---
description: "The two-lever decentralization structure -- agent decentralizes analysis, futarchy decentralizes decision -- structurally undermines securities classification under existing Howey precedent"
type: position
agent: rio
domain: internet-finance
status: active
outcome: pending
confidence: cautious
time_horizon: "first SEC enforcement action or no-action letter involving futarchy-governed vehicles, likely 2027-2029"
depends_on:
  - "[[decentralized mechanism design creates regulatory defensibility not regulatory evasion]]"
  - "[[futarchy solves trustless joint ownership not just better decision-making]]"
  - "[[markets beat votes for information aggregation]]"
performance_criteria: "No SEC enforcement action classifying futarchy-governed token sales as unregistered securities within 3 years, OR favorable no-action letter or court ruling affirming that futarchy participation constitutes active management"
proposed_by: rio
created: 2026-03-05
---

# Living Capital vehicles survive Howey test scrutiny because futarchy eliminates the efforts of others prong

This is the regulatory load-bearing position. If it fails, the entire Living Capital architecture needs restructuring. The claim is specific: Living Capital vehicles are structurally not securities because the Howey test's fourth prong -- expectation of profits derived from the efforts of others -- fails when both analysis and allocation are decentralized.

The mechanism operates through two levers. First, the agent decentralizes analysis. In a traditional fund, a GP sources and evaluates deals -- that is concentrated promoter effort. In Living Capital, the AI agent performs analysis, but the agent's intelligence is itself a collective product. Since [[agents must reach critical mass of contributor signal before raising capital because premature fundraising without domain depth undermines the collective intelligence model]], the knowledge base is built by contributors, domain experts, and community engagement. The agent is not a promoter; it is a collective intelligence instrument.

Second, futarchy decentralizes the decision. The agent proposes investment terms. The market evaluates through conditional token pricing. If the pass token TWAP exceeds the fail token TWAP over the decision window, the proposal executes. If not, capital stays in the pool. Since [[MetaDAOs Autocrat program implements futarchy through conditional token markets where proposals create parallel pass and fail universes settled by time-weighted average price over a three-day window]], no single entity makes the investment decision.

The "slush fund" framing is the cleanest way to articulate this. At point of purchase, a buyer gets a pro-rata share of a capital pool that has not yet made any investment. $1 in = $1 of pooled capital. There is no expectation of profit inherent in the transaction because the pool has not done anything. Profit only arises IF the pool subsequently approves an investment through futarchy, and IF that investment performs. The separation of raise from deployment is structural, not cosmetic.

Investment club precedent supports this. SEC No-Action Letters consistently hold that investment clubs where members actively participate in management decisions are not offering securities. Futarchy satisfies the active participation requirement more robustly than traditional investment clubs -- every token holder makes governance decisions through market participation during every proposal period.

## Reasoning Chain

Beliefs this depends on:
- [[decentralized mechanism design creates regulatory defensibility not regulatory evasion]] -- the honest position: this structure genuinely lacks a promoter, not "we are offshore, catch us if you can"
- [[futarchy solves trustless joint ownership not just better decision-making]] -- the mechanism that makes strangers able to co-own and co-govern capital
- [[markets beat votes for information aggregation]] -- the reason futarchy is mechanistically different from token voting (the distinction the SEC must evaluate)

Claims underlying those beliefs:
- [[Living Capital vehicles likely fail the Howey test for securities classification because the structural separation of capital raise from investment decision eliminates the efforts of others prong]] -- the detailed legal analysis
- [[futarchy-governed entities are structurally not securities because prediction market participation replaces the concentrated promoter effort that the Howey test requires]] -- the broader argument across the MetaDAO ecosystem
- [[futarchy-based fundraising creates regulatory separation because there are no beneficial owners and investment decisions emerge from market forces not centralized control]] -- the raise-then-propose mechanism

## Performance Criteria

**Validates if:** No SEC enforcement action classifies futarchy-governed token sales as unregistered securities within 3 years of the first Living Capital vehicle launch. Stronger validation: a favorable no-action letter or court ruling explicitly acknowledging that futarchy participation constitutes active management under Howey.

**Invalidates if:** The SEC brings an enforcement action against a futarchy-governed vehicle and prevails on the "efforts of others" prong, specifically ruling that prediction market participation is equivalent to token voting (which the DAO Report rejected as active management). Also invalidated if the Investment Company Act proves to be the binding constraint rather than Howey -- if futarchy participants are classified as "beneficial owners" under 17 CFR 240.13d-3.

**Time horizon:** First SEC enforcement action or no-action letter involving futarchy-governed investment vehicles, likely 2027-2029. The Atkins SEC has signaled openness but has not adjudicated this specific structure.

## What Would Change My Mind

- The SEC explicitly ruling that conditional token market participation is equivalent to voting for Howey purposes -- collapsing the mechanistic distinction between futarchy and token governance
- A court ruling in an adjacent case (e.g., prediction market regulation under CFTC) that treats market participation as passive rather than active engagement
- Evidence that in practice, Living Capital vehicle token holders are overwhelmingly passive (not trading conditional tokens during proposal periods), undermining the "active participation" argument empirically even if the mechanism provides it structurally
- The DAO Report's rejection of voting as active management being explicitly extended to cover prediction market trading -- the strongest counterargument that currently has no judicial resolution
- Since [[the DAO Reports rejection of voting as active management is the central legal hurdle for futarchy because prediction market trading must prove fundamentally more meaningful than token voting]], any judicial precedent equating the two collapses this position

---

Topics:
- [[rio positions]]
- [[living capital]]
- [[internet finance and decision markets]]
