A New Portal Is Opened
Yesterday, through the Deliberation Gateway Network of the RSA US , Chris Imboden-Forman opened a new portal into a new possibility space for popular participation in prudent stewardship of the tens of trillions in society's shared savings aggregated, collectively, worldwide, into social trusts for socially provisioning the social safety nets of Workforce Pensions and Civil Society Endowments by adaptively evolving the proven protocols and practices of deliberative democracy in policy and lawmaking to citizen enforcement of the social license we grant to these social trusts, as workers, as citizens and as taxpayers, in their discretionary exercise of the capacity that they derive from their legally constituted character, in undivided loyalty to their legally constituted aims, to invest money for income as well as safety to assure income security in a dignified future to some, directly, as a private benefit, and to us all, consequently, as a public good.
How well are they doing?
The answer to that question is in part technical, and in part existential.
The technical part relates to income sufficient to their purpose.
The existential part relates to safety sufficient to our dignity.
Both are decided, by law, according to our common sense as prudent people familiar with such matters, under the circumstances then prevailing.
Are you a prudent person?
Then you have a say, and your opinion matters.
The Deliberation Gateway Network is organizing a new community of concerned citizens to pioneer the building of an innovative new platform where you can make your voice be heard.
The perennial question for deliberation on this new platform is a question we are not allowed to ask in the world as it is now constructed.
We are sold/told today that the right economy is a Growth economy, and as long as the economy is growing, numerically, as measured by GDP and share prices in the capital markets, then, yes, we do have the right economy.
But do we really want all the money to always be flowing only into growth?
That's the question that inspires the social innovation of curated deliberation by ordinary people who care enough to take the time to make the effort to make ourselves familiar with HOW the money is made to flow, and to articulate our adaptively evolving common sense of WHERE the money can, and should be made to flow, under the circumstances then prevailing, in the interest of our shared quality of life in a cohesive society and a dignified future.
Forrest Sparks briefed our working group on some of the key features of successful civic assemblies for policy and lawmaking, including:
This gives us a starting point from which to begin the design of curated deliberations, not on policies of law and government, but on investment policies of social trusts.
We need to begin with some basic training, so to speak, that builds familiarity among participants with the law of social trusts in two critical vectors:
These laws are always the same (and have been, in principle, for centuries, perhaps millennia), but the facts to which these laws must be applied are constantly changing. This is where popular participation in holding fiduciaries accountable for prudence and loyalty in adopting to the circumstances then prevailing fit in, giving us all a say, and making curated deliberation a powerful and important social innovation in the governance of fiduciary finance.
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One question that might make a good focusing question for early curated deliberations could be, Should social trusts be providing financing to Private Equity?
A briefing on the pros and cons of Private Equity would be a great way to explore the question of what capacity social trust derives from the legally constituted character, under the circumstances now prevailing.
The questions for deliberation will always be at the level of investment policy (such as a policy on financing Private Equity), and focus on the application of general precepts of prudence and loyalty to the facts of different policy choices, under the circumstances then prevailing.
It will always be the right and the responsibility of the fiduciaries to actually make individual investment choices, in their exercise of discretion, although they must make those choices within the constraints of prudence and loyalty as articulated by prudent people familiar with such matters, under the circumstances then prevailing.
The ultimate enforcement mechanism for investment choices that breach the constraints of prudence and loyalty will be litigation in the courts.
We all have an reason to participate in curated deliberation on the facts and circumstances of prudence and loyalty, some of us as workers who are earning assurance of income security in our own personally dignified future, and all of us as citizens, who, through our representative lawmakers, grant social trusts their social license, and also as taxpayers who subsidize these social trusts through tax exemptions.
Platform Building Builds Social Proof that Curated Deliberation Is a Good Social Innovation
Emmeline C. shared her experience as one of the pioneers who designed and curated what was styled as a Participant Dialogue with Pensioenfonds Detailhandel in the Netherlands, through which both the workers who participated and the fiduciaries who sponsored it found common ground on investment policies valuing sustainability and ESG (Environmental, Social and Governance) values.
This experience that demonstrates that common ground on the values that social trusts can, should and will value in their investment policies that inform their investment choices can be formed through curated deliberation is especially timely under the circumstances now prevailing here in the US, where campaigns are under way to re-make the law to say that the duty of fiduciaries to care requires that they do not care.
This can be seen in Trump's "war on woke".
It can be seen in campaigns from Attorneys General in Republican-controlled states pressuring the Department of Labor (DOL) to issue regulations forbidding pension trusts valuing the values of Sustainability, ESG, DEI and climate/habitat longevity in their investment choices, and the Securities and Exchange Commission (SEC) to prevent corporations from disclosing to investors their policies and practices on valuing the values of Sustainability, ESG, DEI and climate/habitat longevity.
It can be seen in last month's decision by the Federal District Court for the Northern District of Texas in the case of Spence v. American Airlines, essentially ruling that it is a violation of fiduciary duty for tax-deferred retirement savings plans (in the US, we call them 401(k) plans) to offer savers participating, individually, in those plans, investment choices that engage in proxy voting - that is sometimes called shareholder activism.
It can be seen in the 2023 lawsuit filed against the New York City Employees Retirement System (Wong v NYCERS), seeking a ruling that divestment from hydrocarbons companies is a violation of their fiduciary duty. (This case was dismissed for lack of standing, following the Supreme Court decision in Thole v US Bank, see below, and is currently on appeal.)
The Thole decision, for 2020, is problematic because, on its face, it appears to limit accountability of fiduciaries for breach of fiduciary duty to cases where workers can prove that they have suffered an actual financial loss in consequence of that alleged breach.
These problems can be traced all the way back to the infamous Citizens United decision, that conferred Constitutional rights on corporations, and declared that spending money is an protected speech under our First Amendment, unleashing a flood of money into our electoral politics, making donors more important than voters in our contemporary politics.
How should social trusts deal with corporate expenditures on politics that are adverse to their mission?
Another promising focusing question for early curated deliberations is what policies can and should social trusts have regarding corporate lobbying of politicians?
This social innovation of fiduciary activism through curated deliberations on prudence and loyalty under the circumstances then prevailing could well be one of the defining moments of the 21st Century.
Stay tuned!
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