Tikkun Magazine, September/October 2010
ESRA: Environmental and Social Responsibility Amendment to the U.S. Constitution
Since the Supreme Court's Citizens United decision in 2010 enabled unlimited funding of U.S. elections by corporations, there has been some—but not nearly enough—discussion about how to reverse the appalling effects this will have on our democracy and our world. Some believe that legislation can do it. Many progressives are convinced a constitutional amendment is the only way because the current Supreme Court, which is the most right-wing court of the past seventy years, would likely declare any legislation unconstitutional. After the British Petroleum (BP) contamination of the Gulf of Mexico and the defeat by Congress of comprehensive legislation to lower carbon emissions, the urgent necessity for a comprehensive constitutional amendment requiring corporate environmental and social responsibility has become even clearer.
We invite you to read our Environmental and Social Responsibility Amendment (ESRA) and to review the accompanying Q&A to understand why we have gone further than other amendments proposed to deal with the core problems of corporate power and the need for environmental responsibility. The Q&A explains why we chose the approach we did in the details of this amendment (including why it is so long and so technical).
We also invite other organizations to join us in coalition to cosponsor the ESRA, and we in turn will support any more narrowly focused amendments that would simply overturn the Citizens United decision of the Supreme Court.
A campaign for an amendment requires a huge expenditure of energy over the course of many, many years. If we are to do that, why not use that energy to put forward an amendment that would actually achieve the goal of enhancing the power of ordinary Americans in elections and would make a substantial advance in protecting the environment? Linking environmental concerns and concerns to enhance democratic rights of all our citizens could generate the kind of broad support necessary to win a campaign that would make our planet safer and our democratic rights more secure.
We believe that even if our arguments don't yet persuade you, the events of the coming years will do so. We urge you to read the ESRA in full. And we'd like to invite you to join the Network of Spiritual Progressives, which will be spearheading the campaign, and to help us get endorsements from religious institutions, NGOs, your political party, your local community organizations, your college or university, your professional organizations, and your local and federal elected officials and candidates for office—and send that information to us at firstname.lastname@example.org.
The intent of the framers of this amendment is to accomplish the following:
- Protect the planet Earth and its inhabitants from environmentally destructive economic arrangements and behavior and increase environmental responsibility on the part of all corporations and government bodies.
- Increase U.S. citizens' democratic control over American economic and political institutions and ensure that all people, regardless of income, have the same electoral clout, influence, and power to shape ourgovernment's policies and programs.
- Promote the well-being of the citizens of the United States by creating new checks and balances to ensure that public policy at every level of government reflects the recognition that our well-being depends on the well-being of the planet and all its inhabitants, and to recognize that our well-being in the United States urgently requires an end to global poverty, wars (under any name or formulation that involves the use of violence), and both overt and institutional violence and also depends on the rise of a new global ethic of genuine caring and mutual interdependence.
Article One: The Pro-Democracy Clause
A. The First and Fourteenth Amendments to the U.S. Constitution shall apply only to human beings, not to corporations, limited liability associations, and other artificial entities created by the laws of the United States.
B. Money or other currency shall not be considered a form of speech within the meaning of the First Amendment to the Constitution, and its expenditure is subject to regulation by Congress and by the legislatures of the several states.
C. Congress shall regulate the amount of money used to disseminate ideas or shape public opinion in any federal election in order to assure that all major points of view regarding issues and candidates receive equal exposure to the greatest extent possible. Congress shall fund all major candidates for the House, Senate, and presidency in all major elections and in primaries for the nomination for president by major parties (those which have obtained at least 5 percent of the vote in the last election for president) or any party that can obtain the signatures of at least 5 percent of the relevant electorate for any given office who are not already registered voters of another party.
D. In the two months prior to a primary for those seeking a national office, and for the three months prior to any general election for a national office (the presidency, the House of Representatives, or the U.S. Senate), all media or any other means of mass communication reaching more than 300,000 people shall provide equal time without charge to all major presidential candidates to present their views for at least an hour at least once a week, and equal time at least once every two weeks for congressional and senatorial candidates, during that media agency's prime time (when it is most widely listened to or viewed). The candidates shall determine the form and content of that communication. Print media reaching more than 300,000 people shall provide equal space in the news, editorial, or most frequently read section of the newspaper or magazine or blog site or other means of communication that may be developed in the future. During the three months prior to an election, no candidate, no political party, and no organization seeking to influence public policy may buy time in any media or form of mass communication or any other form of mass advertising, including on the Internet. Major candidates shall be defined thus:
1. Those who have at least 5 percent of support as judged by the average of at least ten independent polling firms, at least two of which are selected by the candidates deemed "not major," three months before any given election.
2. Or any candidate who can collect the signatures of 5 percent of the number of people who voted in the primary for their party's nomination election, when considering primary elections, and, when considering general elections, any candidate who receives signatures of 5 percent of the number of people who voted in the general election for that office the last time that office was contested. These petitions can only be signed by people eligible to vote in the relevant electoral districts and by people who are not registered voters in another political party. Every state shall develop similar provisions aimed at allowing candidates for governorships and state legislatures to be freed from their dependence on wealthy donors or corporations.
E. In the two months prior to any primary election for national office and in the three months prior to any general election for national office, no political party or any other organization or individual may use private money (that is, money not supplied by the government) for the purpose of supporting a political candidate, political party, or point of view closely associated with a given party or candidate. However, in recognition that the existing major parties (those that have received at least 20 percent of the vote in the last election for whatever particular office is now up for election) have already had extensive opportunities to get their voices heard, while minor parties or candidates have not had an equal opportunity in large part because of scarcity of funds or scarcity of opportunity to present their views to the public, these non-major parties and candidates are freed from the restrictions to spend private monies, with the following considerations:
1. No individual or group may donate more than $1,500 to any candidate or party.
2. No profit-oriented corporation, or nonprofit that is identified with the interests of any for-profit corporation or group of for-profit corporations or organizations may donate to these minor parties or candidates, directly or indirectly, under the terms of this clause, Article One, Section E.
3. Courts shall interpret this provision broadly to ensure that individuals, groups, organizations or corporations whose actual intention is to protect the interest of the rich and the powerful shall not be able to spend monies to disproportionately influence the outcome of elections or public policy debates.
Iraqi demonstrators in 2004). Is this what the American empire has come to: corporations fighting wars for corporate interests? AP PHOTO/GERVASIO SANCHEZ.
Article Two: Corporate Environmental and Social Responsibility
A. Every citizen of the United States and every organization chartered by the United States and/or by any of its several states, and any corporation doing business in the United States shall have a responsibility to promote the ethical, environmental, and social well-being of all life on the planet Earth.
This being so, corporations chartered by Congress and/or by the several states shall demonstrate the ethical, environmental, and social impact of their proposed activities at the time they seek permission to operate.
In addition, any corporation operating within the United States, whether based in the United States or in any other location, or operating through electronic or other means of global or local communication reaching more than one million citizens of the United States, or with yearly gross receipts in excess of $100 million, shall obtain a new corporate charter (or if chartered outside the United States, permission to operate within the United States or to communicate directly or indirectly to U.S. citizens with the intent of selling products or services or with the intent of influencing public opinion or government policies) every five years. This charter (or permission, in the case of a corporation chartered or licensed by a country other than the United States) shall be granted only if the corporation can prove a satisfactory history of environmental, social, and ethical responsibility to a grand jury of ordinary citizens chosen at random from the voting rolls of the U.S. city or town in which the greatest number of corporate employees work.
Factors to be considered by the grand jury in determining whether a corporation will be granted a charter shall include but not be limited to the following:
1. The degree to which the products produced or services provided are beneficial rather than destructive to the planet and its oceans, forests, water supplies, land, and air, and the degree to which the corporation's decisions help ensure that the resources of the earth are available to future generations.
2. The degree to which it pays a living wage to all its employees and the employees of any contractors with which it does business, either in the United States or abroad, and arranges its pay scale such that none of its employees or contractors or members of its board of directors or officers of the corporation earn (in direct and indirect benefits combined) more than ten times the wages of its lowest full-time wage earners; the degree to which it provides equal benefits including health care, child care, retirement pensions, sick pay, and vacation time to all employees; the degree to which its employees enjoy satisfactory safety and health conditions; and the degree to which it regularly adopts and uses indicators of its productivity and success that include factors regarding human well-being, satisfaction and participation in work, and involvement in community service by its employees and members of its top management and board of directors.
3. The degree to which it supports the needs of the communities in which it operates and in which its employees live, including the degree to which it resists the temptation to move assets or jobs to other locations where it can pay workers less or provide weaker environmental and worker protections.
4. The degree to which it encourages significant democratic participation by all its employees in corporate decision making; the degree to which it discloses to its employees and investors and the public its economic situation, the factors shaping its past decisions, and its attempts to influence public discourse and public policies; and the degree to which it follows democratic procedures internally.
5. The degree to which it treats its employees, its customers, and the people and communities in which it operates with adequate respect and genuine caring for their well-being and rewards its employees to the extent that they engage in behaviors that manifest genuine caring, respect, kindness, generosity, and ethical and environmentally sensitive practices.
6. The degree to which its investment decisions enhance and promote the economic, social, and ethical welfare, and physical and mental health and well-being of the communities in which its products may be produced, sold, or advertised, and/or the communities from which it draws raw materials.
7. In the case of banks, stock markets, investment firms, and other corporations whose activities include the lending or investing of monies, in addition to the issues 1-6 above, the degree to which the financial institution directs the flow of money to socially and/or environmentally useful activities, including supporting nonprofits serving the most disadvantaged of the society, and including financing local business cooperatives and local community banks and to support low-income and middle-income housing with affordable mortgages rather than directing the money to speculators in finance, real estate, or other commercial activities; the degree to which it forgives loans previously given to poverty-stricken countries; the degree to which it refrains from engaging in misleading advertising or hiding the costs of its services in small print or language not readily understood by many consumers, and refrains from engaging in aggressive marketing of monies for loans or preying on the most economically vulnerable; the degree to which it offers no-interest loans to those with incomes below the mean average income in the society; and the degree to which it seeks to directly fund socially useful projects and small businesses.
In making these determinations, the jury shall solicit testimony from the corporation's board of directors, from its employees, and from its stakeholders (those whose lives have been impacted by the operations of the corporation) in the United States and around the world. The U.S. government shall supply funds to provide adequate means for the jury to do its investigations, to hire staff to do relevant investigations, and to compensate jurors at a level comparable to the mean average income in the region in which the deliberations of the jury take place, or at the level of the jurors' current income, whichever is higher. The jury shall also have the power to subpoena witnesses and documents or other information relevant to the proceedings, and the U.S. government shall prosecute any who refuse to supply relevant information reasonably connected to the jury's task of assessing corporate environmental and social responsibility.
If the grand jury is not satisfied with the level of environmental, social, and ethical responsibility demonstrated by the corporation, it may put the corporation on probation and prescribe specific changes needed. If after three more years the jury is not satisfied that those changes have been adequately implemented, the jury may assign control of the board and officers of the corporation to non-management employees of the corporation and/or to its public stakeholders and/or to another group of potential corporate directors and managers who seem most likely to successfully implement the changes required by the jury, but with the condition that this new board must immediately implement the changes called for by the jury within two years' time, or the jury can reassign control of the corporation to another group of potential board members.
B. Any government office or project receiving government funds that seeks to engage in a contract (with any other corporation or limited liability entity) involving the expenditure of over $100,000 (adjusted annually for inflation) shall require that those who apply to fulfill that contract submit an Environmental and Social Responsibility Impact Report, which will be used to assess the applicant's corporate behavior in regard to the factors listed above in Section A of Article Two. Community stakeholders and nonsupervisory employees may also submit their own assessments by submitting their own Environment and Social Responsibility Impact Reports to the governmental agency granting the contract. The contract shall be rewarded to the applicant with the best record of environmental and social responsibility that can also satisfactorily fulfill the other terms of the contract.
Article Three: The Positive Requirement to Enhance Human Community and Environmental Sustainability
A. Earth being the natural and sacred home of all its peoples, Congress shall develop legislation to enhance the environmental sustainability of human communities and the planet Earth. The objectives of such legislation shall include but not be limited to alleviating global warming, reducing all forms of pollution, restoring the ecological balance of the oceans, and assuring the well-being of all forests and animal life. The president of the United States shall have the obligation to enforce such legislation and to develop executive policies to assure that its objectives are carried out.
B. In order to prepare the people of the United States to live as environmentally and socially responsible citizens of the world, and to recognize that our own well-being as citizens of the United States depends upon the well-being of everyone else on Earth and the well-being of this planet itself, every educational institution receiving federal funds, whether directly or through the several states, shall provide education in reading, writing, and basic arithmetic, and appropriate instruction including at least one required course, for all its students, per year per grade level from kindergarten through twelfth grade and in any college receiving funding or financial aid or loan guarantees for its students, in the following:
1. The skills and capacities necessary to develop a caring society manifesting love; generosity; kindness; caring for each other and for the earth; joy; rational and scientific thinking; nonviolence; celebration; thanksgiving; forgiveness; humility; compassion; ethical and ecological sensitivity; appreciation of humanity's rich multicultural heritage as expressed in literature, art, music, religion, and philosophy; nonviolence in action and speech; skills for democratic participation, including skills in changing the opinions of fellow citizens or influencing their thinking in ways that are respectful of differences and tolerant of disagreements; and skills for organizing fellow citizens for nonviolent political action and engagement in support of not-yet-popular causes.
2. The appropriate scientific, ethical, and behavioral knowledge and skills required to assure the long-term environmental sustainability of the planet Earth in ways that enhance the well-being of everyone on the planet.
Congress shall provide funding for such courses in all educational institutions receiving public funds or loans or loan guarantees for students and shall provide funding for similar courses to be made available to the nonstudent populations in each state.
The measurement of student progress in the areas covered by points 1 and 2, such as artistic and musical skills, are difficult or impossible to measure quantitatively. That being the case, educational institutions supported directly or indirectly by public funds shall develop subtle and appropriate qualitative methods of evaluating adequate progress on the part of students in the areas specified-methods that contribute to and do not detract from students' ability to love learning and that enhance their capacities to cooperate rather than compete with their fellow students in the process of intellectual and emotional growth. Teachers shall be funded to learn the skills described in sections A and B and the methods of evaluation appropriate to this kind of values-oriented subject matter.
Article Four: Implementation
A. Any corporation that moves or seeks to move its assets outside the United States must submit an Environmental and Social Responsibility Impact Report to a grand jury of ordinary citizens, and the jury shall similarly receive testimony from other stakeholders and the employees of the corporation in question to determine the impact of the moving of those assets outside the United States. The jury shall then determine what part of those assets, up to and including all of the assets of the corporation, shall be held in the United States to compensate those made unemployed or otherwise disadvantaged by the corporate move of its resources, and/or to compensate for other forms of environmental or social destruction of the resources or well-being of the United States and its citizens.
B. Any part of the Constitution or the laws of the United States or any of its states deemed by a court to be in conflict with any part of this amendment shall be null and void. Any trade arrangements, treaties, or other international agreements entered into by the United States, its citizens, or its several states, deemed by a court to be in conflict with the provisions or intent of this amendment are hereby declared null and void.
C. Congress shall take action to provide adequate funding for all parts of this amendment and implement legislation that seeks to fulfill the intent as stated above.
Source Citation: Network of Spiritual Progressives. 2010. Title. Tikkun 25(5): 33