The following is a memorandum from the Colorado Legislative Council and the Office of Legislative Legal Services commenting on our proposed initiative for the 2014 ballot, along with our notes from which we based our oral responses on Monday, July 22nd.
STATE OF COLORADO
Colorado General Assembly
Mike Mauer, Director
Legislative Council Staff
Colorado Legislative Council
029 State Capitol Building
Denver, Colorado 80203-1784
Telephone (303) 866-3521
Facsimile (303) 866-3855
TDD (303) 866-3472
E-Mail: lcs.ga@state.co.us
Dan L. Cartin, Director
Office of Legislative Legal Services
Office Of Legislative Legal Services
091 State Capitol Building
Denver, Colorado 80203-1782
Telephone (303) 866-2045
E-Mail: olls.ga@state.co.us
MEMORANDUM
July 19, 2013
TO: Robert Bows and Jason Bosch
FROM: Legislative Council Staff and Office of Legislative Legal Services
SUBJECT: Proposed initiative measure 2013-2014 #45, concerning the establishment of a state-owned bank
Section 1-40-105 (1), Colorado Revised Statutes, requires the directors of the Colorado Legislative Council and the Office of Legislative Legal Services to "review and comment" on initiative petitions for proposed laws and amendments to the Colorado constitution. We hereby submit our comments to you regarding the appended proposed initiative.
The purpose of this statutory requirement of the Legislative Council and the Office of Legislative Legal Services is to provide comments intended to aid proponents in determining the language of their proposal and to avail the public of knowledge of the contents of the proposal. Our first objective is to be sure we understand your intent and your objective in proposing the amendment. We hope that the statements and questions contained in this memorandum will provide a basis for discussion and understanding of the proposal.
Purposes
The major purposes of the proposed amendment to the Colorado constitution appear to be:
1. To make statements about the benefits of state-owned banks;
2. To require the state of Colorado to establish and operate a state-owned bank;
3. To specify the membership, appointment, and duties of a board of directors, an advisory board, and a president for the state bank;
4. To authorize the bank to lend money at interest or at no interest to promote development, commerce, industry, and agriculture in the state, to promote home ownership, maintenance and construction of needed infrastructure, education, public health, safety, and other purposes for the general welfare;
5. To specify that the bank has all the powers and authority of other banks chartered by the state of Colorado;
6. To specify that the debts and obligations of the bank are backed by the full faith and credit of the state of Colorado;
7. To specify that the revenue and income of the bank are not limited and its expenditures and management of its revenue, income, and assets are not restricted except upon sound financial and public policy considerations; and
8. To specify that the provisions of the proposed initiative are self-executing and severable and supersede conflicting state constitutional, state statutory, charter, or other state or local provisions.
RESPONSE: We are unclear as to the intent of this section, particularly given the strategy of those opposed to this amendment to characterize it as containing multiple subjects.
The sole purpose of this proposed amendment is to create an effective state bank. All details of the proposed amendment are in service to this sole purpose, despite subjective attempts to mischaracterize the nature of the proposed amendment, so as to disqualify it from consideration by the qualified electors of the state of Colorado.
Technical Comments
The following comments address technical issues raised by the form of the proposed initiative. These comments will be read aloud at the public meeting only if the proponents so request. You will have the opportunity to ask questions about these comments at the review and comment meeting. Please consider revising the proposed initiative as suggested below.
1. Under subsection (3) ("Term definitions."), paragraph (d) refers to the "sole purpose" of the proposed initiative "as stated in [sub]section (4) of the amendment," with a quoted passage. Since the quoted passage appears immediately below this reference, would it be preferable simply to cross-reference "the purpose (or purposes) stated in subsection (4) of this section" and omit the quoted passage?
RESPONSE: Good point. We have updated this as per your suggestion. See revised version of #45 here.
2. Internal cross-references such as the one on lines 5 and 6 of subsection (8) ("as noted in section (3) of this amendment, ... ") should be to a "subsection" rather than to a "section," as the proposed initiative itself is a "section" (i.e., section 22 of article X). Similarly, the references to "this amendment" should be changed to "this section."
RESPONSE: As per your suggestion, we have updated the following internal cross-references from "section" to "subsection" at:
• (3) (b) line 3,
• (3) (c) line 3,
• (3) (d) line 5,
• (4) line 15,
• (5) (f) line 2, and
• (8) line 5.
As per your suggestion, we have changed the references to this "amendment" to this "section" at:
• (2) line 1,
• (3) (b) line 3,
• (3) (c) line 3,
• (3) (d) line 5,
• (5) (a) line 2,
• (5) (f) line 2,
• (6) (c) line 10, and
• (8) line 13.
Substantive Comments and Questions
1. Article V, section 1 (5.5) of the Colorado constitution requires all proposed initiatives to have a single subject. What is the single subject of the proposed initiative?
RESPONSE: The implementation of an effective publicly owned state bank.
2. What sources did the proponents rely on for the factual statements in paragraph (b) of subsection (1) of the proposed initiative?
RESPONSE: The writings of Benjamin Franklin, Web of Debt by Ellen Brown, The Lost Science of Money by Stephen Zarlenga, the website of the Bank of Canada, the website of the Bank of North Dakota, and various other sources.
3. Paragraph (a) of subsection (3) ("Term definitions.") defines "sound banking practices" to exclude "the speculative and fraudulent practices of private for-profit banks."
a. Are there objective standards for determining what practices are "speculative" or "fraudulent"? For example, would an investment in soybean futures be considered "speculative," such that the state bank could not legally invest in soybean futures? If so, would the same standard apply to a loan to a soybean farmer for seed and fertilizer? Similarly, by "fraudulent," do you mean to refer only to practices for which a person or institution could be convicted of a crime or held liable for damages in a civil action? If so, "fraudulent" does not seem to add much to the analysis since private banks are rarely indicted for criminal fraud.
RESPONSE: Objective standards are generally no more than the standards instituted by the regime currently in power, the so-called rule of law serving as the judgment. Before determining a working definition of "speculative" and "fraudulent," it is first necessary to understand the power structure on this planet. We propose that the following article and research gives us a starting point:
Article: Andy Coghlan and Debora MacKenzie, "Revealed – the capitalist network that runs the world," New Scientist magazine (physics and math journal), October, 2011, http://www.newscientist.com/article/mg21228354.500-revealed--the-capitalist-network-that-runs-the-world.html
"The idea that a few bankers control a large chunk of the global economy might not seem like news to New York's Occupy Wall Street movement and protesters elsewhere. But the study, by a trio of complex systems theorists at the Swiss Federal Institute of Technology in Zurich, is the first to go beyond ideology to empirically identify such a network of power. It combines the mathematics long used to model natural systems with comprehensive corporate data to map ownership among the world's transnational corporations (TNCs)."
The above article is based on this research: Stefania Vitali, James B. Glattfelder, and Stefano Battiston (complex systems theorists at Swiss Federal Institute of Technology, Zurich), "The network of global corporate control," MIT Technology Review, The Physics arXiv Blog, http://arxiv.org/PS_cache/arxiv/pdf/1107/1107.5728v2.pdf
This power structure is further iterated in "Federal Reserve Directors: A Study of Corporate and Banking Influence. Staff Report,Committee on Banking,Currency and Housing, House of Representatives, 94th Congress, 2nd Session, August 1976." The report is 127 pages. http://www.scribd.com/doc/46627723/Federal-Reserve-Directors-A-Study-of-Corporate-and-Banking-Influence-Staff-Report-Committee-on-Banking-Currency-and-Housing-House-of-Representative
This control enables manipulation of currency, mortgages, bonds, and commodities, and the economies and political entities in which these assets are regulated and traded.
The following articles illustrate this pattern of fraud and speculation:
Why the Senate Won't Touch Jamie Dimon: How JPMorgan Props Up US Debt http://truth-out.org/news/item/9876-the-jpmorgan-derivatives-propping-up-us-debt-why-the-senate-wont-touch-jamie-dimon
Even before the Fed initiated its POMO (Permanent Open Market Operations) injections of outright treasury buys in a program euphemistically titled "Quantitative Easing 2" (a.k.a printing money out of thin air) the Fed's daily zero percent loans of taxpayer money to Goldman Sachs and J.P. Morgan were used almost exclusively to buy stocks -- and then sell them again within minutes or even seconds. http://www.opednews.com/articles/THE-U-S-STOCK-MARKET-IS-R-by-lila-york-101227-303.html
Hidden purchases of U.S. Treasury bonds http://georgewashington2.blogspot.com/2009/09/is-treasury-faking-foreign-purchases-of.html
Rigging of LIBOR: Barclays Settles Regulators' Claims Over Manipulation of Key Rates http://dealbook.nytimes.com/2012/06/27/barclays-said-to-settle-regulatory-claims-over-benchmark-manipulation/
The rigging of the municipal bond market: http://www.rollingstone.com/politics/news/the-scam-wall-street-learned-from-the-mafia-20120620#ixzz1yS3rPeCP
Baltimore sues Wall Street over bond rigging: http://www.baltimoresun.com/news/opinion/editorial/bs-ed-libor-20120716,0,968211.story
Oakland sues Goldman Sachs over interest rate swaps (derivatives) that it bought for protection and lost while the market was manipulated http://www.forbes.com/sites/halahtouryalai/2012/07/11/city-of-oakland-taps-occupy-wall-street-to-take-on-goldman-sachs/
Philadelphia sues banks, alleging antitrust violations http://www.law.com/jsp/pa/PubArticlePA.jsp?hubtype=ThisWeek&id=1202612875031&slreturn=20130629162925
Computerized Front Running: Another Goldman-Dominated Fraud. (How the banks’ computer read incoming orders and jump ahead of them to skim profits (from our pension funds, mutual funds, and 401ks) http://www.webofdebt.com/articles/computerized_front_running.php
After a fraud is discovered, banks, their corporations, and their vassal governments collude on fake settlements for which they are fined mills on the dollar; then, the pattern is repeated, thus fraud is the business model:
LIBOR investigation labeled whitewash before it begins. Labor MP launches own investigation. http://www.guardian.co.uk/business/2012/jul/13/libor-scandal-banking-inquiry-whitewash
Interest rate swaps: A fraud bigger than LIBOR http://www.rollingstone.com/politics/news/everything-is-rigged-the-biggest-financial-scandal-yet-20130425
50 states’ attorneys general pretend to resist MERS settlement and then settle for mills on the dollar. This fraud began with sub-prime mortgages, which were then securitized, banded together, and sold as legitimate investments. When the economy was brought down, these securitized mortgages were virtually worthless, and were repurchased for pennies on the dollar, or illegally seized by banks through rigged foreclosures. The MERS scam also allowed the banks to avoid filing fees to the counties, thereby illegally depriving them of billions of dollars. On top of all of this, there are legitimate legal grounds for claiming that the chain of title to 70 million mortgages has been broken. http://www.huffingtonpost.com/2012/01/12/attorney-general-foreclosure-settlement-eric-schneiderman-beau-biden_n_1202643.html
Top Justice Department Officials Work for the banks they are responsible for regulating http://www.reuters.com/article/2012/01/20/us-usa-holder-mortgage-idUSTRE80J0PH20120120
Stern words and a pea-sized fine for Google http://www.nytimes.com/2013/04/23/business/global/stern-words-and-pea-size-punishment-for-google.html (Fine equals two minutes of annual profit or 0.0002%)
Speculation: The same pattern is repeated for commodities
How Goldman Sachs manipulates the aluminum market: A Shuffle of Aluminum, but to Banks, Pure Gold http://www.nytimes.com/2013/07/21/business/a-shuffle-of-aluminum-but-to-banks-pure-gold.html
JPMorgan Agrees to Pay $410 Million in Power Market Manipulation Case http://dealbook.nytimes.com/2013/07/30/jpmorgan-to-pay-410-million-in-power-market-manipulation-case/
Wall St. Exploits Ethanol Credits, and Prices Spike www.nytimes.com/2013/09/15/business/wall-st-exploits-ethanol-credits-and-prices-spike.html
Additional frauds (added 11/6/2013 and following):
EU Oil Manipulation Probe Shines Light on Platts Pricing
Worldwide currency manipulation
For those keeping score: That means the world's key price benchmarks for interest rates, energy and currencies may now all be compromised.
b. Could this phrase ("the speculative and fraudulent practices of private for-profit banks") be interpreted to include any practice engaged in by a private bank, and, if so, could the exception swallow the rule?
RESPONSE: Not sure what is being asked. The rule is fraud, which includes speculation, but the two terms reveal the problem from different angles.
4. Subsection (4) says that the state bank is "not required" to join the Federal Deposit Insurance Corporation (FDIC). Could the state bank join the FDIC if it chose to do so?
RESPONSE: It would serve no purpose for the bank to join the FDIC (since sums in many of the publicly owned state bank’s accounts far exceed the limits of the deposit insurance being offered. Further, being insured by the FDIC (Federal Deposit Insurance Corporation) would actually be counter-productive, giving a private corporation ("Federal" notwithstanding, just like the federal in "Federal" Reserve System) regulatory oversight of this state function.
5. Subsection (4) also provides that the debts and obligations of the state bank are "backed by the full faith and credit of the state of Colorado ... ."
a. What is the intended effect of this provision?
RESPONSE: Continuing from the previous answer, this clause clarifies how the publicly owned state bank would be insured. Many, if not most, bodies corporate and politic are self-insured.
b. Does this provision give the state bank an advantage in competition with private banks? Does it provide any incentives for state bank managers to take unnecessary risks with state funds?
RESPONSE: Before specifically addressing the question, let's be clear, private banks do not believe in competition; they believe in monopoly. The banks have done everything in their power, legal and illegal, to maintain their monopoly for creating and regulating money and controlling and manipulating all related markets. This provision notes that a public body corporate and politic is backed by the people who comprise it. Most importantly, private banks do not provide the services needed by the state. If they did, Colorado would have low unemployment and a budget surplus, like North Dakota.
6. Subsection (5) requires that an election be held in an odd-numbered year to elect the board of directors. Is the election intended to be combined with the regular general election in November or is it to be held at another time? Are subsequent elections of board members intended to occur in November at the regular general election?
RESPONSE: Yes, that is the intent. We have added text to specify this in subsection (5) (b).
7. Paragraph (d) of subsection (5) requires the secretary of state to provide an automated online process for the candidates for the board of directors to list their qualifications. Is the general assembly required to appropriate moneys to pay for the development of the process, as part of the required funding of "elections" in paragraph (f) of subsection (5)?
RESPONSE: Yes, we believe we stated this in (5) (f).
8. Paragraph (e) of subsection (5) states that "the Secretary of State shall hold a run-off election ... ." Would it be more appropriate to direct the secretary of state to set an election, but have the election actually conducted by designated election officials?
RESPONSE: Yes. We have adjusted the text in (5) (f) to clarify this.
9. Are the candidates for the board of directors required to have any special experience or expertise in banking or finance? If so, who will establish the experience requirements?
RESPONSE: The candidates shall have the opportunity to state their experience as noted in (5) (d). The voters shall judge whether a candidate's experience is sufficient.
10. Colorado law currently provides a system for the protection of deposits of public moneys in financial institutions. Eligible public depositories must meet minimum requirements of Colorado law and have a designation as a public depository from the Colorado banking board and the commissioner of financial services in order to receive deposits of public moneys. See sections 11-10.5-101 through 11-10.5-112 and 11-47-101 through 11-47-120, Colorado Revised Statutes. Regarding this system:
a. What do the proponents intend with respect to Colorado's existing regulatory structure for public depositories if the proposed initiative is enacted by the people?
RESPONSE: All tax moneys and other liquid assets of the state shall be deposited in the publicly owned state bank and shall be self-insured.
b. Can the system continue to exist in its current form, or would it be necessary for the general assembly to change the system to account for the state depositing public money in its own bank?
RESPONSE: No change in current law is needed. The current law would continue to apply, except in the case of the publicly owned state bank, since this section supersedes current law wherever such law conflicts with this section.
c. Other than FDIC insurance and the Public Deposit Protection Act, article 10.5 of title 11, Colorado Revised Statutes, what protections would exist for deposits of public moneys in the Colorado state bank?
RESPONSE: Transparency of the bank’s financial records, the electorate’s power to replace the board of directors, and the full faith and credit of the citizens of Colorado shall serve as protection for the deposits.
11. The Bank of North Dakota has no formal regulatory oversight of its activities other than informational audits provided to the North Dakota Financial Services Commissioner. Do the proponents intend for there to be any regulatory oversight over Colorado's state bank other than the annual independent audit required under subsection (6) (b)?
RESPONSE: In addition to the independent audit, the electorate can replace the board. Also, the board could initiate additional oversight.
12. Subsection (7) of the proposed initiative calls for the top five operating officials of the bank to draft rules and regulations for the bank, subject to "consideration of recommendations by the advisory board" and "approval of the board of directors."
a. To what extent would the top five operating officials be required to consider the advisory board's recommendations, and what if the board of directors withheld its approval? Do you wish to add any sort of tiebreaker mechanism or standards for judicial review in case these entities could not agree on the rules?
RESPONSE: The advisory board’s recommendations are exactly that--advisory; in themselves, they possession no power to determine rules and regulations, other than by persuasion.
b. Do the proponents intend for the general assembly to have any control or veto power over these rules? If not, how would you address the contention that the delegation of authority to this small group of individuals, in derogation of the general assembly's plenary authority over taxing, spending, and appropriations under article V of the Colorado constitution, conflicts with article V or with the due process principles discussed in Cottrell v. Denver, 636 P.2d 703, 709 (Colo. 1981)?
RESPONSE: The general assembly shall have indirect influence on these rules through the nomination of the advisory board. Since the directors of the bank are elected in a manner similar to the general assembly, the authority vested in them in this section shall supersede any conflicting laws. Most importantly, it is worth noting that the income and spending of the bank are NOT derived from tax monies and, thus, are not "in derogation of the general assembly's plenary authority over taxing, spending, and appropriations." It's also worth noting that the state owns enterprises that are run independently of the general assembly.
13. Subsection (8) of the proposed initiative calls for the state bank to be capitalized using "any proceeds from taxes and other revenues and funds of the state, including other funds such as may be collected currently for the state by other banks, that are not otherwise obligated, ..."
a. Which of the state funds that are collected currently for the state by other banks are "otherwise obligated"? Do you wish to include standards and perhaps a timeline for determining how and when these obligations no longer exist, and when the state bank should receive these funds?
RESPONSE: The guidelines for funds can be complex. The standards of "not otherwise obligated" shall be determined by management and approved by the board of directors. As noted below, such a determination would become the bank's responsibility.
b. Current practice in Colorado requires the appropriation of the entire state treasury to pay the expenses of operating state government, and article X, section 16 of the Colorado constitution prohibits deficit spending. Therefore, how would surplus funds be available in the bank for lending for the purposes listed in subsection (4) of the measure?
RESPONSE: Some state funds are not spent to pay operating expenses; for example, the state's list of accounts includes long- and short-term investments, and various fund balances, including unrestricted funds balances.
14. Subsection (8) provides that the capitalization of the state bank "may include any proceeds from taxes and other revenues and funds of the state, ... if deemed necessary by the board of directors ... ." (Emphasis added.) Does this give the state, or the board of directors of the state bank, the discretion to allow some or all state funds to be deposited in private financial institutions rather than in the state bank?
RESPONSE: No, this allows the board to determine which funds are available, not where they are deposited.
15. Banking in the United States has generally been conducted as a private business activity. Even when the Bank of North Dakota was created, the state of North Dakota acknowledged it was creating an entity that would be conducting a private activity. See http://www.banknd.nd.gov. In fact, at the same election in which North Dakota voters approved creation of the bank, they also approved North Dakota entering into the grain storage/elevator business. The Colorado constitution contains a variety of provisions that prohibit the state from operating or participating in private businesses. Specifically, article X prohibits the state and local governments from contracting multi-year debt without voter approval. In view of the fact that banks are essentially debtors to their creditor depositors, would the proponents consider amending article X as necessary to permit the creation of multiple fiscal year obligations by the state bank under this proposed initiative?
RESPONSE: We would dispute the first sentence. The First and Second Banks of the United States were private, not public banks. The Federal Reserve System is also a privately owned system of banks. The original 13 colonies of the United States printed their own money and some had their own public banks, while others simply used their treasuries to perform certain functions of banks. The Continental Congress also printed its own money to fund the Continental Army. The British banks counterfeited this currency and also drove its value down through speculation, the same tactics they use today when attacking currencies. During President Lincoln’s tenure, the U.S. Treasury issued real U.S. dollars, called Greenbacks, and did so again briefly when President Kennedy revived Silver Certificates. Since the founding of the United States, there have been 140 years of privately controlled central banking and 137 years of publicly controlled central banking. If the colonial years are counted, the number of years of publicly controlled central banking exceeds the number of years of privately owned central banking.
The history of the United States (as well as other nations around the world) is a history of private banks using any means necessary to suppress public banking.
We would also dispute that private banking is a legitimate business activity, since, as we’ve noted, it’s business model is fraud, and its principal purpose is to steal the fruits of our labor, which as we’ve also noted, it has effectively done.
It is also incorrect to state that private banks are "debtors to their creditors depositors," since the banks have recently made it clear that they can seize these deposits. See:
The Battle of Cyprus: The Long-planned Deposit Confiscation Scheme http://www.opednews.com/articles/The-Battle-of-Cyprus-The-by-Ellen-Brown-130323-684.html
Derivatives Managed by Mega-Banks Threaten Your Bank Account. All Depositors, Secured and Unsecured, May Be at Risk http://www.globalresearch.ca/derivatives-managed-by-mega-banks-threaten-your-bank-account-all-depositors-secured-and-unsecured-may-be-at-risk/5330700
Depositors Beware: Bail-In Is Now Official E.U. Policy http://www.occupy.com/article/depositors-beware-bail-now-official-eu-policy#sthash.DftxLX42.dpuf
We would also note that it is unnecessary to amend article X, since this section (22) enables the publicly owned state bank to capitalize itself.
Finally, we would say that the limitation on the state engaging in private business is selectively interpreted and enforced. For example, the Colorado Department of Transportation is involved in road repair, which is an activity also done by private businesses. (It's worth noting that there are various sovereign functions that the U.S. Constitution specifically enumerates in Article I, Section 8 that are functions of the state, including roads, money, armed services, and postal services.) If such a provision, as you state it, were carried to the extreme, the state would have to turn over all its operations to the banks and their corporations. Again, it should be noted that private, for-profit banks do not provide the services of a publicly owned state bank.
16. The proposed initiative does not give anyone authority to acquire property for the bank. Who will be responsible for acquiring land, physical structures, and furnishings for the bank? Is the bank's primary office required to be in Colorado?
RESPONSE: The creation of operations by the state of Colorado have, in the past, assumed that the state provides the administrative means for such operations to function according to the provisions that establish them.
17. The proposal states that its provisions are "self-executing," but there is no regulatory or enforcement responsibility assigned to anyone other than the state bank's managers and board of directors.
a. Subsection (8) of the proposed initiative requires that other banks transfer any state moneys that they hold to the state bank within 10 working days after the state bank begins operation. If they fail to do so, who would enforce this requirement and how?
RESPONSE: Other provisions in Colorado law establish means for the state to enforce its laws. There is no need to duplicate these powers in this section.
b. Subsection (4) of the proposal says that the state bank's expenditures and management are not restricted "except upon sound financial and public policy considerations." How is this standard to be interpreted and enforced? Could a person sue in court to challenge a decision of the bank's managers as being contrary to a "sound" financial or public policy consideration? If so, would any Colorado taxpayer have standing to enforce this requirement? Could the general assembly enact a statute embodying the financial and public policy considerations by which the bank's managers should abide?
RESPONSE: It is our position that subsections (3) (a), (3) (c), and (4) set sufficient guidelines and that a statute enacted by the general assembly would not supersede these guidelines, which are to be implemented by the board of directors of the bank.
c. Would the state treasurer retain any discretion on what type of investment priorities to pursue when investing state funds? Or would such decisions be turned over to the state bank after it receives deposits of state funds?
RESPONSE: Just as in North Dakota, the treasurer and his/her staff would work in cooperation with the publicly owned state bank of Colorado. By law, all moneys collected by the state would be deposited in the bank, which would be responsible for the state’s banking services. The treasurer would remain responsible for collecting these moneys, disbursing them as directed by the legislature, and accounting for the entirety of these transactions, EXCEPT:
• Where these moneys are associated with the bank and its operations;
• Where it has been determined that certain funds are "unobligated" and available for the capitalization of the bank; and
• Where the investment of reserves and surpluses are concerned, which would now be the responsibility of the bank, since it has a means to generate income for the state that far exceeds the return-on-investments by the treasurer in any state except North Dakota, as well as the ability to borrow from the Fed (as does the Bank of North Dakota) at a much lower rate than the state.
Copyright 2013, Robert Bows
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