Yes, They Can

A determined minority of freelance busters—trying to restrict our freedom to choose self-employment—is mirroring tactics that brought down Roe v. Wade.

A number of years ago, I was at a friend’s house talking about how I thought Republicans would ultimately succeed in bringing down Roe v. Wade.

“They’ll never do that,” she said, laughing in my face. “The country would lose its mind. People would never stand for it.”

Well, here we are, two years after the U.S. Supreme Court overturned Roe v. Wade. The concerted effort to tear down that ruling eliminated what was previously considered a constitutional right. It was a right that I possessed for nearly my entire life, and then poof, at the federal level, it was gone.

With the benefit of hindsight, The Washington Post did a deep dive into how it happened. The case that overturned Roe v. Wade didn’t come out of nowhere. Not by a long shot.

Those of us who wish to keep our ability to choose self-employment—a freedom that every American has enjoyed since the day this nation was founded—need to understand how the opponents of abortion achieved their goal.

Because right now, the freelance-busting brigade is acting an awful lot like them.

That’s the nature of the fight we’re in.

How They Did It

The Washington Post article looks at a number of tactics that abortion opponents embraced as they worked across decades to achieve their goal.

Let’s break down those tactics one by one, to see the parallels between what happened with abortion rights and what we are experiencing today in terms of freelance busting.

Mobilizing a Determined Minority

With almost no change in national public opinion over the past five decades, and as a majority of Americans remain opposed to overturning Roe, the movement succeeded by mobilizing a determined minority of Americans.

When it comes to abortion, 63% of Americans say it should be legal in all or most cases, while 36% say it should be illegal in all or most cases.

When it comes to self-employment, 62% of Americans say they would prefer to be their own boss, while 35% would prefer to work as an employee for someone else.

These percentages are virtually identical, in terms of what most Americans actually want for their own lives and believe is correct for the country.

What most of us want and believe is also irrelevant, based on what ultimately happened with Roe v. Wade. A determined minority can overcome the will of the majority, especially if the majority assumes that their rights are indelible. The best weapon a determined minority has is a complacent majority that fails to recognize and respond to the threat.

At the time when Roe v. Wade was handed down, in 1973, the Post writes:

Abortion was an issue without clear political or religious boundaries beyond the Catholic Church.

Until the current era, that was the case for self-employment, too. The idea of freelance busting was fringe. It was a fever dream among unionists. They were like the Catholic Church used to be on abortion, wishing the world would bend to their beliefs, but not having any power to make it happen.

What changed, in 2013, was President Obama appointing David Weil, the philosopher king of the freelance busters, to serve in a top position in the U.S. Department of Labor. Weil is an academic and unionist who had long wanted to see independent contractors reclassified as unionizable employees. With his newfound power, he made a bureaucratic move in 2015 to try and limit the choice of self-employment nationwide.

Labor and employment attorneys at the time called what was happening unprecedented. But, as with early efforts to pierce abortion rights, almost no regular people noticed what was going on.

Even by the time Weil’s theories had blossomed into full-blown freelance-busting laws like California’s Assembly Bill 5 in 2019, most independent contractors still had no idea what a determined minority of unionists was attempting to do—unionists who knew exactly how to get what they wanted from within the bowels of government, and who had joined forces with highly organized political groups like the Democratic Socialists of America.

Think about how shocked some people were that Roe v. Wade fell as you listen to Karen Anderson, the founder of Freelancers Against AB5, explain what happened after California enacted Assembly Bill 5. It was almost laughably easy for the highly determined freelance-busting brigade to pick off the mostly oblivious independent contractors:

“[M]ost people didn’t realize this until it was too late to coalesce an effective opposition force under one umbrella. … The divide-and-conquer strategy of pitting professions against other professions worked.” 

The determined minority that pulled off California’s attack on the freedom to choose self-employment is attempting the same thing right now at the federal level. They are highly mobilized and well-organized—while most independent contractors have no idea it’s even happening.

Adopting Palatable Rhetoric

They decided … that the anti-feminist rhetoric of [Phyllis] Schlafly and the Equal Rights Amendment struggles from the 1970s had become counterproductive. “We had to convince the public that we were compassionate to women,” [John] Willke would later write about the new strategy. “Accordingly, we test marketed variations on this theme.”

Phyllis Schlafly was a conservative activist who used to say things like, "Sex education classes are like in-home sales parties for abortions."

That was a tough sell in an era when Betty Friedan was telling women that instead of scrubbing kitchen floors, they could be enjoying orgasms. Schlafly’s rhetoric may have sounded good to far-right conservatives, but outside of those circles, it didn’t win abortion opponents a whole lot of new members to their cause.

So, abortion opponents came up with a new slogan—“Love Them Both,” meaning the mother and child. That sure sounded a lot better than “go back to scrubbing the kitchen floor.” It felt a lot more inclusive.

Most important, it didn’t sound like taking away a right.

It sounded like expanding a good thing: love.

The same type of language shift is happening right now with freelance busting.

Yes, some hardcore types are still shouting “scab,” but for the most part, attempts to eliminate the freedom to choose self-employment have come wrapped in the rhetoric that self-employment is a form of exploitation—that being our own boss is a bad thing for us. This has been akin to Schlafly trying to make sexual liberation seem like a bad thing at a time when many women were embracing it. Attempts to denigrate self-employment have simply fallen flat when study after study shows most of us actually prefer being our own bosses.

The determined minority, for a long time, has had trouble recognizing this disconnect between its sales pitch and its target market; Weil, in his infamous 2015 bureaucratic missive, called misclassification of independent contractors a “problematic trend”—the same year the Government Accountability Office found that “more than 85 percent of independent contractors and the self-employed appeared content with their employment type.”

That’s why now, similarly to what happened with abortion opponents, the determined minority of freelance busters is changing the language around the issue.

The freelance-busting version of “Love Them Both” is “Freedom to Join a Union.” That’s the new line we’re hearing all over the place, including from politicians currently campaigning to win the highest offices in the land.

It doesn’t sound like taking away a right.

It sounds like expanding a good thing: freedom.

Introducing Legislation

By the fall of 2011, antiabortion advocates had started pushing for bold restrictions with brash new tactics. When Janet Porter introduced the first “heartbeat bill” in the country to ban abortions after six weeks, she showed up in the Ohio Statehouse with ultrasound videos to demonstrate the cardiac activity of a fetus, which she described as the “youngest person to ever speak” at the Ohio Statehouse.

It is a common belief among independent contractors that the federal Protecting the Right to Organize Act, along with 2018-19’s Assembly Bill 5 in California, were the first pieces of legislation to threaten our freedom to choose self-employment.

In fact, the current legislative push began 17 years ago.

Back in 2007, there was a federal bill called The Independent Contractor Proper Classification Act. Its sponsors included U.S. Senator Patty Murray, D-Washington—the same lawmaker who, today, is the primary sponsor of the PRO Act—as well as then-U.S. Senator Barack Obama, D-Illinois.

The press release these lawmakers issued in 2007 said their bill was supported by, among others, the AFL-CIO, the International Brotherhood of Teamsters, and the National Employment Law Project.

These are the same exact people pushing freelance-busting policies of all kinds at the local, state and federal levels today.

When a law gets enacted to take away a fundamental freedom, it doesn’t come out of nowhere. There’s a buildup, just the same as there was with attempts to restrict abortion rights. Planned Parenthood lists a half dozen types of legislation that abortion opponents used, or tried to use, in the buildup to overturning Roe v. Wade.

With freelance busting, we have not only seen California’s Assembly Bill 5 in recent years, but also New Jersey’s Senate Bill 4204 and New York’s Senate Bill S6699A—all of them intended to reclassify independent contractors as unionizable employees. We are currently seeing Minnesota’s Task Force on Misclassification talk about the idea of a similar effort in that state next, at the same time the freelance busters push for a federal version with the PRO Act in Congress.

We are also seeing attempts to move us closer to reclassified status through other types of laws labeled “Freelance Isn’t Free,” and through regulatory rulemaking that has resulted in lawsuits like this one, in which I’m a plaintiff, against the federal government.

Most recently, we are hearing chatter from unionists and Capitol Hill about the need to consider rewriting America’s laws to allow for sectoral organizing, which could give the freelance-busting brigade power over independent contractors without reclassifying us as employees at all.

It’s all part of the same effort to restrict our freedom to choose self-employment. Just as abortion opponents tested all kinds of ideas, the people who want to restrict our ability to be our own bosses are searching for an opening to get them what they want.

Building an Academic Movement

… helped to build an academic legal movement in the Ivy League universities spearheaded by a group of law students at Yale, Harvard and the University of Chicago … These self-described originalists came to reject Roe as judicial activism, and found common cause with abortion opponents who could mobilize voters.

Just as a bunch of academics started to rail about the fact that Roe v. Wade needed to be overturned, we are currently seeing a bunch of university presses and academics forcefully espouse the idea that independent contractors should be reclassified as unionizable employees.

There has been book after book from Princeton University Press and the University of California Press decrying the rise of the “gig economy.” Academics like Terri Gerstein from New York University have penned op-eds in prominent publications like The New York Times, saying that people being classified as independent contractors is “bad for everyone.” Veena Dubal, of the University of California, has written repeatedly about the perils of “gig work,” even going so far as to suggest that the freelance-busting brigade should embrace the language of racism in its attempts to limit self-employment.

Perhaps the most startling example was Katie J. Wells of Georgetown University testifying earlier this year before Congress. In this clip, she tells U.S. Rep. Kevin Kiley, R-California, that lawmakers should ignore the will of Americans who wish to remain self-employed and instead reclassify them as employees against their will:

Just as reporters covering the abortion issue eventually had plenty of academics willing to be quoted in the press about why abortion rights should be eliminated, today’s reporters covering independent contractor policy issues find no shortage of academics willing to say that freelance busting should be the law of the land.

Installing Like-Minded Judges and Politicians

By 1980, the Republican Party had become more explicit, promising in its platform to promote judges “at all levels” that would respect “the sanctity of human life.”

The platform that the Democratic Party just approved at its convention states loudly and proudly, “We’re making it harder for employers to misclassify workers as independent contractors to avoid paying them full pay and benefits.”

This is not surprising, given that 1 in 4 delegates to the Democratic National Convention were union members. It also is not surprising that there’s no language in this platform stating that millions of independent contractors are legitimate small-business owners—the majority of small-business owners in America, actually—who need protection from the kind of wildly overzealous freelance busting that resulted in California’s Assembly Bill 5, and that formed the basis for the PRO Act in Congress.

Instead, just yesterday, Democratic presidential nominee Kamala Harris stated this in her newly unveiled policy platform:

The freelance-busting crowd is also doing everything in its power to install judges who will vote the way the way they want. Just as abortion opponents sought to pack the U.S. Supreme Court with justices who would vote to bring down Roe v. Wade, today we’re seeing Senate Majority Leader Chuck Schumer, D-New York, say things like this about the appointment of Ketanji Brown Jackson to the bench:

We also just saw unionists play an incredibly vocal role in helping to choose the Democrats’ nominee for vice president of the United States. For a hot minute, there was talk of Harris running alongside U.S. Senator Mark Kelly, D-Arizona—until the unionists cried foul. They’re still upset that, back when Kelly refused to co-sponsor the PRO Act, he quite reasonably said:

“I do have some concerns with the legislation, specifically things about who qualifies as an independent contractor. Sometimes employers often use that to their advantage. In other cases, I do think people should be able to be independent contractors.”

With the urging of the freelance-busting brigade, Harris jettisoned the idea of Kelly and instead named Minnesota Governor Tim Walz as her running mate.

Walz is not just a supporter of union-backed policies; he’s a guy they call their “union brother.” Since his very first solo speech with the campaign—in front of a friendly union audience—he’s been talking about how a Harris-Walz administration would sign the PRO Act into law:

The Future is Predictable

It’s easy, at this point, to look back and understand what happened toward the culmination of the effort to overturn Roe v. Wade.

When it comes to the effort to restrict our freedom to choose self-employment, it’s equally easy to predict what’s likely to happen next.

The freelance-busting brigade is far closer to success than most Americans realize. This determined minority is well-positioned, well-organized and eagerly awaiting an opportunity to pounce more decisively than in the past.

For abortion opponents, that opportunity came when U.S. Supreme Court Justice Antonin Scalia died in 2016. By then, abortion opponents had laid decades of groundwork for their cause. Republicans pounced on the opportunity, made a wave of conservative judicial appointments, and brought down Roe v. Wade in 2022.

Today, a similar groundwork has been laid for freelance busting. All it’s going to take at this point is an opening, and the determined minority can very realistically succeed in restricting our freedom to choose self-employment nationwide.

I know so many independent contractors who refuse to believe it’s happening, even as the evidence is all around us. These self-employed people sound just like my friend did all those years ago about abortion: “They’ll never do that,” independent contractors say, laughing off the mere notion that our freedom to be our own boss could ever possibly be restricted in the United States of America.

As the determined minority that overturned Roe v. Wade has taught us, that’s all they need to get what they want.

A complacent majority that fails to recognize and respond to the threat.