Flashback – 1999

Many moons ago, long before the bizarre mental exhibitionism of blogs, I used to keep a journal which I fairly regularly updated. Among these pages are words no one (besides me) have ever read. More than likely, if I died, along with all those thoughts in my head that are fantastic enough to keep me happy to be alive, these words would be forever lost. Often, I create the unrealistic Hollywood scenario where these journals would be stashed away on a DVD (or the printed volumes I currently have on a shelf in my study would be relegated to a box in some attic) when some distant descendant with an interest ancestors would stumble upon them and the recorded thoughts would change their life (for the better) forever. More likely, they would deteriorate to atoms in a landfill, but since I’ll be dead and it doesn’t truly matter to me, I like to imagine it the more romantic way. I probably have 5000 pages of entries that include thoughts, things I did, notes on books I read, etc. so it is kind of strange to think that conceivably, a person who is not even born yet could know my thoughts more intimately than any individual in existence (without first person access.)

Back in the late 1990’s, one of the things I would regularly do would be to write to my senators and representatives about the political topics of the day. I’ve since given up on the ability to affect change in this way. Back then, though, when I thought a good idea could change things, I wrote lots of letters, and when I did so, I would paste it into my journal to record it. Since it is election season (early November), I thought I’d pull out one of those old letters for kicks. This one was sent to Senator Richard Lugar on May 14, 1999 after I was really pissed off about how much a pain in the ass filing taxes is. (My general opinion remains the same: it pisses me off that I have to spend so much time making sure that I am paying the right amount of my money to a government body that will essentially treat it with much less regard than that money means to me.)

Dear Senator Lugar,

After becoming increasingly frustrated about the complexity of filing my federal income tax return (not impossibly complex, but unreasonably complex), I have resolved to become more aware and involved in the activities of federal government. I am happy to report that I have found the Internet to be a very handy means of quickly ascertaining the activities of the Senate and House of Representatives. I am distressed to report that I find the sheer quantity of bills under consideration to be quite intimidating. After studying the content of some of them I am not encouraged, as I find the language is thick and hard to follow. Unfortunately, the summaries typically do not provide a clear understanding of the true implications of the bill. For instance S. 900 is described as

An original bill to enhance competition in the financial services industry by providing a prudential framework for the affiliation of banks, securities firms, insurance companies, and other financial service providers, and for other purposes.

But this does not even begin to describe the amount of regulation that is lifted, changed or imposed throughout the course of this bill and its amendments. Additional cross-references make deciphering the context even more challenging. I do understand the need to minimize the ambiguity in legislative syntax; however, I cannot but help believe that the language in these documents has become far too esoteric for the average person to reasonably comprehend. In a country that holds that “ignorance of the law is no excuse” it seems imperative to specify the context of the bill in a manner that is clear to all the people who are expected to abide by it. Incidentally, this is the same problem that frustrated me to begin with–the complexity of income tax code. I refuse to believe that in order to be effective, legislation must be stated in a manner which camouflages what the bill proposes must be done and/or cannot be done in a series of recursive indirections and puzzling “contract” syntax.

Since as an American citizen I must abide by the laws established in these bills, I should be able to read them once and have a clear understanding of what it is preventing me from or providing for. With most of the bills under consideration, this is not possible. Furthermore, there are over 1700 bills introduced by the House (so far for 1999) and almost 1000 by the Senate. It is not possible for a person to keep informed about this quantity of legislature–at least not by looking at the bills themselves. Many of the bills (such as S. 900) are actually many, many separate issues lumped together. Certainly, packaging some of these things together is an effective form of compromise–perhaps there is no other way to get some essential item through the legislative process other than packaging it with stuff that looks attractive to those that would normally oppose the item; however, I have become convinced that this technique is what leads to ‘Big Government’–the complex structure of regulations, exemptions, and favors that makes capitalism look bad. Mixed economy proponents unfairly wail “just think how cutthroat it would get without all these regulations!” yet the state of affairs is not a natural result of capitalism but of tampering with it.

As an example of my frustration: I decided to review S. 900 (among others) because it’s title “Financial Services Modernization Act of 1999” struck me as quite important. I was a little astonished about how primitive the bill numbering system is. There is no organization regarding type of bill (i.e. category such as ‘social security’, ‘banking’, ‘federal crime’, etc.) inherent in the way they are organized. That is, without doing a document search, I could not easily ascertain such things such as “what are all the bills that relate to the regulation of banking?” Furthermore, there was no apparent dependency hierarchy whereby one could determine (without studying the text of the bill itself) which laws this bill proposed to repeal or modify.

As I began reading the bill, the first item of interest appeared right away–repeal of the Glass-Steagall Act. It took an hour of research to figure out what precisely the Glass-Steagall Act is; however, I enjoyed that history lesson. I was immediately enthused about the prospect of cleaning out some of that ugly New Deal legislation, but my enthusiasm was quickly stifled by the magnitude of the bill to follow. Significantly, it did not seem to me to be that case that remainder of the bill deals solely with countering the effects of knocking down the wall between commercial banking and investment banking. Importantly, much of the bill makes great sense and seems necessary to prevent commercial banks from investing in ways that I would describe as fraud regardless of whatever legal ‘loopholes’ apparently allow such activities that this bill seems concerned with. But much of the bill seems out of place.

For instance, consider Sec. 304 Financial Information Privacy Protection Good privacy stuff, but it is quite independent of establishing the bounds of investment fraud. In fact, it seems to apply to any number of customer information settings. For instance the part which amends Sec. 1003 to “The Consumer Credit Protection Act” states (in part):

`(a) PROHIBITION ON OBTAINING CUSTOMER INFORMATION BY FALSE PRETENSES- It shall be a violation of this title for any person to obtain or attempt to obtain, or cause to be disclosed or attempt to cause to be disclosed to any person, customer information of a financial institution relating to another person—

`(1) by knowingly making a false, fictitious, or fraudulent statement or representation to an officer, employee, or agent of a financial institution with the intent to deceive the officer, employee, or agent into relying on that statement or representation for purposes of releasing the customer information;

`(2) by knowingly making a false, fictitious, or fraudulent statement or representation to a customer of a financial institution with the intent to deceive the customer into relying on that statement or representation for purposes of releasing the customer information or authorizing the release of such information; or

`(3) by knowingly providing any document to an officer, employee, or agent of a financial institution, knowing that the document is forged, counterfeit, lost, or stolen, was fraudulently obtained, or contains a false, fictitious, or fraudulent statement or representation, if the document is provided with the intent to deceive the officer, employee, or agent into relying on that document for purposes of releasing the customer information.

This is clearly anti fraud legislation that could be copied into one of thousands of bills (granted, the penalties for this fraud involving a ‘financial institution’ may be more severe); it should be dealt with independently of this particular bill (even if is an amendment to an existing act.) By making superbills, such as this one, when one strongly disagrees with portions of the bill but cannot convince others of the importance of these disagreements, his final recourse is either to accept what he disagrees with or vote against the bill. If he votes against it, in the eyes of the public he has voted against the entire bill when in fact, he may strongly support its primary intent. This is problematic for several reasons: it encourages persons in congress to let things slide through, it encourages persons opposed to the bill who know it will eventually pass to attempt to slide things through, and it hides the true context of the law from the public.

If I were a senator, for instance, I would oppose the bill as it stands for reasons not related to the primary intent of the bill. In Section 304, Amended Section 1003 (b) it states:

It shall be a violation of this title to request a person to obtain customer information of a financial institution, knowing or consciously avoiding knowing that the person will obtain, or attempt to obtain, the information from the institution in any manner described in subsection (a)

I reject this on the grounds that there is no place for such terminology as “consciously avoiding knowing” in criminal legislation. Certainly the request to obtain information in the manner prohibited by (a) could be stated as a violation; however–notions, belief and suspicions about the method of the party providing a service can not be included in legislation such as this. It is the onus of the actor, not the solicitor, to insure that such information be acquired legally.

Clearly, if the solicitor is not in a position to obtain the information at all, without the occurrence of a fraudulent act, then this could implicate the solicitor; however, the nature of this information is such that it can always be acquired legally, such as through the consent of the relevant financial institution customers. It is evasive to suppose that the introduction of a consideration for conscious states of knowing can ever be justly enforced. (Incidentally, I am aware of the parallels of this type of legislation with those that involve the buying of stolen commerce–and I have the same objections. Also, I am aware of the importance of the consideration of intent, a conscious state of knowing, in such instances as distinguishing murder from manslaughter; however, generally speaking, criminal law should focus on the actor—the one who commits the act of fraud in this case—and not attempt to further discourage the act by regulating activities which tend to encourage such acts—this is essential to maintaining both justice AND freedom) To be clear, my position is not that a violator of 1003 (b) is morally in the clear–my position is that a law that depends on states of knowing can not be justly enforced (or judged).

Secondly, Sec. 1003 (c) Nonapplicability to law enforcement agencies, directly implies that a law enforcement agency doing law enforcement business does have the legal right to obtain customer information BY FALSE PRETENSES. I am vehemently opposed to this ugly notion. Hopefully this aims at the specific instance of a law enforcement simulation of an attempt to illegally obtain information in order to verify financial institutions are complying with their requirements or to determine if some other party is selling the service of illegally acquiring information. If so this needs to be stated directly and not in an open-ended inference that the privacy constraints are nonapplicable to a law enforcement agency when it is operating “in connection with the performance of the official duties of the agency.” This type of immunative power begs to be abused by those on the hunt for drug dealers, black marketeers, and other tax evaders.

Incidentally, I was somewhat amused by SEC. 306. `Plain Language’ Requirement for federal banking agency rules. An excellent proposal to apply to all forms of legislation–particularly the one in which it was contained!

Well, I use these as examples to support my points that

  1. Presenting bills in a “legalistic” syntax does little to extract potential ambiguity and misinterpretation. Presenting these items in a logical, concise, and clear manner would be far more effective in insuring that the public as well as their representatives truly understand what they are voting about.
  2. Consolidation of congressional actions into “superbills” is a way in which government expands and which prevents the public from the proper perspective on his representatives’ stands on important issues.

In conclusion, I urge you to maintain attention of the following:

  1. The internet is giving rapid, broad exposure to the activities of the Federal Legislature. Please leverage off this fact by insuring that bills are framed in a manner that is easily accessible to all–including the form of syntax and avoidance of unnecessary detail.
  2. Urge that large legislative items be broken down into appropriately manageable bills instead of assembled under a single super-abstraction.
  3. Push for the advancement of legislative organization, including the categorization of bills and mapping of bill dependencies and derivatives, so that the interested public can easily identify bills of interest and relate them to the historical progression of federal law.
  4. Push for the consolidation of recurring themes in bills (not to be confused with the super-abstraction which I deplore) to simplify their expression and eliminate unnecessary redundancies.

I thank you in advance for your time and consideration of these matters. Please feel free to reply with any information you feel might be helpful in my attempt to become a member of the “involved” public.

Highest regards,

Jon E. Krutulis

How did that Financial Services Act work out anyway? At the time, I think I had some kind of delusion that this type of thoughtful communication would end up with Richard Lugar being so impressed that he would fly me to D.C. to discuss my new role in cleaning up politics. The response was pretty insulting actually – a form letter about the bill I mentioned with a booklet that included it’s complete text. Much like the probable fate of my journal, I imagine my letter was not actually read by anyone – perhaps scanned by some legal assistant who would rather move up by giving blowjobs.

jk

 

 

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