We have been talking about a constitutional amendment along the lines of movetoamend.org which is advocating a constitutional amendment which would seek the following:
"We, the People of the United States of America, reject the U.S. Supreme Court's ruling in Citizens United, and move to amend our Constitution to:
* Firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.
* Guarantee the right to vote and to participate, and to have our vote and participation count.
* Protect local communities, their economies, and democracies against illegitimate "preemption" actions by global, national, and state governments."
In addition there is a need to get money out of politics namely the money that goes into lobbying and political campaigning.
Frank Thomas wrote the following:
Sorry I've been out of commission as we took some vacation time and had a 10 day visit by a dear friend from Connecticut whose husband suddenly passed away not long ago. Thanks much for keeping me informed of your give and take on the A Code for Corporate Citizenship constututional amendment idea.
Regarding this effort, American corporate law is caught up in the normative consensus that the shareholder-centered corporate goverance model offers greater efficiencies in a growing world network of corporate intermediaries . A standard questionable argument is that the interests of other participants in the firm or nonshareholder constituencies such employees, customers, creditors, merchants in a firm's local community, extended interests of those concerned about a well-preserved environment can be best protected by existing efficacious legal mechanisms outside corporate law. For workers, this embraces antidiscrimination law, health and safety law, pension law, labor contracting law. For consumers, it includes product safety regulation, antitrust law, warranty law, tort law governing product liability, mandatory disclosure of product contents, performance specifications, etc. For the general public, it includes environmental law, mass torts, and nuisance law. The argument is that investor rights cannot be well-protected by contract but only by having exclusive, strong control and representation rights.
In contrast, Germany and the Netherlands have adopted stakeholder models that include investors and worker representatives in the board of directors, while also protecting societal and corporate interests through similar contract and regulatory law devices noted above. For example, German law allows workers to elect representatives for almost half of the supervisory board of directors. This applies to public and private firms with 2000 or more employees. In addition, employees in Germany and the Netherlands are entitled to elect a works council (Betriebsrat) according to the Industrial Constitution Act. The employer is not active in this election process but is responsible for all costs that arise through the works council. Each plant with more than 5 employees must have a works council.The council represents employees' interests as distinct from that of the employer and trade unions. It also has rights in dismissal and recruitment as well as codetermination on issues not regulated by law or collective agreements.
This practice has been in place for many years and insures rather stable and productive worker participation in corporate affairs without unduly paralyzing or damaging management and board decision making. It has enabled Germany to have +-20% of its workforce in high-value added manufacturing vs. less than 8% in the U.S.
One U.S. version of this broader stakeholder corporate governance model is the so-called fiduciary model. Here, if stakeholders are not given a direct representation at the corporate board level, they are protected by the board's greater discretion to represent not just shareholder interests but other stakeholder interests as well. However, experience often shows courts to be ineffective in formulating well and enforcing adequately fiduciary duties that make sure managers act fairly in the interests of all constituencies, including society as a whole.
But this shareholder model does not come close to the collective representation models existing in mature EU countries. Sweden, for example, has a one-tier system with codetermination where employees are given seats on the board of directors. In fact, in all EU countries there is employee representation by trade unions and/or by a works council.Trade unions are voluntary affiliations covering collective bargaining agreements. They are of great importance in France but of less importance in Germany, although over 60% of employment contracts refer to them. A works council represents all employees in a company and is constituted by statute.
For the last 30 years, the U.S. has been going diametrically in the opposite direction of systematically destroying unions to maximize corporate freedom to set wages, hire and fire, and maximize profits. U.S. management by itself and in secret can make strategic decisions as to whether to close a plant or reduce manpower levels. This has been backed up by U.S. Supreme Court decisions holding that an employer need not bargain with its employees over whether to shut down part of its business. Things just simply don't work that way in Europe.
Europeans tend to feel that employees acquire a property right interest in their jobs over time. The more senior the employee the greater is property interest built up in his or her job performance . Thus, appropriate severance pay is legally required (a minimum of one month for each year of employment in the Netherlands) as compensation for the taking of that property interest by dismissal. Such norms reflect substantial cultural and business morality differences between U.S. labor practices and how Europeans view and value the role of workers.
In the U.S., people do not commonly accept or believe anyone is entitled to a job. Employees can be dismissed with little notice. Legally required severance pay is low and is viewed as a human cushion to help the dismissed until a new job is found. As mentioned, U.S. law gives the employer and entrepreneur flexibility to do almost as they wish with their employees. U.S. corporations, particularly global firms, have one principle objective -- maximum profit for shareholders using all job elimination means (outsourcing, automation, robotization, downgrading, etc.). Under German law, the works council must approve any dismissal or any plant changes, relocation, and merger or any co-determination issue that might result in serious disadvantages to employees. If it does not approve, then parties must appear before a labor court or an arbitration committee for a binding decision.
Again, the "old world"and the "new world" societies are leap years apart on how they treat workers and how they view corporate social welfare and shareholder responsibilities.
I will return to this whole subject whether the pursuit of profit will solve the larger problems of society -- pollution, war, a higher standard of living for all citizens, making things better for workers and communities.
I have in mind another writing on the continuing U.S. JOB DEBACLE -- where politicians are playing irresponsibly dangerous brinkmanship and blackmailing tactics concerning raising the debt ceiling -- while the world watches in disbelief and +-28 million American remain unemployed or underemployed. Obama appears to be wallowing in leaderless compromised nothingness.
Paul Keleher wrote in response to my suggestion that we look at other countries which have already successfully solved these problems:
I agree with everything and have begun to read Max Chafkin's piece. Interesting.... whole towns in Norway smell like rotten fish?!?!
What I take from this reply is that more research into existing models and examples of what works is needed before a draft text should be attempted. Perhaps we don't need to invent a new "American" model for socially responsible business when working models already exist that we can learn from and adapt for our own use. I wonder what moral authority in the Norwegian government has guided the country to adopt the regulations you describe. For what I'm talking about is the drafting of just such a moral authority for the US.
Obviously, there is much work to be done here. But I think that the vast majority of the American people also believe that the country will be better off if money is barred from the political process. However, given the recent history here, a change of course is needed, because Citizen's United just pushed it the other way, big time. To effect such a change, the restrictions of money found in Europe could never be put through this Congress without first passing a moral guideline in the form of a constitutional amendment passed by referendum ballot initiatives in the states in which the people express a direct voice, and only then might we be able to force Congress to consider such a resolution.
