Beware the Vanilla Slugger
Two of my summertime favorites—baseball and ice cream—can teach us a lot about the difference between helping employees who want to unionize and attacking independent contractors who don't.
Senator Josh Hawley, R-Missouri, told Bloomberg Law this week that he thinks the Protecting the Right to Organize Act is a “pretty good piece of legislation.”
He also said that since the PRO Act doesn’t have enough votes to pass, he’s working on a new bill that he thinks can pass, and that he hopes former President Trump will support if he’s re-elected in November.
Yeah, it scared me to read it, too.
Hawley is among a handful of Republicans who refused to protect independent contractors recently through use of the Congressional Review Act. Now, he’s signaling support for the PRO Act, which includes a version of the same regulatory language that decimated independent contractors when it became law in California as the heart of Assembly Bill 5.
As a result of that California chaos, a handful of moderate Democrats joined with nearly all Republicans to block the PRO Act from becoming federal law. These lawmakers who are trying to stop the freelance busting enjoy broad support among independent contractors, as I explained when I testified before Congress last year:
Lawmakers who believe it’s a good thing to hurt legitimately self-employed Americans need to let some fresh air into their Washington, D.C. think tanks. Senator Hawley appears to be one of them. He’s among a group of Republicans talking about pro-labor conservatism, an idea coming from think-tank folks like Oren Cass, who says that unions have failed in their core mission and are now a cash cow for Democrats, so they should be revitalized to better help workers.
Other notable Republicans who support ideas from Mr. Cass include Senators Marco Rubio of Florida and JD Vance of Ohio. Vance is currently the GOP’s vice presidential nominee, and has a direct line to former President Trump.
What we need these Republicans to understand—and the Democrats, too, starting right at the top of their presidential ticket—is that there’s a big difference between supporting employees who want to unionize and attacking independent contractors who wish to remain self-employed.
The PRO Act, like the California law, fails to address this major distinction. Any future legislation that makes the same mistake will also do far more harm than good.
Here’s an explanation of why, in basic language that’s as simple to understand as baseball and ice cream.
Easy There, Big Guy
One of my favorite things to do in August is spend an afternoon at the ballpark. It’s hard to top the moment when the bases are loaded and the muscle-ripped, impossibly tall cleanup hitter strides toward home plate. The sun glints off that guy’s biceps like actual star power.
Before our big guy even crouches into his batting stance, we all know what the bat can do in his hands. He handles that piece of wood in a way that reveals its power. He’s a monster who’s going to light the place up. And we’re all here for it.
He’s using the bat as a tool, and he’s using it well.
That’s why we cheer. The big guy is our hero.
It would be a much different story if, instead of aiming his bat at an incoming fastball, the big guy instead turned around, stalked into the crowd and started swinging that bat at people’s heads.
Breaking bones. Pain and suffering.
That would not be using the bat as a tool. It would be using the bat as a weapon.
We’d all be horrified as innocent people’s lives were destroyed. The big guy would rightfully be seen as a villain—and we’d do everything in our power not only to tear the bat from his hands, but also to throw him out of the ballpark before he could hurt anybody else next.
The latter version of that story is analogous to what has been happening in recent years with regulatory language that targets independent contractors.
For decades, this type of regulatory language was used as a tool. It has been, in general, a way for everyone to tell the difference between unionizable employees (who have bosses) and independent contractors (who are our own bosses).
The regulatory language is now being weaponized. California’s law used it to try and force independent contractors out of our usual category, and into the category of unionizable employees. Governor Gavin Newsom stated this explicitly when he signed the bill into law.
The result of that regulatory bat-swinging was as horrible as it was predictable. Story after story showed all kinds of people getting hurt in more than 600 professions. Companies and industry organizations sued the state. People who do what I do for a living—freelance writers—filed papers in court, too.
Today, economists say our protestations have been right all along. Unions didn’t ultimately benefit from this weaponization of regulatory language, but it sure did hurt self-employed people—and reduced overall employment in the process.
I believe the highfalutin experts call that a “job killer” policy.
Knowing that the PRO Act contains a version of this same weaponized regulatory language—and still saying that you think it’s a “pretty good piece of legislation”—is akin to cheering as you watch the big guy at the ballpark smash in people’s skulls. We need lawmakers like Senator Hawley to understand that freelance busting is just plain wrong.
What we have all witnessed in California, and in states like New Jersey that tried to copy California’s freelance-busting bill, is widespread pushback from grassroots voters of all ages, genders and political affiliations.
Make no mistake: Those of us who had to endure that bat coming straight at us know which lawmakers swung it, and we remembered in the voting booth.
Here in New Jersey, we helped to get them thrown entirely out of the game.
The Vanilla Data
People who support this kind of weaponized regulatory language tend to cite the same data points when they attempt to justify their actions.
The primary research they point to is this survey from Gallup, which came out in 2022:
What that headline says is true. If you read through Gallup’s survey results, you’ll see that 71% of Americans support labor unions—up from 64% before the pandemic, and the highest figure that Gallup has recorded since it started asking back in 1965.
The thing is, just a few paragraphs down, there’s an equally important survey result.
It shows that 58% of people have no interest in actually joining a union themselves.
In fact, if you combine the people who have no interest in joining a union (58%) with people who are neutral on the subject (15%) and who lean against joining unions (7%), the total figure is 80%—well more than the 71% who say they support the existence of labor unions.
I call this the vanilla ice cream survey. I think about it every time I go to another place that I love in the summertime: my supermarket’s ice cream aisle.
If you look at surveys about people’s favorite flavor of ice cream, the majority (59%) say they like vanilla.
You could stop the research right there and believe that most people would be fine with regulators changing the rules so that only vanilla ice cream could be sold in the freezer cases.
Or, you could keep reading, and realize that more than half of people (51%) also like chocolate, and quite a few (43% apiece) also like strawberry or cookies and cream.
I’m in the latter camp. There is exactly one time of year that I buy plain vanilla ice cream: Thanksgiving. A warm piece of apple pie with a scoop of cold vanilla on top is the seriously good stuff. It’s the November version of the August ballpark.
But the rest of the year? Sure, I’m fine with vanilla existing in the freezer case. Even still, I’m walking past it to buy the Belgian chocolate fudge, or the cookie dough crunch, or the salted caramel swirl.
The way that most Americans feel about unions is the way most Americans feel about vanilla ice cream. We approve of them existing, but we don’t necessarily want to commit ourselves to them. We want to keep our options open.
Respect the Difference
Helping employees who want to unionize is not even remotely the same thing as attacking independent contractors.
If you’re a lawmaker who has become a vanilla slugger, then your approach to the regulatory language is stunningly, harmfully wrong.
Study after study shows that the vast majority of independent contractors wish to remain as we are. Any government policy that limits our freedom to choose self-employment is a weaponization of regulatory language. It’s trying to force us to become something we do not want to be.
It’s plain and simple freelance busting.
Unionized employees and independent contractors are equals as Americans. We have the right to choose how we earn a living. Everyone should respect us and our rights, because that’s how we roll here in the land of the free. We’re all about liberty and the pursuit of happiness.
We should be able to root for whichever team we choose, enjoy a happy and safe day at the ballpark, and order a cone with whatever two scoops we want.
And freelance busting should have no place at all in our shared American experience.