The Perils and Promise of Direct Democracy: Labour Ballot Initiatives in the United States

In September 2019, California legislators approved a bill, known as AB5, that extended employee status to many workers previously classified as independent contractors, including workers at the rideshare platforms Uber and Lyft. The law aimed to reshape the platform economy — also known as the ‘gig,’ or ‘on-demand’ economy — to protect exploited workers and make work less precarious. Just over a year later, however, in November 2020, voters repealed significant parts of the bill through a state-wide ballot initiative, stripping ride-share drivers and other platform workers of employee status and limiting the ability of the California legislature to protect such workers in the future. This Essay uses the California fight over platform workers as a jumping off point to explore the role of the ballot initiative and referendum in United States labour policy. Part I details the California experience, including the extraordinary amount of money and aggressive communication tactics that platform companies employed to advance the initiative. The next two Parts put the California experience in legal and historical context. Part II surveys the law of ballot initiatives in the United States as well as their progressive origins and aspirations. Part III explores what kinds of labour ballot initiatives have been pursued in the past across the United States, and whether they have prevailed, focusing on the last fifteen years. Part IV augments the existing scholarly literature with the labour experience to analyze under what circumstances state-level initiatives are pro-worker; when and why are they captured by business interests; and, more generally, to what extent are they riddled with the same pathologies that affect the rest of our democracy. Ultimately, the experience in California and with labour initiatives in the United States more broadly suggests that, under certain conditions, ballot initiatives can be an important pro-worker and pro-democratic tool. However, when wealthy corporate interests are united on one side of a ballot measure as is often the case for labour initiatives, when a measure is complicated and difficult to decipher, and when business interests have particular control over communication or have the ability to exercise coercive economic pressure over voters, business can capture the process, notwithstanding voters’ previously expressed preferences and interests