ESRA–the Environmental and Social Responsibility Amendment to the U.S. Constitution
Full Text of the ESRA [Note: the Constitution does not specify the length or form of Constitutional Amendments. With reactionary forces re-interpreting the Constitution to make corporations a person with rights while dismantling equal rights legislation when it applies to people of color and poor people, the only way to ensure that the intent of this proposed Amendment to the Constitution is protected is to spell it our in considerable detail. Obviously, over the course of the coming years there will be many changes made by legislatures seeking to achieve the ends of this amendment, so the wording and some of the details at this point are less important than its function to get a national conversation going about how to most effectively protect the earth, restore demoncracy and extend it to our economic lives. This is the needed conversation starter because it is bold and breaks to frame on what is “realistic” and what is not. Getting city councils, state legislatures and Congressional representatives to endorse it, along with religious, civic, and social change organizations, is an important step in forcing media and those politicians seeking our money and our votes to consider this way of thinking much more seriously. –Rabbi Michael Lerner for the Network of Spiritual Progressives www.spiritualprogressives.org ]
Article One: Money Out of Politics / The Pro-Democracy Clause
Honoring the struggles of much of the human race for democracy that have often brought significant advances in spreading the message that all human beings deserve respect, dignity, kindness, generosity and love, that each person is a sacred being, and that as such all deserve equal say in shaping the social, economic, political and environmental world in which we live, and that no one should by circumstance of greater wealth or economic power have a greater say than anyone else in shaping these policies, the Congress of the US shall take all necessary steps to ensure substantial democratic participation in shaping our economic and political lives, including but not limited to the following steps:
A. The rights protected by the Constitution of the United States are the rights of natural persons only .
Artificial entities (including corporations or any other entity that is not a human being) established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.
The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.
B. Money or other currency or the expenditure of money directly or indirectly shall not be considered a form of speech within the meaning of the First Amendment to the Constitution, and its expenditure in elections or the political process is subject to regulation by the Congress and by the legislatures of the several States.
C. Congress shall fund the campaign costs of all major candidates for the U.S. Presidency, including the campaign for the nomination of the major political parties, and for the U.S. House of Representatives and the U.S. Senate. No other source of money in elections shall be allowed and no direct or indirect expenditures shall be allowed from any individual, corporation, or organization except these Congressionally allocated funds. Congress shall develop procedures that prohibit any individual, corporation or organization from spending monies that would influence the outcome of these elections, and shall develop other legislation to eliminate the influence of money in politics and in influencing the legislative process. The maximum to be spent on these elections shall not exceed the amount actually spent in the 2000 elections for these offices, adjusted for inflation.
D. Each State legislature of the several states of the United States shall fund the campaign costs of all major candidates for governor and the state legislatures. No other source of money in elections shall be allowed and no direct or indirect expenditures shall be allowed from any individual, corporation, or organization except these allocated funds from each State Legislature. Each Legislature shall develop procedures that prohibit any individual, corporation or organization from spending monies that would influence the outcome of these elections, and shall develop other legislation to eliminate the influence of money in politics and in influencing the legislative process.
E. In all cases in this Amendment, “major” refers to any political party whose candidate for office has received at least 3% of the popular vote in one of the last 4 elections in the relevant electoral district or any candidate who can demonstrate at least 2% of support of his or her party in at least 5 independently taken polls taken at a time 6 months before the primary question or 3% of support in polls taken at a time at least 3 months before the general election in the relevant electoral district (s), or can produce signed petitions that the party or candidate be considered “major” for purposes of this particular election and signed by at least 1% of registered voters in the relevant electoral district. In the case of the presidential primaries, a candidate shall be considered major if she or he has received 3% support in at least 10 independent polls 6 months before the primary or 5% support 3 months before the primaries in at least 5 states, 4 of which must be in different sections of the country (the South, the Northeast, the Central States and the West) or present a petition to be considered a “major” candidate signed by at least 1% of registered voters in the party for which the candidate seeks a nomination, or 2% of registered voters for the general election at least one month before the general election.
F. Every state in the union shall create an initiative or referenda process so that ordinary citizens may put on the ballot proposed legislation or instructions to their state legislature with a maximum requirement of having 1% of that state’s voting citizens measured by the number of people who voted in the last statewide election. The Legislatures of the several states where an initiative process or voter referenda exist or will in the future be created shall provide equal funding to each side of the issues in contention in that referenda or initiative. All private monies from individuals, corporations or organizations (including those that come from outside the U.S.) shall be banned and it shall be illegal to spend monies to seek to influence the outcome of these initiative or referenda elections in the six months prior to the relevant election.
G. All major media (those which are read or listened to by over 5% of the voting population in any voting district) shall be required to give free and equal time to all major candidates for the office of President, the U.S. Senate, U.S. House of Representatives, state Legislatures and state governors. Advocates for any political, economic or social issue being debated in a political campaign shall similarly receive free and equal time in all major media in which these issues are being discussed or presented, and all major views shall be provided with this time (or in the case of print media, space) including those views popularly referred to as liberal, conservative, far right and far left, except views that include demeaning of a particular ethnic, national, religious, gender, sexual orientation, or racial grouping. In the last week before a primary or general election, both the candidates and the issues presentations shall be given free and equal prime time on all major media and high visibility in any print or electronic media. Congress shall pass whatever other legislation may prove necessary in the future to make sure that the American public has equal access to and exposure to the major alternative ways of thinking about the issues being debated in elections and in the legislative process at the national and state levels. Those who believe that their views have not been given a reasonable opportunity to be heard may sue in federal district courts and receive a trial by jury, and if the jury agrees that their position deserves to be heard by the public and has been prevented from having the public hear their views, the jury may require relevant media in the relevant electoral districts to provide them with up to 3 times the coverage that the major views have been given in the past elections in those districts for the next election.
H. Congress shall regulate the amount of money in the national elections and the State Legislatures shall regulate the amount of money in the state elections to ensure that the total spent in any given election shall not exceed the total amount (adjusted for inflation or deflation) spent in the 2000 elections.
I. There shall be no restriction on monies donated to any minor candidate until the point in which that candidate polls over 3% public support in their relevant electoral district or area (at which point they become “major candidates” in the terms of this amendment with all relevant privileges and restrictions). Congress shall develop legislation to prevent this exception from being used by the major candidates, parties or those who support their politics from using this clause to get around the restrictions on money in politics (e.g. by funding less well-known candidates who would be advocating for substantially similar views as the more popular candidates, and using this unlimited funding to advance the same or very similar worldviews, positions or policies).
Article Two: Corporate Environmental and Social Responsibility
A. Every citizen of the United States and every organization chartered by the U.S. or operating within the U.S. or promoting its products, services or ideas in the U.S. or any of its several states shall have a positive responsibility to promote the ethical, environmental, and social well-being of all life on the planet Earth and on any other planet or place in space with which humans come into contact.
This being so, corporations chartered by the Congress and by the several States, and any corporation operating within the US or promoting its products, services or ideas in the U.S., (even if chartered, located or operating from any place outside the U.S.) shall demonstrate the ethical, environmental, and social impact of their proposed activities at the time they seek permission to operate.
In addition, any such corporation, whether based in the U.S. or any other location, including both for profit and not-for-profit corporations, with gross annual receipts in excess of $50 million (adjusted for inflation or deflation with 2016 as base year) shall be required to obtain a new corporate charter every five years in order to preserve their status as a corporation, and this charter shall be granted only if the corporation can prove a satisfactory history of environmental, social, and ethical responsibility to an Environmental and Social Responsibility Panel (ESRP) of ordinary citizens who agree with the importance of judging a corporation’s environmental, social and ethical responsibilities by the criteria listed below.
Factors to be considered by the environmental and social responsibility panel (ESRP) in determining whether a corporation has met the environmental, social and ethical responsibilities necessary to have their charter renewed shall include but not be limited to:
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 being evaluated makes decisions that help ensure the resources of the earth are available to future generations.
2. The degree to which it pays a living wage (a wage sufficient to feed, clothe and provide comfortable housing, transportation, energy, child care or elder care, and education) to all its employees and the employees of any contractors with which it does business either in the US or abroad, and arranges its pay scale such that none of its employees or employees of contractors it works with 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 and benefits of its lowest full-time wage earners (and this shall apply to the pay of those in firms with which it contracts or sub-contracts); the degree to which it provides equal and adequate benefits including health care, child care, retirement pensions, sick pay, and vacation time to all employees; the degree to which it treats its part-time employees with pay and benefits and security sufficient to ensure them a living wage (sufficient to provide for that person’s basic food, clothing, shelter, medications, health care, child care or elderly care as necessary, and whatever else the panel deems to be basic necessities); 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 which include factors regarding human well-being, satisfaction and participation in work, and involvement in direct community service (volunteering time each week) 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. The degree to which it uses the threat of moving its assets, reducing its work force, or otherwise harming its employees and the community in which it functions as a way to impose cutbacks on previously promised benefits to its workers, or to get better tax deals from local or state or federal authorities or to get environmental or zoning restrictions lifted or weakly implemented, or to resist the organizing of a union, or to resist other community attempts to encourage the corporation to be more environmentally and socially responsible;
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 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, and demotes or otherwise penalizes workers who do not engage in this kind of behavior;
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 or services may be produced, sold, or advertised and/or the communities from which it draws raw materials.
7. When assessing the environmental and social responsibility 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 panel should also consider: the degree to which the financial institutions direct the flow of money to socially and/or environmentally useful activities, including non-profits serving the most disadvantaged of the society and including the financing of 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 engages in misleading advertising or hides the costs of its services in small print or engages in aggressive marketing of monies for loans or preys 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.
B. In assessing numbers 1-7 above, the ESRP (panel) 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) throughout the U.S. and the world.
The U.S. government shall supply funds to provide adequate means for the ESRP to do its investigations, including the hiring of staff needed to accumulate the relevant information and testimonies and to provide accurate and easy-to-understand information to the ESRP in its hearings and deliberations. The US government shall compensate members of the panel at a level comparable to the mean average of income in the region in which the deliberations of the panel takes place, or at the level of their current income, whichever is higher.
Each ESRP shall be chosen so as to be representative of the racial and class diversity of the U.S., with at least half of its members being people with incomes below the median average income in the US at that time and half above that median income, and shall be evenly divided between men and women. No potential panel member shall be excluded because of his/her political views. In addition, each panel shall, before hearing testimony specifically about the corporation whose charter renewal is being considered, receive a detailed briefing from an environmentally friendly organization about the current state of environmental degradation and what might be contributing to that process. Panel members may not have a financial stake in the corporation on whose future they are deliberating, nor have family members with that financial stake, and each panel member is precluded by law from receiving employment or any form of financial support or benefits from that corporation anytime during or after the panel’s operations for a period of ten years. Congress shall determine where the panel convenes, how the panel is chosen, and other issues that come up in making these panels effective, but shall not restrict the members of this panel from directing the actual process of accumulating information, participating in the examination of testimony at the hearing, publicizing their hearings to the public and opening them to those who wish to listen to the testimony, and explaining its decisions to the public. All decisions of this panel on both procedural and substantive questions, shall be decided by a majority vote of panel members.
Panelists shall be empowered to ask questions directly of witnesses and of the management or board of directors of the company seeking a charter renewal. Panelists shall have the ability to issue subpoenas for information relevant to the proceedings and funds to hire experts to explore particular issues bearing on the environmental and social responsibility of the particular corporation they are exploring. The panel shall also have funds available to hire experts to help them figure out what to do if they determine that they corporations does not meet the requirements to be judged environmentally and socially responsible, and community environmental organizations shall be free to provide information to the panel on the most talented environmentally sensitive experts available who agree with the intent of this Amendment.
If the ESRP is not satisfied with the level of environmental, social, and ethical responsibility in the corporation seeking a renewed corporate charter, it must either suspend the corporate charter or it may, by majority vote of the panelists, put the corporation on probation and prescribe specific changes needed. It may, for example, recommend the closing of some of the divisions of the corporation that are producing goods or services that could not, in the estimation of this panel, meet the criteria above for social, environmental and ethical responsibility. And/or it could prescribe a series of corporation-wide changes that, if implemented, would earn the corporation a renewal of its corporate charter. If the ESRP makes any decisions requiring changes in the operations of the corporation, it shall be reconvened again after three more years, and if the panel 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 ESRP, but with the condition that this new board must immediately implement the changes called for by the jury within two years time, or else the jury can reassign control of the corporation to yet another group of potential new board members who can demonstrate a commitment to environmental, social and ethical responsibility (as defined in the 7 points above) and an understanding of how to run a large corporation and retain as many of its employees as feasible. In the case where the changes needed in operation of the corporation results in loss of employment by more than 5% of the employees of that corporation, the U.S. government is mandated to provide those employees with a living wage for the next five years or as long as they remain unemployed (whichever is shorter) plus training in skills necessary to obtain future employment.
It shall be a federal crime for any individual or corporation to try to influence the decisions of this panel other than through presenting public testimony. Such crime shall be punishable by five years in federal penitentiary.
The Federal judiciary shall supply an experienced legal advocate and an experienced environmental advocate for the panel so that it can skillfully use its powers to get the information it needs to fulfill its mandate as guardian of the public’s interest in having corporations act in environmentally and socially responsible ways or lose their corporate charters.
Congress shall set up a procedure to appeal the decisions of this panel to the federal district court. In determining whether to uphold the decision of the panel, the district court and appellate courts cannot overturn the decision solely on the grounds that they would have come to a different decision. The decision of the panel will stand unless the corporation can prove by a preponderance of the evidence that the decision by the panel was fundamentally irrational and not based on what a rational environmentalist could come to. It is the intention of this Amendment to set a high bar for any court to overturn the ESRP decision by requiring that the court find the decision of the panel fundamentally irrational and not based on what a rational environmentalist could come to (and in reaching that decision, the federal judges at the district court, appeals court or Supreme Court shall consult with representatives of environmental organizations that have demonstrated a propensity to put environmental safety and sustainability above corporate profits). The decision of the panel shall be given great deference and can only be overturned by a unanimous opinion of the appellate court that the decision of the ESRP was outside the boundaries of what a rational panel would have decided.
C. Any corporation which seeks to evade this monitoring by breaking into several smaller corporations with incomes under $50 million a year shall face confiscatory level fines. Any person or corporation or other entity seeking to influence the members of any particular ESRP or their families or friends or employers or employees shall be deemed as violating the laws against jury tampering and shall be punished to the full extent of the law.
D. Any Federal, State, County or City government office or project receiving government funds that seeks to engage in a contract (with any other corporation or limited liability entity or private individuals) involving the expenditure of over $1,000,000.00 (adjusted annually for inflation) shall require that those who apply to fulfill that contract submit an Environmental and Social Responsibility Impact Report to assess the applicant’s corporate behavior in regard to the factors listed above in point A of Article II. Community stakeholders and non-supervisory employees may also submit their own assessment of that applicant’s history of environmental, social and ethical behavior by filling out the Environmental and Social Responsibility Impact Report. Contracts 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 and can fulfill it at an affordable cost to the government body offering 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 and pass legislation to enhance the environmental sustainability of human communities and the planet Earth, and shall present a report annually to the American people on progress made during the previous year in ameliorating any conditions deemed by an independent group of scientists to be adverse to the planet’s long-term environmental welfare. 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, rivers, lakes and streams, and supplies of water, and protect animal life. The President of the United States shall have the obligation to enforce such legislation and the power to develop executive policies to assure the carrying out of these objectives.
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, state, county or city funds shall provide education in reading, writing and basic arithmetic, and appropriate instruction in environmental and social responsibility, including at least one required course for all its students per year per grade level from kindergarten through 12th grade, and in any college, university or professional training institution receiving funding or financial aid or loan guarantees for its students. The education shall include teachings in the following areas:
1. the skills and capacities necessary to develop a caring society manifesting love, generosity, empathy, kindness, caring for each other and for the Earth, a non-utilitarian attitude toward other human beings and the ability to respond to the universe with awe and wonder, nonviolence in action and speech, skills for democratic participation including skills in how to change the opinions of fellow citizens or influence their thinking in ways that are respectful of differences and tolerant of disagreements, the valuing of time in life for rest and Sabbath (though without any link to a specific religion), inner reflection and meditation and celebration of all the goodness in life, the skills of repentance, forgiveness and compassion, and skills in organizing fellow citizens for nonviolent political action and engagement in support of causes not-yet-popular; and in
2. the appropriate scientific, ethical, and behavioral knowledge and skills required to be an informed citizen seeking to participate in policy decisions aimed at assuring the long-term environmental sustainability of the planet Earth, and to do so in ways that enhance the well-being of everyone on the planet.
Congress shall provide funding for such courses and funds to train teachers in these skills and provide funds for similar courses to be made available to the non-student populations in each state.
All such courses must teach caring not only for the people and economic, social and environmental well-being of the people of the United States, but also for the economic, social and environmental well-being of all the people on the planet Earth and the well-being of the planet as well.
Article Four: Fossil Fuels
The extraction of fossil fuels from the Earth has become a major source of environmental destruction.
Congress shall create a Department of Environmental Safety which shall have the power and adequate financing to support the development and adoption throughout the United States of alternative sources of energy at a pace sufficient to head off further destruction of the environment by the extraction and use of fossil fuels. The Department of Environment shall be empowered to visit any site in the U.S. or any site where proposed extraction of fossil fuels is or will be taking place, and close those sites that it deems destructive to the environment. The Department of Environment is also empowered to restrict the importing or use of fossil fuels, and shall do so at a pace appropriate for saving the environment from further destruction. While it is recognized that the transfer to other forms of energy may cause significant problems, the task of saving the environment must be treated as we would treat the spreading of a deadly disease, namely with all due speed. An important part of that is to switch the US from fossil fuels to significantly less environmentally destructive forms of energy. The Department of Energy shall be governed by a board of climate scientists none of whom have even been employed or received financial support from corporations involved in extraction or selling of fossil fuels, or corporations or non-profits that have received monies from those corporations, or otherwise provided support for “climate crisis” denial or other attempts to minimize the danger faced by climate change or environmental destruction of other sorts. This board shall be appointed from a list provided to the President by the scientific community. This Department of Environment shall fund the implementation of Articles two through five of this Amendment, and the implementation of major transitions in the way the US and companies operating in or selling products to the US operate and impact the environment, and shall fund research, new forms of environmentally safe energy, the construction of environmentally sound cities and means of transportation, and other projects deemed relevant to saving and protecting the environment and life support systems of the planet Earth. This Department of Environment shall receive funding equal to the military and intelligence budget in each year till the U.S. and the rest of the world are no longer significantly threatening the well being of the global environment.
Article Five: Implementation
A. Any corporation that moves or seeks to move its assets outside the U.S. must submit an Environmental and Social Responsibility Impact Report to a grand jury of ordinary citizens, and the jury shall 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 U.S. 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 U.S. to compensate those made unemployed or otherwise disadvantaged by the corporate move of its resources elsewhere, and/or to pay for other forms of environmental or social destruction of the resources or the well-being of the United States or its citizens. Conspiracy to evade this provision shall be a crime punishable by no less than twenty years in prison for all members of the board of such a corporation.
B. Any part of the Constitution or the laws of the U.S. or any of its states deemed by a court to be in conflict with any part of this amendment shall be null and void with regard to that part of its implementation which is inconsistent with this Amendment. Any trade arrangements, treaties, or other international agreements entered into by the United States or any of its several states, or by any corporation chartered or located in the U.S., deemed by a court to be in conflict with the provisions or intent of this amendment are hereby declared null and void. And similarly any such U.S. law or international agreement or law passed by any of the several states of the United States, or any decision of an international body or passed by an international court or legislature, deemed to be inconsistent with this Amendment shall be 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.
D. Elected members of Congress and/or elected members of the Legislatures of the States of the U.S., and public prosecutors at the Federal, State, County and City levels shall be deemed by U.S. courts as having standing to initiate a suit against any state or against the government of the U.S. or against any school system, court, legislative body or corporation that has taken actions deemed to contradict the intent of this Amendment to preserve the well-being of the planet earth and all of humanity and to foster a new spirit of cooperation, generosity and environmental sustainability.