Independent contractors’ need for friendly Supreme Court could be Biden’s undoing

Opinion section
Valley News - Opinion

There are similarities between Donald Trump’s reelection campaign this year and Ronald Reagan’s reelection campaign in 1984. The defection of registered Democrats to a Republican, whose Supreme Court justices would better meet the desires of the individual Democrats, will likely be one of the similarities.

There are some differences between the Roe v. Wade decision which legalized abortion and the California Supreme Court’s Dynamex decision and subsequently Assembly Bill 5, which required certain criteria to be met for workers to be classified as independent contractors rather than employees. Roe v. Wade had already been decided by the United States Supreme Court, so any future Supreme Court decisions would set parameters rather than outright reverse Roe v. Wade. Dynamex and Assembly Bill 5 applied to California workers only, so the right of willing workers to be classified as independent contractors has not yet been decided at the U.S. Supreme Court level. Those who oppose abortion are fighting for somebody else’s baby, while those who oppose AB 5 and a federal decision, which would entail similar restrictions, are fighting for their own economic livelihood. The appeal to anti-abortion Democrats was led by anti-abortion groups rather than the Reagan campaign or the Republican Party, while the willingness of independent contractors to cross party lines has been initiated by those contractors’ economic losses caused by the policy supported by many Democrats including Joe Biden. In both cases, however, registered Democrats who would consider themselves better off with Supreme Court justices appointed by the Republican nominee have an interest in voting for the Republican candidate.

In 1984, the abortion issue had not been settled among party lines. Reagan’s own vice president had supported legalized abortion during the 1980 campaign, and many Democrats opposed legalized abortion. In 1984, five of the Supreme Court justices were over 70 years old, so the winner of that year’s presidential election was likely to appoint one or more replacements.

Anti-abortion groups urged anti-abortion Democrats to support Reagan so that anti-abortion Supreme Court justices could be appointed. The appeal noted that anti-abortion Democrats could vote for other candidates to achieve economic, peace and social justice goals, and the anti-abortion Democrats could also vote for a president aligned with those goals in a subsequent election after the new anti-abortion Supreme Court justices were appointed.

AB 5 responded to the Dynamex decision by codifying those requirements while providing some exemptions. AB 5 did not return to the old standard of the only criteria being independence over how the scope of work is to be performed and an independent decision for the worker to go into business for themselves. Most independent contractors desire that status, and the independent contractors adversely impacted by AB 5 include writers, musicians and other professions dominated by Democrats. Biden supports a nationwide version of AB 5, and since independent contractors including Democrats need a president whose Supreme Court justices will uphold the right of willing workers to be classified as independent contractors, Biden is unacceptable to many Democrats who perform freelance work.

The need for a friendly U.S. Supreme Court decision would also allow Democrats to support a candidate of their own party in the future. The executive branch of the federal government includes the Internal Revenue Service, and a Supreme Court decision would guarantee that the IRS could not classify workers as employees if a future Democrat in the White House appoints IRS administrators with such sentiments. Congress decides the rate of taxes, but the threat of the IRS classifying willing independent contractors as employees is another reason Democrat independent contractors need to vote for Trump.

Because anti-abortion advocates are fighting for somebody else’s baby and independent contractors are fighting for their own livelihood, there is even more incentive for Democrat independent contractors to cross party lines than there was for anti-abortion Democrats to vote for Reagan in 1984. Those elected to other office might give those Democrats what they want in terms of other issues, and once the United States Supreme Court decides that an independent decision of the worker to go into business for themselves and control over how the work is to be performed are the sole criteria to be classified as an independent contractor the freelance professionals can return to their party preference in the presidential election.

Biden cannot win if Democrats who are independent contractors support Trump so that favorable Supreme Court justices can be appointed. Trump might not receive the margin of victory Reagan did in 1984, but the independent contractor vote will ensure Biden’s defeat.

Joe Naiman can be reached by email at