life’s issues and concerns. Civil and respectful public expression should be encouraged and not ignored. Most importantly, it must be included in private and governmental decision making.

Within the melting pot of the twenty-first century, we seek a social contract of a just society under our democratic government by imagining that we, ourselves, do not know our respective future condition, our position in society, or our own self-interest. We then seek laws and governing institutions that safeguard the position of the least well-off in society as that becomes our point of self-interest. For, social unrest occurs when our social contract is disregarded, and there appears to be no other means of effective popular expression.

The melting pot requires that public and private leaders guide citizens in their ability to place citizenship above personal identities. Policies and decisions should reflect the myriad of identities in society.

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

Investment is Participation

As residents of a democratic republic, we self-govern and participate in ways other than merely through the ballot box. Participation in our market economy is required to safeguard the freedoms and liberties of a just democracy. Consequnelty, I am sharing a comment I submitted today to the Securities and Exchange Commission regarding investments of a type with which we are all familiar.

Lori Gayle Nuckolls

April 26, 2020

Sent Via Email to:rule-comments@sec.gov

Vanessa A. Countryman

Office of the Secretary

Securities and Exchange Commission

100 F Street NE

Washington, DC 20549-1090

Re: File No. S7-04-20

Dear Secretary,

I write with interest in Securities and Exchange Commission (the “SEC” or the “Commission”) Release Nos. IC-33809; File No. S7-04-20, dated March 2, 2020 (the “Release”) concerning the Request for Comments on Fund Names (the “Request for Comments”) and the discussion therein of the possible amendment of the Commission’s regulation of names of registered investment companies and business development companies (hereinafter referred to as “Funds”), specifically 17 C.F.R. §270.35d-1, promulgated under section 35(d) of the Investment Company Act of 1940 (15 U.S.C. 80a-34(d)) (hereinafter referred to as “Rule 35d-1” or the “Name Rule”). The essential purpose and rationale for the Name Rule, as stated in the Commission’s release announcing its adoption dated January 17, 2001, remain unchanged. (Release No. IC-24828; File No. S7-11-97) (66 Fed. Reg. 8509-8519)(as corrected at 66 Fed. Reg.14828-29) (the “Adopting Release”). Consequently, I recommend that there is no need for significant amendment or revision. Rule 35d-1 continues to meet the Commission’s regulatory objectives in the main.

Since the Commission’s creation almost a century ago during the administration of President Franklin D. Roosevelt, the Commission has maintained a two-fold purpose: serving a perceived need for investor protection and facilitating our nation’s commerce through guidance of public and private companies. The Name Rule is a recent regulation that achieves both of these objectives. As a primary example, the United States has long recovered from the economic catastrophe of the Great Depression and the existence of unregulated markets that inspired the Commission’s creation. Both those selling securities and those investing in securities have learned to not misuse or misread, respectively, terms including the name United States, U.S. Treasury, etc., in the description of financial instruments. Thus, the proscription against doing so contained in §270.35d-1(a)(1) has long achieved its didactic purpose and it should remain as drafted.

The Commission has noted a concern regarding the Name Rule’s current requirement that any Fund whose name suggests that it “focuses its investments in a particular type of investment or investments” or in a particular industry or type of industries must adopt a policy to invest at least 80% of the value of its assets in the particular type of investment or type of industry suggested by its name “under normal circumstances.” 17 C.F.R. §270.35d-1(a)(2). If fund management decides to vary from the investment policy suggested by the fund name it must provide its shareholders with at least 60 days advance notice of a change in the policy governing its investments. 17 C.F.R. §270.35d-1(a)(2).[1] If the Fund does not comply with these requirements, the name of the Fund is considered to be “a materially deceptive and misleading name.” 17 C.F.R. §270.35d-1(a).

The Adopting Release of the Name Rule sets forth the Commission’s position as to the proper interpretation of the “80% requirement.” As stated at 66 Fed. Reg. 8516:

“Only those investment companies that have names suggesting a particular investment emphasis are required to comply with the rule. In general, to comply with the rule, an investment company with a name that suggests that the company focuses on a particular type of investment will either have to adopt a fundamental policy to invest at least 80% of its assets in the type of investment suggested by its name or adopt a policy of notifying its shareholders at least 60 days prior to any change in its 80% investment policy. The 80% investment requirement will allow an investment company to maintain up to 20% of its assets in other investments. An investment company seeking maximum flexibility with respect to its investments will be free to use a name that does not connote a particular investment emphasis.”

In the absence of comment by Funds that the 80% requirement proves too burdensome a restriction since its adoption in 2001, this percentage should be maintained. The public as well as the ordinary investor perceives in the ordinary course that the stated purpose of Rule 35d-1, that of providing the public with an accurate understanding of fund policies and objectives, requires a significant commitment to the investment objective suggested by the Fund name. The 80% requirement is one readily understood by investors and lessening it is not indicated. Investors are expected and do alter investment allocations under the theory of the 80% requirement. The leeway provided funds to depart from the 80% requirement when incurring other than ordinary market conditions is an exceedingly permissive exception to the 80% requirement, for it defers to the discretion of Fund management as governed by fiduciary duty subject to SEC review on a case-by-case basis. Lastly, while the 60 day notice to shareholders requirement places the burden upon the ordinary investor to alter investments upon a change in Fund investment policy, a longer period would undermine the purpose of providing some profitable market flexibility to Funds.

Market conditions have changed in both the increased growth and diversity of potential investments. Consequently, emerging markets and their attendant risks are numerous. There is an even greater need for the 80% requirement. It provides Commission guidance in defining the information to be provided investors as well as apprising Funds of potential liability. By maintaining the 80% requirement, the Commission discourages abstract and vague Fund names through requiring acknowledgement of a need for specificity in the marketplace. For, an investor should know and expect to be informed as strictly as possible as to the nature of the Fund’s investments and the 80% requirement achieves this end.

As the Commission suggested in the Request for Comments, market conditions pose issues of whether regulation is needed for Funds devoted to “qualitative” policy objectives, such as investments guided by environmental, social and or governmental concerns. 85 Fed. Reg. at 13224. Such lack of regulation may lead to investor confusion and the avoidance of investment. To ease investment, compliance and enforcement, the Commission could require that a Fund engaged in such qualitative objectives comply with a standard similar to that currently governing Funds whose investments are tied to certain countries or geographic areas. 17 C.F.R. §270.35d-1(a)(3). In doing so, the Commission could require that the Fund enumerate a qualitative criterion or set of criteria that are set forth in the governing documents of the entities in which it invests. The criteria would reflect the Fund’s qualitative objective or objectives and aptly be reflected in the Fund’s name. Restricting a Fund to one qualitative factor or criterion in its name might unduly restrict market activity and competition and result in a multiplicity of Funds in order to achieve several qualitative objectives. Requiring disclosure of the criteria would avoid the vagueness and abstraction of the “ESG” (environment, social or government) termed Funds.

Regulation of Funds whose name connotes global or international investments is probably not necessary. For, the ordinary investor would understand the wording used in these types of Funds. If greater specificity is needed by investors, market competition would result in more narrowly designed Funds. Requiring greater specificity in a Fund name and disclosure materials as to the type of international investments would, however, shift the primary burden of review from the investor to the Fund.

Similarly, in governing derivatives, Rule 35d-1 ably meets the Commission’s primary concern of disclosure of risk to the investor. Use of the asset-based test of market value rather than notational value to determine whether a Fund is in compliance with the 80% requirement instructs the investor without further inquiry and also guides the Fund in compliance. Marker valuation better indicates price sensitivity.

In conclusion, investors properly rely fundamentally upon Fund management and its due diligence, judgment and maintenance of fiduciary duties. The Commission, and Rule 35d-1 specifically, ably guide Funds and investors in market participation. In reviewing the Name Rule, the Commission must decide how much diligence should be borne by the ordinary investor.

I thank you greatly for the opportunity to comment before you. And, if additional information might be of assistance, I may be contacted as indicated above.

Sincerely,

Lori G. Nuckolls

[1] If the Fund is a tax-exempt fund, such a policy is deemed a “fundamental policy” and may not be changed without a vote of fund shareholders. 17 C.F.R. §270.35d-1(a)(4).

The Hegelian Dialectic Of Capitalism And Socialism In The American Bureaucracy

Socialism may be impossible yet it is unavoidable and must occur in cycles of reform with Capitalism. In the Hegelian theory of dialectical materialism of existence, critique and synthesis in remedy and solution, Capitalism is destroyed in part periodically by Socialist reform and then reborn again. In the United States, Capitalism is structurally restrained by bureaucratic reforms based upon theories of the public interest, nationalism and the commonweal, all theories of Socialist empathy.

The U.S. Constitution creates three branches of government: the Legislature, the Executive and the Judiciary. The President, as a modern Executive, is empowered with an enormous regulatory bureaucracy which is overseen in a manner of checks and balances by the other two branches. This modern bureaucratic state has placed upon the private sector a primary motive of being that departs from the for-profit motive of Capitalism and imposes that of ensuring legal compliance. In a complex era of high technology and big industry, this Socialist leaning is unavoidable if Capitalism is to survive. And, such regulation, though democratic and Capitalistic in spirit and theory, is Socialist in result.

This dualism, the points along a continuum of Capitalism and Socialism, in the philosophy of G.W.F. Hegel, is humankind’s striving toward the absolute freedom of the species in actualization of an unknown Idea, the consummation of evolution. Regardless of one’s belief in the source or definition of the Idea, humans evolve incrementally, improving life in their community. The various elements of the community each evolve along the Hegelian dialectic from existence to critique to synthetic improvement. The many elements include: religion, science, philosophy, art, literature and education. An additional element is the economic Capitalist-Socialist continuum which evolves in dialectical form and is expressed in the governing structure of the community.

Through rational, reasoned reform of its Capitalist governing structure overtime, America has achieved its current bureaucratic state. This bureaucratic state is currently in a period of contraction, with the undoing of some Socialist theories and returning to earlier thoughts of Capitalism. Much of the current trend toward a rebirth of Capitalism is a result of new technology and the creativity it has inspired in the area of commerce. Entrepreneurs are emerging in all business sectors. Americans who enjoy new goods and services and a sense of patriotism economic creativity engenders ask for reforms in government to facilitate further business development.

The current expression in America of this phenomenon, of a demand for government and economic creativity, is not a full destructive critique of Socialist expressions in the American government and economy. Rather, it is an expression of the Janus dualism in human nature. As history indicates, humans are innately inquisitive and acquisitively self-interested. Humans as a species are also affectionate and emphatic. From the beginning of Colonial America until the current presidency, America has evolved in cycles of “boom and bust,” high surges in Capitalist creativity and profit absent imposing regulation to despairs of economic failure and the lessening burden of governmental business safe harbors and social safety nets. This is an example of the philosophical construct of dialectical materialism.

In example, the legislature acts in response to changes in popular will with developments in human history. Citizens ask for a repeal of burdensome laws in times of business prosperity and, in turn, for social measures in times of hardship. Unlike legislators, judges are bound by codes of ethics to abide the rule of law first and foremost as it embodies theories of democracy, fairness and justice. These theories should be immutable regardless of the nature of economic times, regardless of boom or bust. So, to what do we attribute judicial repeal of time honored legal precedent, especially when these changes in the law coincidentally parallel new economic events and changes in popular will?

Judges exercise independent judgment absent partisanship. Yet, in the spirit of Ludwig von Mises and great thinkers from time immemorial, judges acknowledge the essential qualities of human nature – self-interest, greed, empathy and affection. So, too, judicial opinions reflect changes in history and socio-economic developments over time which avail themselves of the Hegelian dialectic as expressed in Capitalist and Socialist theory. An essential question exists as to whether the judiciary must respond to the import of the human creativity these qualities produce and the effect of human creativity upon the community the judiciary governs?

The American public should discuss the nature of governmental reform as expressed by changes in rights and privileges incumbent within the rule of law. The primary focus is the Hegelian dialectic of the Capitalist-Socialist continuum.

Colonial America expressed the dialectical continuum with the beginning point of the existence of the individual rights possessed by Native Americans. The discoverers of the New World were encouraged by developments in the means of maritime travel to conquer the Native Americans and, in Capitalist fashion, usurp their property in a theory of survival of the fittest. Yet, the Colonials stepped away from their own usurper, the English monarchy, through many acts and demands of social welfare, namely the survival of humans as individuals, possessing equal rights of individual self-governance and self-determination in a communal environment. The history of Colonial America is one of synthesis for England imposed tariffs as a large, usurpations government providing for English citizens. Yet, the Colonial and Early Americans, themselves, engaged in a Capitalist plantation economy with Socialist theories of paternalism in the maintenance of the institution of slavery and indentured servitude. Native Americans, even today, benefit from theories of Socialism.

The American Civil War began a critique of the Capitalism of the slave economy. It began with individuals forming the Underground Railroad and the act by predominately Northern slaveholders of permitting slaves to purchase their freedom through learning gainful labor or acts of unrestricted emancipation. The Socialist critique of the then existing Capitalist American economy consummated with the act by President Lincoln of emancipation.

In response, to newfound competition of Americans of African descent, the judicial opinion of Plessey v. Ferguson was issued imposing business restraints upon Black Americans. This, too, is a dualist, synthetic critique expressing Capitalist and Socialist theories. For, it provided a Socialist business subsidy to White Americans thereby encouraging competition at the expense of Black Americans. The Socialist correction was Brown v. Board of Education. Intervening was extensive public reform in the creation of the American Bureaucratic State in the form of the New Deal.

America continues the challenge of the bureaucratic state in the modern era. Much regulation is currently challenged to permit new forms of industry. The Hegelian dialectic provides material synthesis of contradiction and paradox to form new laws from new customs and new legal developments in the private sector of contract law and business formation.

The remedies proposed for the laws currently governing bureaucracies in America are equally along extreme points in a continuum. Some purveyors of conservative legal thought seek a return to theories of non-delegation which would extensively negate the power of Congress to delegate “legislative” power in the form of rulemaking to bureaucratic agencies. More liberal points of view on the continuum would support agencies by expressing great deference to their exercise of rulemaking and adjudicative powers owing to their expertise in highly specific subjects requiring centuries of experience.

In America, we rely upon the judiciary to honor a truly just midpoint along the Hegelian dialectic of Capitalist and Socialist reform. With the U.S. Constitution in place, we will never return to an economy that is too Capitalist or evolve into one that is too Socialist.

Lori Gayle Nuckolls