A constitutional agenda for the “Occupy” protesters
The “Occupy Wall Street” movement, a month-old but rapidly spreading form of citizens’ protest that sees itself as the representative of the 99 percent of global society that it says lacks financial power, does not have a set of beliefs or goals on which all of its adherents can agree. The New York Times, for example, has suggested that its followers are pursuing “a melange of disparate causes.”
But some who are asserting intellectual leadership in the movement, like Rabbi Michael Lerner of Tikkun magazine, are urging support for an amendment to the U.S. Constitution — the “Environmental and Social Responsibility Amendment.” As the rabbi summed up its key provision in the October online issue of his magazine, “We want to require corporations to get a new corporate charter once every five years which they can only get if they can prove a satisfactory history of environmental and social responsibility to a jury of ordinary citizens.”
There is much else in the proposed language of the amendment, which runs to hundreds of words, but a primary focus is its frontal challenge to the role of corporations in American and global life. For example, its Article One, titled “the Pro-Democracy Clause,” is founded mainly upon resentment of the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, finding a broad First Amendment right of corporations to spend as much as they wish to try to influence presidential and congressional elections.
The suggested Article One would specify that corporations are not “persons” protected by the Constitution’s Fourteenth Amendment, and it would declare that “money or other currency shall not be considered a form of speech within the meaning of the First Amendment.” The anti-”persons” provision is challenging a theory of corporate “personhood” that the Supreme Court actually accepted in 1886, and has never abandoned. The challenge to money-as-speech is a direct assault on a 1976 Supreme Court decision, Buckley v. Valeo, recognizing that First Amendment theory.
The proposal’s most aggressive threat to corporations as they now operate is its Article Two, titled “Corporate Environmental and Social Responsibility.” Its target is any corporation, based in the U.S. or elsewhere, that takes in more than $100 million a year in revenue or reaches more than a million U.S. citizens. Each such firm must apply for a new U.S. corporate charter every five years.
To get such a charter, the corporation would have to convince 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.” While thus local in its origins, this apparently would be a national instrument, since the federal government would be required to pay for its operations, and would have a duty to prosecute anyone who refused to supply information demanded by the grand jury.
The new charter could be issued only if the grand jurors were satisfied that the corporation had not caused harm to natural resources, had not paid its workers sub-standard wages, had not helped out the communities where its employees live, had not allowed its workers to have a voice in management, had not treated its employees and customers with care for their well-being, and had not made investment decisions harmful to those with whom it has dealt.
This, of course, would be a sharp break with long-standing corporation law. Corporations, by and large, now get their charters from state governments, and must abide by the limits imposed in those states by their charters. Naturally, it would take a federal constitutional amendment to shift this duty to the national government; otherwise, the idea would seem to violate the Tenth Amendment.
At this point, it appears that the proposed document not only serves as a political rallying point for the new movement, but as an attempt to satisfy some of its social critics, who have complained that the movement has no direction or goals other than civic disruption.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.