The Gig of Participatory Democracy
- Judge David Langham
The New York Times published an opinion column recently in which the author took issue with the passage of proposition 22 in the recent California election. The title Other States Should Worry About What Happened in California
, suggests criticism of the election process there. Quoting from Berkeley professor and former secretary of labor Robert Reich (“Prop 22 is great for employers, but it’s a huge loss for workers”), the article leaves the distinct impression of an opinion that the sadly uninformed voters were simply bamboozled. The participatory democracy
in action is lamented rather than celebrated.
The article makes no mention of similar recent participatory democracy actions in places like Mississippi (decriminalization of marijuana) and Florida (drastic increase in minimum wage from $8.56 to $15.00, +75%, over five years). Certainly, the potential exists that these other examples were excluded from the author’s analysis because the particular focus is proposition 22. However, it seems a notable distinction that some participatory democracy is at least implied endorsed (through lack of criticism), while the other is criticized (“relentless and often disingenuous ads”; “hewed to their business interests”; “undermined due democratic process”).
Some might argue that participatory democracy is itself “democratic process,” and question how the process could undermine the process of effectuating the process of democracy?
Similarly, others warned of the impacts of the voter’s choice: Ask not for Whom the Bell Tolls.
That harbinger of independent contractor harm notes that “an unprecedented $200 million corporate campaign (ultimately financed by venture capitalists)” and questions “How much corporate money would it take” to promote similar legal distinctions elsewhere. The focus is upon the impacts of tort liability (an injured being limited to the relief available from the tortfeasor or her/his insurance instead of from others like an employer). The author concedes that the law of principal and agent has long effected that outcome. There nonetheless seems to be disappointment that voters would choose to classify drivers as independent contractors rather than employees.
In a general sense, some lament the participatory paradigm because the specific selected language in such voter initiatives is perhaps singularly focused (“hewed to their business interests”), and not subjected to a give and take, a lively debate. Instead, they seem to suggest that the language is drafted from a singular perspective, and the voters reject or embrace the whole of that language, while perhaps focused upon some small segment thereof. There is concern that voters perhaps lack appreciation of the nuance.
That is not new. In Florida, voters recently (2018) chose to amend the state constitution to allow convicted felons to vote without the formalities previously required. The language of that amendment was broad
, and afforded the restoration “after they complete all terms of their sentence.” What does “all terms” mean? That might be open to multiple interpretations. The legislature debated it and passed legislation clarifying it. The “all terms” was thereby interpreted to mean “all terms,” including paying the fines and court costs imposed. There was a hue and cry from various quarters lamenting that the language chosen for the amendment “all terms” would be interpreted to mean, literally, “all terms.” The cacophony of invective in the press, deriding and mischaracterizing this was intriguing. No one, apparently, experienced perturbation about participatory democracy, nor faulted those who drafted that ballot effort, their word choice, or the voter’s embracing of that language.
I heard of that recently in an educational program where the recent ballot effort for Mississippi marijuana decriminalization was raised. The speaker noted that because the alteration is “in the constitution,” it is not subject to adjustment, compromise, or facilitation. Instead it is a constitutional mandate of decriminalization within the specific terms and conditions as stated in the ballot measure. Is it possible that the language of that measure is not the ideal, might contain ambiguity or even conflict with other provisions? In a debate, it is hoped, such challenges or conflicts might be highlighted and language might be honed deliberately; however, might some then accuse the legislature itself of engaging in “hewing.”
The upshot of all of this criticism of some ballot initiatives like Proposition 22 is fascinating. There is perhaps some tendency perhaps to hate the game or the player
somewhat indiscriminately depending in each particular instance upon which effected an outcome deemed personally dissatisfying.
Are such ballot measures less likely than legislative language to represent either compromise or cohesive language? Is there a potential that the absence of differing perspectives could lead to language that could produce unanticipated results, or be stilted (“hewed”)? Is it possible (please “Say it ain’t so Joe
“) that acceptance of process (means) comes down to how one feels positively or negatively about the outcome (end)? Or, is there some inherent strength or weakness in either the ballot measure process or legislative process?
Some might question whether it logical that America’s voters could be utterly bamboozle by one proposal (Proposition 22), and yet absolutely comprehend all the implications of another (decriminalization of pot or inflation of the minimum wage). They might suggest that the propensity for comprehension is instead perhaps reasonably constant (or consistent), and that critics emotional connection to any particular end is instead what influences perspective. Of course, others might argue that instead the critics are merely smarter than the voters.
For example, the times author contends that the employees who support the independent contractor designation have discarded a workable distinction which could recognize the labor law/employment law protections of various statutes including such things as the fair labor standards act (FLSA), which provides a minimum wage federally. He contends that the voter’s will “denies workers full benefits, true minimum wage guarantees and stability.” Presumably, this panoply of “benefits” includes the stability of workers’ compensation.
These attributes of “employee” status were clearly recognized as valuable by the California Supreme Court in 2018. In Dynamex Operations West v. Superior Court
, the Court distinguished and discarded precedent that had been California’s law since 1989 (S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (CA 1089)). The Court instead adopted a standard used in other jurisdictions, the “ABC” test. Some contend that this test “presumes” that workers are employees.
When Dynamex was rendered, some suggested that the Court was making law rather than interpreting California’s law. As that discussion persisted, the California legislature stepped in the next year and passed Assembly Bill (AB) 5 to amend California law to comply with the Court’s adopted standard. Remember all the legal scholars lamenting that the Court made law, or that the legislative process was backwards in endorsing it? Crickets
. While it codified the ABC concept, the legislative effort provided some exceptions from the ABC application. One critic complained that AB 5
“was broadly written and was passed with little discussion. Confusingly, it contained a mishmash of last-minute exemptions from the ‘ABC’ test that, from a distance, seemed to be based on little more than which industry groups were able to get legislators’ ears.” See JDSupra.
In that context, perhaps the legislative process is seen by some as “hewed?” Was there similar analysis in the press or from academia regarding what persons or groups spent money as regards that legislative effort and process?
Is it possible instead that those workers who supported proposition 22 do not perceive significant Uber-control over their activities. Despite the perceptions of the Times author, is it possible that these employees have worked in a variety of occupations and vocations, and are themselves comfortable with the gig quid pro quo exchange of labor for the compensation afford it? Shall we all respect their perspective as workers, as voters, or shall we condescend from our respective perch regarding their understanding or their decision? Is it possible that through their experiences they are better suited than pundits or observers to define the details of their remuneration agreement, their work relationship?
It is said periodically that labor lacks equal footing to management. Some will contend that in the absence of a union contract, labor is powerless. Others will perhaps say that it is government’s role to step in and protect the worker perspective. It is practical to concede that the labor/management relationship may sometimes be less equal than preferred. Perhaps, the world of work is similar to the world generally in its disparities of equity? Is it possible that life is not fair?
It is also practical to believe that workers who perceive such a disparity might elect to vote with their feet
. That is, those who engage in gig vocations might choose to do so, or might alternatively abandon it in favor of other endeavors. Those who lament that workers in the gig environment lack benefits, minimum pay, etc. likely realize any gig workers wanting such benefit need only abandon the freedom of the gig and go to work in the traditional workplace instead. Might that create demand for giggers that drives increased price (wage or payment) from those gig companies to attract workers back from competing vocational choices? When the quid is not sufficient, the quo will not cometh?
It is possible that a great many other factors might enter a workers’ analysis as regards a given payer/payee relationship. Geography, population of alternative earning opportunities, extent of education, convenience of schedule, and more might impact the decision “to gig or not to gig” as regards a particular worker. But, there is perhaps some value in that such alternatives exist for those seeking to earn. Is it possible that some workers might actually, knowingly, prefer some aspect(s) of gig work such that they are willing to forego the “full benefits” offered by the alternative paradigm? Shall we as a society celebrate their freedom to make such decisions or lament the voter’s decision to afford the choice?
Is the analysis any different regarding the wage earner whose employment opportunity evaporates with the 75% minimum wage increase? Some employers may be willing to find a position for someone with no or minimal skills at a minimum wage of eight dollars, but be will perhaps be unwilling to do so at $15.00? Is it possible at $15.00 an hour, the comparative advantage of technology, automation, or artificial intelligence might become more attractive to employers? Might a business vacillating with the decision of adding self-service kiosks be enticed in that direction by the comparative cost of kiosk versus $15 per hour? Where is the hue and cry from academia regarding the voter’s wage decision?
I recently an interesting conversation with an academic, J. Horace Middlemier III. He posited that the current “value meals“ at many fast food restaurants are priced around eight dollars. He proposed to me that as the minimum wage increases to $15 an hour it is practical to anticipate that the cost of that meal might also rise to $15. I suggested that such analysis ignores the fact that other product inputs such as utilities, rent, etc. might not similarly change in parallel to the 75% increase in labor cost. But, with a knowing and lamenting shake of the his scholarly head, he quietly assured me that I simply did not understand. It is indeed gracious of him to pity my ignorance.
It struck me how that dismissal of my questions was perhaps seemingly similar to the dismissal of the voters intellect as regards proposition 22. If I agree with his premise, I am wise; if I ask questions or disagree, I am woefully misinformed or lacking intellect. It is curious to presume that the only way in which proposition 22 could be passed is through lack of understanding or comprehension, but that criticism is seemingly not leveled at support for other ballot initiatives.
Is representative democracy better than participatory democracy? Is the potential for financial influences greater in one than the other? Are Americans less prepared to make law than to elect those who will? Is it possible that money and advertising campaigns might influence election processes beyond the ballot initiative process? Is there an inherent superiority to one method over another? Or, are both simply differently flawed methods by which a self-governing people proceed in their own pursuit of happiness?