CPC files amicus brief to protect Californians’ right to the ballot initiative.

This was originally published by California Policy Center 

The California Policy Center filed an amicus brief this week in Castellanos v. California, the high-profile case with the highest of stakes: Californians’ right to pass ballot initiatives.

For more than a century, California’s ballot initiative process has given voters a direct say in the policies they want to improve their state. Now this right is under attack by California’s unions.

At issue in the Castellanos case is Assembly Bill 5, introduced by former Assemblywoman (and longtime union toady) Lorena Gonzalez, that in 2019 changed state labor law to force companies to transform independent contractors into regular employees. Though aimed directly at rideshare companies like Uber and Lyft, AB 5 wreaked havoc everywhere freelancers work — the music industry, construction, graphic design, photography.

AB 5’s backers, primarily union leaders and their allies in the state legislature, said gig workers would get health insurance, rest breaks, and other benefits afforded to employees under California state law. Those union leaders did not mention that those drivers would lose what’s arguably the most attractive feature in their bargain with Uber and Lyft: the freedom to determine their work schedules.

The only winners when AB 5 passed were the union leaders who saw the new law as an opportunity to expand their potential market by unionizing the gig economy. Independent contractors begged for relief.

In response, Uber and Lyft launched Proposition 22, a 2020 state ballot initiative that proposed a narrow carveout in AB 5 for app-based drivers. Some 10 million Californians helped pass the initiative, allowing gig drivers to remain classified as independent contractors.

AB 5’s proponents, including the powerful Service Employees International Union (SEIU), filed suit immediately in Castellanos v. California. And, following a trial last summer, Alameda County Judge Frank Roesch declared Prop 22 unconstitutional.

In his ruling, Roesch affirmed the union’s two arguments. First, that Prop 22 violated a technical provision in the drafting of a ballot measure, the “single-subject” rule. But Roesch also bought the union’s argument that Californians cannot have a direct say on policy matters over which the state legislature has declared itself sovereign. One of those policy matters, Roesch concluded, is anything affecting workers’ compensation.

That conclusion should frighten Californians of all political stripes because California’s legislature has claimed sovereignty over virtually every aspect of life in the state. Roesch’s logic leaves little room for the public to exercise its right to check the legislature through referendum and initiative.

Now, Roesch’s ruling will be tested in a California appeals court. CPC filed an amicus brief this week detailing the flaws in Roesch’s ruling and urging the appellate court to reverse his decision and restore the people’s will on Proposition 22.

The eagerness to eviscerate Californian’s right to the ballot initiative reveals the audacity of California’s government unions—like SEIU, who loved the state’s initiative process when it suited their aims. Over decades, SEIU and its government union allies have dumped hundreds of millions of dollars into initiatives to expand government, raise taxes, limit personal freedom, and crush business. Now, SEIU wants to kill the ballot initiative because they lost on Prop 22 and see the initiative process as a tool too often used by the union’s opponents.

But that’s the point: the ballot initiative allows the people to push back against those in power who ignore the will of the people. It’s because progressive politicians — and their union backers — currently dominate the state legislature that the unions see ballot initiatives as a threat.

As CPC explains in its amicus brief: “The initiative process itself has no partisan valence, and that the minority political party seeks it out more often than the dominant party demonstrates only that the steam valve is functioning as intended.”

Ironically, California’s initiative, referendum and recall laws are a product of the Progressive era. After the transcontinental railroad was completed in 1869, the Central Pacific railroad quickly became the state’s biggest employer and private landowner. Central Pacific routinely abused its power to charge Californians outrageous rates and blackmail towns and cities into paying the railroad taxpayer subsidies. But the people’s frustrations were ignored by politicians who were cozy with Central Pacific.

“A wave of populist anger carried a set of progressive Republicans into state office in the 1910 elections” who, as CPC describes in its brief, crafted California’s initiative power as “an insurance policy that would ensure the people retained a voice in state government long after that generation of politicians had left office….”

“How can we best arm the people to protect themselves hereafter?” asked Governor Hiram Johnson in his 1911 inaugural address. Johnson said the initiative process would “give to the people the means by which…they may prevent the misuse of the power temporarily centralized in the Legislature…[a] precautionary measure which will ever be present before weak officials.”

Johnson and his compatriots believed the ballot initiative would “place in the hands of the people the means by which they may protect themselves.” 111 years later, the people’s ability to do so cannot be stripped by California’s government unions or an overzealous judge. California Policy Center is now in the process of forming Democracy for All, a coalition of pro-democracy groups working to protect the right of California voters to a ballot initiative. To learn more about Democracy for All and join the coalition, please visit DemocracyForAllCA.org. CPC’s amicus brief can be read in full here.