The perils and promise of direct democracy: Labour ballot initiatives in the United States

Abstract

Click to increase image sizeClick to decrease image size Notes1 See Guy Davidov, Mark Freedland and Nicola Kountouris, ‘The Subjects of Labor Law: “Employees” and Other Workers’ in Matthew Finkin and Guy Mundlak (eds), Research Handbook in Comparative Labor Law (Edward Elgar Publishing 2015); Veena Dubal, ‘The New Racial Wage Code’ (2021) 15 Harv L Pol’y Rev 512, 529.2 The status of rideshare drivers may soon change given a recent decision from the National Labor Relations Board (NLRB), The Atlantic Opera Inc NLRB 10-RC-276292 (2023), and a pending rule from DOL, Employee or Independent Contractor Classification Under the Fair Labor Standards Act, 87 Fed Reg 62218 (proposed 13 October 2022) (to be codified at scattered sections of 29 CFR), both of which make it harder for firms to classify workers as independent contractors.3 However, they must do so consistent with federal antitrust law. See Chamber of Commerce v Seattle, 890 F3d 769 (9th Cir 2018) (striking down Seattle ordinance providing collective bargaining rights to ride share drivers for failing to fall within the state action exemption to federal antitrust law). But see Confederación Hípica de Puerto Rico, Inc. v. Confederación de Jinetes Puertorriqueños Inc 30 F4th 306, 313 (1st Cir 2022) (holding that the labour exemption from the antitrust laws, which exempts labour disputes that ‘concern[] terms or conditions of employment’ encompasses concerted action by independent contractors that relates to an employer—employee relationship).4 Dynamex Operations West Inc v Superior Court of Los Angeles County 4 Cal 5th 903 (2018) (adopting the so-called ‘ABC test,’ which allows employers to classify workers as independent contractors only if the worker is free from the employer’s control both in theory and in practice; the worker performs work outside of the employer’s usual course of business; and the worker is engaged in a customarily independent trade); see also Guy Davidov and Pnina Alon-Shenker, ‘The ABC Test: A New Model for Employment Status Determinations’ (2022) 51 Industrial L Rev 235, 236–37.5 AB5, 2019 Leg Sess (Cal 2019) (hereafter AB5).6 Dubal (n 1) 529.7 Josh Eidelson, ‘Teamsters Union Splits from Uber and Lyft on California Worker Rights Law’ (Bloomberg 25 July 25 2019) (describing Governor Newsom's efforts to get unions and platform companies to agree to a compromise). In its final form, the bill exempted some categories of workers, including insurance professionals, certain healthcare workers, other heavily licensed workers like lawyers and accountants. AB5 (n 5) § 2(b). The legislature also added an exemption for musical artists in September 2020. AB 2257, ch 38, 2019–2020 Reg Sess § 2780(a)(4)(C) (Cal 2020). It also allowed them to form collective bargaining agreements defining their employment status. Ibid. For a further discussion of the exemptions to the law, see Davidov and Alon-Shenker (n 4).8 AB5 (n 5) § 2(i)(3).9 AB5 (n 5) § 1.10 Cal Business & Professional Code § 16703. Liability under federal antitrust law could still apply.11 Alexia Fernández Campbell, ‘Uber and Lyft Have Launched a Campaign to Avoid Government Regulation in California’ (Vox 29 October 2019) accessed 17 July 2023. For a detailed discussion of the campaign, see Dubal (n 1).12 ‘California Proposition 22, App-Based Drivers as Contractors and Labor Policies Initiative (2020)’ (Ballotpedia) accessed 10 April 2022 (hereafter Ballotpedia, ‘Prop 22’).13 Josh Eidelson, ‘Uber, Lyft, DoorDash Put $90 Million to Possible Ballot War’ (Bloomberg 29 August 2019) accessed 17 July 2023.14 Campbell (n 11); Ballotpedia, ‘Prop 22’ (n 12).15 See Olson v State of California No 19-CV-10956, 2020 WL 905572 (CD Cal 10 Feb 2020); see also Complaint at 1–2, Olson 2020 WL 905572 (No 19-CV-10956) accessed 20 July 2023 (hereafter Olson Complaint).16 Complaint at 2–3, People of the State of California v Uber Technologies Inc No CGC-20-584402, 2020 WL 5422446 (City & County of San Francisco Super Ct 2020) .17 Order at 32–33, People v Uber (n 16) accessed 20 July 2023.18 Sasha Lekach, ‘Lyft and Uber Threaten to Stop Operating in CA if Forced to Make Drivers Employees’ (Mashable 12 August 2020) accessed 20 July 2023.19 People v Uber (n 16) 316.20 Ballotpedia, ‘Prop 22’ (n 12).21 California Proposition 22, App-Based Drivers as Independent Contractors and Labor Policies Initiative 2021 § 7451 (hereafter Proposition 22).22 Ibid § 7453(a); see also ibid § § 745(d)(1) (defining ‘engaged time’).23 California only allows workers’ compensation for employees, not for independent contractors. Yellow Cab Cooperative Inc v Workers’ Compensation Appeals Bd 226 Cal App 3d 1288 (1991). Prop 22 does require the companies to purchase accident insurance, including income insurance, for their drivers, but does not bring the drivers under the purview of standard workers’ compensation. Proposition 22 (n 21) § 7455.24 Proposition 22 (n 21) § 7451 (expressly ensuring that rideshare drivers are considered independent contractors for the purpose of unemployment insurance).25 See Cal Labor Code § 246 (specifying that employees are entitled to sick leave); Cal Gov Code § 12945.2 (specifying that employees are entitled to family leave).26 Proposition 22 (n 21) § 7465(c)(4) (‘Any statute that authorizes any entity or organization to represent the interests of app-based drivers in connection with drivers’ contractual relationships with network companies, or drivers’ compensation, benefits, or working conditions, constitutes an amendment of this chapter and must be enacted in compliance with the procedures governing amendments consistent with the purposes of this chapter as set forth in subdivision (a) and subdivision (b) of this section.’).27 Caroline O’Donovan, ‘Uber and Lyft Spent Hundreds of Millions to Win Their Fight Over Workers’ Rights. It Worked.’ (BuzzFeed News 21 November 2020) accessed 20 July 2023.28 State of California, Official Voter Information Guide (2020) 58–59 accessed 20 July 2023 (hereafter State of California Voter Guide).29 Ibid.30 Ibid.31 Ibid.32 ‘Yes on Proposition 22’ on WayBack Machine as updated 18 February 2021, accessed 20 July 2023.33 Ibid.34 Christine Roher, ‘Drivers on Both Sides of Prop 22: What They Want Voters to Know’ (NBC Los Angeles 19 October 2020) accessed 20 July 2023.35 Ibid.36 Lauren Hepler, ‘Uber, Lyft and Why California’s War Over Gig Work Is Just Beginning’ (Cal Matters 13 August 2020) last updated 21 August 2020, accessed 20 July 2023.37 Dana Kerr, ‘Uber Drivers Sue, Say Company ‘Coerced’ Them to Support Prop 22’ (CNET 23 October 2020) accessed 20 July 2023.38 Sam Harnett (@SamWHarnett) (Twitter 19 October 2020, 2:58 PM) accessed 20 July 2023.39 Dara Khosrowshahi, ‘The High Cost of Making Drivers Employees’ (Uber 5 October 2020), https://www.uber.com/newsroom/economic-impact/.40 Sasha Lekach, ‘Future of Uber, Lyft on the Line in Fight to Keep Drivers from Becoming Employees’ (Mashable 24 October 2020) accessed 20 July 2023.41 James Vincent, ‘Uber Is Spamming Users with Political Push Notifications Ahead of a Key Gig Worker Vote’ (The Verge 15 October 2020) accessed 20 July 2023.42 Sam Harnett, ‘Prop. 22 Explained: Why Gig Companies Are Spending Huge Money on an Unprecedented Measure’ (KQED 26 October 2020) last updated 4 November 2020, accessed 20 July 2023.43 Dubal (n 1) 537–39.44 Ibid.45 Ibid.46 Ballotpedia, ‘Prop 22’ (n 12); Dubal (n 1) 541.47 State of California Voter Guide (n 28) 59.48 Ibid.49 Johana Bhuiyan, Liam Dillon and Margot Roosevelt, ‘Uber, Lyft Warn They’ll Take the Right Over Drivers’ Status to California Voters’ (LA Times 29 August 2019) accessed 20 July 2023.50 Campbell (n 11).51 Ibid (quoting driver Christian Perrea).52 Roher (n 34).53 State of California Voter Guide (n 28) 59.54 Roher (n 34) (quoting Christian Perrea).55 State of California Voter Guide (n 28) 59; see also Dubal (n 1) 540 (discussing the racial justice organising by drivers).56 Dubal (n 1) 544–549.57 Ibid 542, 546.58 Ballotpedia, ‘Prop 22’ (n 12).59 See Cal. Sec. of State, Report of Registration (19 October 2020), accessed 8 August 2023; Press Release: Secretary of State Padilla Certifies November General Election Results (16 December 2016) accessed 8 August 2023.60 Faiz Siddiqui and Nitasha Tiku, ‘Uber and Lyft Used Sneaky Tactics to Avoid Making Drivers Employees in California, Voters Say. Now, They’re Going National.’ (Washington Post 17 November 2020) accessed 8 August 2023.61 Brian Chen & Laura Padin, ‘Prop 22 Was a Failure for California’s App-Based Workers. Now, It’s Also Unconstitutional.’ (Nat’l Emp Law Project 16 September 2021) accessed 20 July 2023.62 Ibid (citing Castellanos v California Case No RG21088725, 2021 WL 373095 at *2–4 (Alameda Co Sup Ct 20 August 2021) (hereafter Castellanos v California Trial Court Opinion).63 The Court of Appeal affirmed the Superior Court’s finding that Prop 22 does not violate the single-subject rule. Castellanos v State of California 35 Cal Rptr 3d 717, 737–42 (2023), as modified 12 April 2023 (hereafter Castellanos v State Appellate Court Opinion). The issue of the amendment procedure was not considered on appeal.64 Castellanos v State of California, S-279622 (Cal S Ct granted 28 June 2023) (granting review only on the subject of whether the workers compensation implications of Prop 22 conflict with the California Constitution’s grant of workers’ compensation authority to the legislature). [eds: will need to check for litigation updates before publication]65 AB257 2022 Leg Sess (Cal 2022).66 Medora Lee, ‘Not So Fast. A Million Signatures Delay California's Fast-Food Bill for a Vote in 2024’ (USA Today 14 December 2022) accessed 23 July 2023.67 ‘Californians Will Vote on Whether to Overturn Fast Food Law’ (AP News 24 January 2023) accessed 23 July 2023; Suhuana Hussain, ‘‘I Feel Duped’: Inside the Fast-Food Industry's Push to Dismantle a New California Labor Law’ (LA Times 13 July 2023) accessed 23 July 2023 (documenting misleading messaging by signature gatherers who claimed referendum would raise wages).68 As of the time of publication, it appears a settlement has been reached under which the companies will agree to a significant wage increase and will withdraw their referendum in exchange for several changes to the state's employment laws, including the new law that created a worker council and imposed joint liability on franchisors.69 Jessica Bulman-Pozen and Miriam Seifter, ‘The Democracy Principle in State Constitutions’ (2021) 119 Michigan L Rev 859, 877; see also John G Matsusaka, For the Many or for the Few: The Initiative, Public Policy, and American Democracy (Princeton UP 2004) ix.70 Bulman-Pozen and Seifter (n 68) 861–62; Arthur Lupia and John G Matsusaka, ‘Direct Democracy: New Approaches to Old Questions’ (2004) 7 Annual Rev Pol Sci 463, 465.71 Bulman-Pozen and Seifter (n 68) 876.72 Ibid 877. Florida, Illinois, and Mississippi recognise the initiative but not the referendum, while Maryland and New Mexico recognise the referendum but not the initiative. The referendum is typically framed as a withholding of power from the legislature and is not subject to the gubernatorial veto. Ibid.73 Lupia and Matusaka (n 69) 466..74 Ibid; see also, e.g., Mo. Const. art. III, §§ 50, 53.75 Lupia and Matusaka (n 69) 466.76 See, e.g., Mont. Const. art. III, § 4 (discussing distributional requirements for statutory initiatives); Mont. Const. art. XIV, § 9 (discussing distributional requirements for constitutional initiatives).77 Cal. Const. art. I, § 8–12.78 Daniel A. Smith and Dustin Fridkin, ‘Delegating Direct Democracy: Interparty Legislative Competition’ (2008) 102 Am Political Science Rev 333, 333. The movement was particularly strong in the American West; 80% of states with direct democracy measures are in the West. Glen Gendzel, ‘The People versus the Octopus: California Progressives and the Origins of Direct Democracy (2013) 37 Siecles 1, 1 accessed 21 July 2023.79 William Novak, A New Democracy: The Creation of the Modern American State (Harvard UP 2022) 22; J. Fred Silva, The California Initiative Process: Background and Perspective, Public Policy Institute of California (2000) 1; John Dinan and Jac C. Heckelman, ‘Support for Progressive Reforms: Evidence from California’s 1911 Referenda’ (2020) 51 J for Interdisciplinary Hist 209, 209.80 Dinan and Heckelman (n 78) 214.81 Ibid 209.82 Ibid; Glen Gendzel (n 77) 2.83 California Proposition 10: Work-Related Injury Compensation Amendment 1911. California passed a similar amendment via initiative again in 1918. California Proposition 23: Empowers the Legislature to Establish a System of Workmen's Compensation 1918.84 California Proposition 5: State Employee Retirement Salaries Amendment 1930.85 California Proposition 2: Unemployment Relief Fund Bond Measure 1933; California Proposition 23: $24 Million in Bonds for Unemployment Relief 1934.86 Oregon Measure 1, Women’s Suffrage Amendment (1912) (Ballotpedia) accessed 24 July 2023.87 North Dakota 1918 Ballot Measures (Ballotpedia) accessed 24 July 2023.88 This section examines state ballot initiatives directly pertaining to the workplace dating back to 2008 as collected by Ballotpedia, https://ballotpedia.org/Main_Page> accessed 14 August 2023. It also considers some local initiatives relating to the workplace, and earlier state initiatives, as documented in the secondary literature.89 April Corbin Girnus, ‘Nevada Sheds Two-Tiered Minimum Wage, Puts $12 per Hour Floor in Constitution’ (Nevada Current 11 November 2022) accessed 21 July 2023.90 Kate Andrias, ‘The New Labor Law’ (2016) 126 Yale L J 2, 8.91 New Jersey Public Question 2, Constitutional Amendment to Set a State Minimum Wage With Annual Cost of Living Increases 2013; Alaska Ballot Measure 3, An Act Increasing the Alaska Minimum Wage to $8.75 Per Hour 2014; Arkansas Issue 5, An Act to Increase the Arkansas Minimum Wage 2014; Illinois Minimum Wage Increase Referendum Act 2014; South Dakota Initiated Measure 18, Increase the State Minimum Wage 2014; Nebraska Initiative 425, Minimum Wage Increase 2014; Nebraska Initiative 433, Minimum Wage Increase 2022; Arizona Proposition 206, The Fair Wages and Healthy Families Act 2016; Colorado Amendment 70, $12 Minimum Wage Amendment 2016; Maine Question 4, An Act to Raise the Minimum Wage 2016; South Dakota Referendum 20, An Act Lowering the Youth Minimum Wage 2016; Washington Initiative 1443, Fair Labor Standards 2016; Arkansas Issue 5, $11 Minimum Wage Increase Initiative 2018; Missouri Proposition B, Gradual Minimum Wage Increase to $12 Initiative 2018; Florida Amendment 2, Raising Florida’s Minimum Wage 2020; District of Columbia Initiative 82, Increase Minimum Wage for Tipped Employees Measure 2022; Nebraska Initiative 433 Minimum Wage Increase Initiative 2022; Nevada Question 2, Minimum Wage Amendment 2022.92 Nevada Question 2, Minimum Wage Amendment 2022.93 Justin Wm. Moyer, ‘D.C. Voters Approved Higher Minimum Wage for Tipped Workers’ (Washington Post 8 November 2022) accessed 21 July 2023.94 Dave Jamieson, ‘Voters in Portland, Maine Reject $18 Minimum Wage, Vote to Keep Tipped Rate’ (Huffington Post 9 November 2022) accessed 21 July 2023.95 Colorado Amendment A, Removal of Exception to Slavery Prohibition for Criminals Amendment 2018.96 Nicholas Bogel-Burroughs, ‘Why a Question About Slavery Is Now on the Ballot in 5 States’ (NY Times 22 October 2022) accessed 21 July 2023.97 Alabama Recompiled Constitution Ratification Question 2022; Oregon Measure 112, Remove Slavery as Punishment for Crime from Constitution Amendment 2022; Tennessee Constitutional Amendment 3, Remove Slavery as Punishment for Crime from Constitution Amendment 2022; Vermont Proposal 2, Prohibit Slavery and Indentured Servitude Amendment 2022; Aaron Morrison, ‘Voters in 4 States Reject Slavery, Involuntary Servitude as Punishment for Crime’ (PBS.org 9 November 2022) accessed 12 July 2023.98 Ibid.99 See Benjamin I. Sachs, ‘Despite Preemption: Making Labor Law in Cities and States’ (2011) 124 Harv L Rev 1153, 1154–55.100 Arizona Proposition 113, Right to Secret Ballot Voting Amendment 2010; South Carolina Amendment 2, Secret Union Voting Amendment 2010; South Dakota Amendment K, Vote by Secret Ballot 2010; Utah Amendment A, Vote by Secret Ballot 2010; Alabama Amendment 7, Secret Ballot Amendment 2012.101 Employee Free Choice Act, HR 1409, 111th Cong (2009); see also Benjamin Sachs and Sharon Block, Clean Slate for Worker Power: Building a Just Economy and Democracy [2020] Labor and Worklife Program: Harvard Law School (proposing card-check law reform).102 Dana Corp 356 NRLB No 49 (2010) (upholding validity of neutrality agreement between union and employer against legal challenge).103 NLRB v Gissel 395 US 575, 595–600 (1969) (holding that union can establish majority status without a secret ballot through cards, and that the NLRB can issue a bargaining order based on that status where the employer has committed significant unfair labour practices); Cemex Constr. Materials, 372 NLRB No 130 (2023) (holding that bargaining orders are appropriate when employers engage in serious unfair labour practices that tend to make a free and fair election unlikely).104 The NLRB brought a facial challenge against the Arizona initiative on preemption grounds; it was rejected, with the court noting that preemption analysis would depend on how the law is applied. Nat'l Lab Rels Bd v Arizona No CV 11-00913-PHX-FJM, 2012 WL 3848400, *7 (D Ariz 5 September 2012); Press Release: ‘Federal Judge Foresees Potential Constitutional Conflict in Arizona “Secret Ballot” Amendment but Says It Depends on How Amendment Is Applied’ (NLRB Office of Public Affairs 6 September 2012) accessed 22 July 2023. Ultimately, however, the states appear to have agreed to enforce the law consistent with NLRB precedent: employers can consent to union representation based on a card check, but can't be forced to accept it.105 California Proposition 32, Political Contributions by Payroll Deduction 2012 (prohibiting political contributions by payroll deduction and failing to pass with 43.7% yes votes); see also ‘Prop 32: Ban on Political Contributions from Payroll Deductions Initiative (2012) (Ballotpedia) accessed 22 July 2023 (describing nature of opposition and support).106 California Proposition 75, Require Consent for Political Contributions from Payroll Deductions Initiative 2005; California Proposition 226, Ban on Political Contributions from Payroll Deductions Initiative 1998.107 Colorado Amendment 49: Prohibition of Paycheck Deductions Initiative 2008 (failing with 39.2% of votes).108 Andy Vuong ‘Amendment 54’s Fate Still in Doubt’ (The Denver Post 5 November 2008).109 Dallman v Ritter 235 P3d 610 (2010).110 Alabama Amendment 8, Right to Work Amendment 2016; Tennessee Amendment 1, Right-to-Work Amendment 2022.111 Colorado Amendment 47, Initiative, Prohibition on Mandatory Labor Union Membership and Dues 2008; Virginia Question 1: Right-to-Work Amendment 2016. Virginia is a right-to-work state by statute, see Va Code Ann § 40.1-58; the ballot initiative would have amended the constitution to require right-to-work.112 Missouri Right to Work Initiative 2022.113 Ohio Issue 2, Referendum on New Law Relative to Government Union Contracts and Other Government Employment Contracts and Policies 2011.114 Oregon Measure 60, Teacher ‘Classroom Performance,’ Not Seniority, Determines Pay Raises; ‘Most Qualified’ Teachers Retained, Regardless of Seniority 2008 (hereafter Oregon Measure 60); South Dakota Referred Law 16, An Act Concerning Teachers 2012 (hereafter South Dakota Referred Law 16).115 South Dakota Measure 60 (n 113); South Dakota Referred Law 16 (n 113).116 Adam Cotterell, ‘Idaho Voters Resoundingly Reject Propositions 1, 2 And 3’ (StateImpact) accessed 13 July 2023; see also Idaho Proposition 1, Popular Referendum, Referendum to Approve or Reject Legislation Limiting Negotiated Agreements Between Teachers and Local School Boards and Ending the Practice of Issuing Renewable Contracts 2012; Idaho Proposition 2, Referendum to Approve or Reject Legislation Providing Teacher Performance Pay Based on State-Mandated Test Scores, Student Performance, Hard-to-Fill Positions and Leadership 2012.117 Jeremy Gorner and Jake Sheridan, ‘Fundamental Right of Workers to Organize Being Added to Illinois Constitution’ (Chicago Tribune 15 November 2022) accessed 23 July 2023.118 Michigan Proposal 4, A Proposal to Amend the State Constitution to Establish the Michigan Quality Home Care Council 2012; Michigan Proposal 2, ‘Protect Our Jobs’ Amendment 2012 (Michigan).119 South Dakota Initiated Measure 23, Right for Organizations to Charge Fees for Services 2016.120 North Dakota Statutory Measure 4, Workforce Safety and Insurance Agency 2008; Louisiana Amendment 9, Reversal or Modification of Workers’ Compensation Judgments 2010.121 ‘North Dakota Workforce Safety and Insurance Agency Initiative, Measure 4 (2008)’ (Ballotpedia) accessed 25 July 2023.122 Florida Amendment 9, Prohibition of Offshore Oil and Gas Drilling and Prohibition on Vaping in Enclosed Indoor Workplaces Amendment 2018.123 Louisiana Amendment 7, Retirement Fund Investment 2008 (failed amendment proposing to allow funds reserved for the payment of post-employment benefits, other than pensions, to be invested in equities); South Carolina Amendment 2, Investment of Funds for Post-Employment Benefits for State Employees and Public School Teachers in Equity Securities 2008 (failed amendment proposing to allow funds of any political subdivision of the State to be invested in equities); South Carolina Amendment 3, Investment of Funds for Post-Employment Benefits for Employees of Political Subdivisions 2008 (failed amendment proposing to allow local government authorities to invest funds in equity securities); Louisiana Amendment 6, Two-Thirds Vote to Change Public Retirement Systems 2010 (successful amendment proposing that a two-thirds vote be needed to enact a retirement benefit that has an actuarial cost for a public retirement system); Arizona Proposition 125, Corrections Officer Retirement Plan Amendment 2018 (successful amendment proposing a defined-benefit retirement plan for correctional officers, probation officers, and surveillance officers in Arizona).124 Lupia and Matsusaka (n 69) 464.125 Bruce Cain, Democracy More or Less: America’s Political Reform Quandary (CUP 2015) 7.126 Christopher Achen and Larry M Bartels, Democracy for Realists (Princeton UP 2016) 53 (describing this view while critiquing it).127 Lupia and Matsusaka (n 69) 475.128 Lupia and Matsusaka (n 69) 477.129 Bulman-Pozen and Seifter (n 69) 861–62; Miriam Seifter, ‘State Institutions and Democratic Opportunity’ (2022) 72 Duke L J 275, 280.130 Achen and Bartels (n 125) 52–89 (exploring the pitfalls of popular control through ballot initiatives).131 Ibid 75, 86; Daniel A. Smith, ‘Peeling Away the Populist Rhetoric: Toward a Taxonomy of Anti-Tax Ballot Initiatives’ (2004) 24 Pub Budgeting & Fin 88, 90–91.132 Derrick A Bell, ‘The Referendum: Democracy’s Barrier to Racial Equality’ (1978) 54 Wash L Rev 1, 10.133 Smith (n 130) 88.134 See First Nat’l Bank of Boston v. Bellotti, 435 US 765, 767 (1978); see also Fed Election Comm’n v Wisconsin Right to Life Inc, 551 U.S. 449, 476–78 (2007) (holding that federal laws prohibiting corporate spending on electioneering communications were unconstitutional as applied to issue advocacy advertisements); Citizens United v Fed Election Comm’n, 558 US 310, 365–66 (2010) (striking down multiple federal election laws, including one that prohibited corporations and unions from advocating the election or defeat of a particular candidate).135 Lupia and Matsusaka (n 69) 71–72; Matsusaka (n 68) 54. Lupia and Matsusaka note that interest groups may be able to offer more direct benefits to legislators in exchange for their votes.136 Richard Briffault, ‘Ballot Propositions and Campaign Finance Reform’ (1997) 1 NYU J Legis & Pub Pol’y 41, 50. It is unclear whether partisanship plays more of a role in voters’ ultimate decisions than money, in part because political parties have themselves often been captured by elite interests. Achen and Bartels (n 125) 61–62.137 Michael S Kang, ‘Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and “Disclosure Plus”’ (2003) 50 UCLA L Rev 1141, 1149–50.138 See Briffault (n 135) 50–51.139 Daniel H Lowenstein, ‘Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment’ (1982) 29 UCLA L Rev 505, 589 n314; see also Briffault (n 135) 54 n64 (describing Lowenstein’s argument while noting the limitations on the evidence supporting it).140 See Lupia and Matsusaka (n 69) 470 (collecting several studies coming to this conclusion).141 Ibid 471.142 Elisabeth R. Gerber, The Populist Paradox: Interest Group Influence and the Promise of Direct Legislation (Princeton UP 1999) 104.143 Lupia and Matsusaka (n 69) 473–74; see also Elisabeth R. Gerber, ‘Legislative Response to the Threat of Popular Initiatives’ (1996) 40 Midwest Pol Sci Ass’n 99 (examining parental consent laws in abortion context and concluding that states with initiative processes have legislators that vote closer to the median voter).144 Achen and Bartels (n 125) 80–81; see also David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money (Mariner Books 2001) 241–42 (initiatives can be spearheaded by anyone with money, accountable or not).145 William Franko, Caroline J Tolbert and Christopher Witko, ‘Inequality, Self-Interest, and Public Support for “Robin Hood” Tax Policies’ (2013) 66 Pol Rsch Q 923, 930 (finding that, in a Washington state initiative to increase taxes on the wealthy, a voter’s income and a voter’s beliefs about inequality both played a strong role in predicting that person’s vote); Shaun Bowler and Todd Donovan, Demanding Choices: Opinion, Voting, and Direct Democracy (U of Michigan Press 1998) 12–14 (collecting such analyses); Lupia and Matsusaka (n 69) 468.146 Achen and Bartels (n 125) 85 (showing that voters may vote for policies like term limits that sound facially pro-democratic but that some argue reduce legislative effectiveness); David O Sears and Jack Citrin, Tax Revolt: Something for Nothing in California (Harvard UP 1985) 258–59 (discussing voters’ support for ‘something for nothing’ initiatives that promise reforms without funding them).147 Bowler and Donovan (n 144) 13.148 Lupia and Matsusaka (n 69) 468.149 See Richard L. Hasen, ‘A Constitutional Right to Lie in Campaigns and Elections?’ (2013), 74 Mont L Rev 53.150 Amina Dunn, ‘Most Americans Support a $15 Federal Minimum Wage’ (Pew Research Center 22 April 2021) accessed 8 August 2023.151 Seifter (n 128) 312–13.152 Bell (n 131) 10.153 Lawrence LeDuc, The Politics of Direct Democracy (Broadview Press 2003) 150–51 (describing California initiatives that targeted racial minorities, including one that would have made English the official language of the state and another that attempted to bar undocumented children from the state’s educational system); Brad Sears, Christy Mallory and Nan D Hunter, ‘“Voters” Initiatives to Repeal or Prevent Laws Prohibiting Employment Discrimination Against LGBT People, 1974-Present’ [2009] UCLA: The Williams Institute 15-1 to -2. Sears et al. documented 120 proposed ballot measures seeking to repeal anti-discrimination protections for LGBTQ people between 1974 and 2009. Ibid.154 Todd Donovan and Caroline Tolbert, ‘Do Popular Votes on Rights Create Animosity Toward Minorities?’ (2013) 66 Pol Rsch Q 910, 910.155 Ibid.156 Zoltan L Hajnal, Elisabeth R Gerber and Hugh Louch, ‘Minorities and Direct Legislation: Evidence from California Ballot Proposition Elections’ (2002) 64 J of Politics 154, 156.157 Richard J Powell, ‘Social Desirability Bias in Polling on Same-Sex Marriage Ballot Measures’ (2013) 41 American Politics Research 1052, 1053. Professor Powell’s study notes that desirability bias appeared to cause polling on initiatives about minority rights to overrepresent the supportiveness of the voting public, lending some credence to Bell’s hypothesis that individual voters, who cast their vote in the privacy of the voting box, are not subject to the same moderating or shaming pressures as politicians, who vote publicly.158 Dylan Lysen, Laura Ziegler and Blaise Mesa, ‘Voters in Kansas Decide to Keep Abortion Legal in the State, Rejecting an Amendment’ (NPR 3 August 2022) accessed 22 July 2023.159 Michael Wines, ‘Ohio Voters Reject Constitutional Change Intended to Thwart Abortion Amendment’ (NY Times 8 August 2023) < https://www.nytimes.com/2023/08/08/us/ohio-election-issue-1-results.html> accessed 14 August 2023.160 Seifter (n 128) 334–35.161 Ibid 346.162 Gerber (n 141) 25.163 Ibid.164 Jana Kasperkevic, ‘Can Minimum Wage Be Used as an Incentive for Voting in Future Elections?’ (The Guardian 9 November 2014) accessed 25 July 2023. Data is mixed on whether high salience initiatives always increase turnout. For example, Michigan and Vermont both had higher turnout during their 2022 midterm elections than they had for prior midterms with abortion initiatives on the ballot, but in other states with such initiatives, voter turnout remained relatively low, even as the initiatives passed. Veronica Stracqualursi, Devan Cole and Paul LeBlanc, ‘Voters Deliver Ringing Endorsement of Abortion Rights on Midterm Ballot Initiatives Across the US,’ (CNN 9 November 2022) accessed 8 August 2023.