A bitter Washington showdown is unfolding over the confirmation of President Biden’s nominee for labor secretary, Julie Su. The result is that Biden—who has repeatedly self-identified as the “most pro-union president in American history” and is running for reelection on that very distinction—may well be headed into 2024 with no labor secretary at all.
The big opposition to Su’s candidacy? It’s coming from her home state of California, and it is stalked by the ghost of Prop 22, that multi-hundred-million-dollar fight from 2020 over gig-worker classification.
Su has a reputation for enforcement and application of labor law to the letter, especially in violations of overtime and worker misclassification. She worked in California as secretary of the state’s Labor and Workforce Development Agency during the implementation of the controversial AB5 law, which was passed in 2019 and made it more difficult for employers to keep workers as independent contractors without providing them benefits.
So Silicon Valley front groups, like the Flex Association and the Chamber of Progress, which are funded in part by rideshare and delivery firms like Uber and Lyft, want Su as far from the office of labor secretary as possible. Their opposition is obvious—it’s all about gig work. “It’s the companies and sectors that have organized themselves as non-employers that are worried about being hit with minimum wage and overtime violations,” said Veena Dubal, a professor of law at the University of California at Hastings who focuses on gig work. Fast-food franchise firms, which likewise benefit from employee classification loopholes, have also entered the fray to oppose Su.
Because of these dynamics, the fight, which is quickly escalating in Washington, has become a reprisal of the Prop 22 showdown in California from 2020, the most expensive ballot measure in the history of American politics.
In that fight, gig-economy tech companies including Uber, Lyft, Doordash, and Instacart poured over $220 million into boosting a ballot measure to convince California voters to supersede AB5 and create a third category of workers that would keep gig workers from gaining employee status. The Chamber of Progress was born of this effort. (The gig economy companies succeeded, at great cost to workers; a recent analysis from drivers’ advocacy groups found rideshare drivers have been taking home just $6.20 per hour in California since the ballot measure was enacted.)
This time around, those Silicon Valley gig firms are getting a boost from a fellow Californian, Sen. Dianne Feinstein. Her continued absence from Congress means that these tech-backed associations can see a real path to downing Su’s candidacy. Joe Manchin, staring down his own political mortality, has made it clear he is no big fan of Su’s, even though he voted to confirm her as deputy labor secretary two years ago. Su has spent the last two years serving as the right hand of former Labor Secretary Marty Walsh, but Manchin has characterized his opposition to Su by saying “I am looking for a Marty Walsh.” In the most charitable terms, his opposition is a cop-out.
And if Manchin is a no, and he sure seems to be, the math looks treacherous. Republicans, though they claim to all hate California tech firms, and claim (with the same anti-reality defiance) to love labor, look like they will all oppose Su, too. She got zero GOP votes in her hearing in the Senate Health, Education, Labor, and Pensions committee. Some of her most bitter opposition came from Alaskan “moderate swing voter” Lisa Murkowski.
That means 50 noes for Republicans, which would leave 50 Democratic yeses, assuming newly independent Kyrsten Sinema is on her best Democratic behavior. In any other case, that tie would go to the runner. But because Dianne Feinstein is AWOL indefinitely with a bad case of the shingles and dementia to boot, and remote voting on the Senate floor is disallowed, Su only has 49 votes in support.
The AFL-CIO, which supports Su, is gearing up for a significant battle. The trade union federation has already put six figures into digital advertising on Su’s behalf and is working on a nationwide campaign to drum up support, drawing on rank-and-file membership as part of a 50-state phone-banking campaign. There is, indeed, plenty of pressure on Democratic senators, including on Manchin, to fall in line. “The fly in the ointment is Feinstein,” said Steve Smith, deputy director of public affairs at the AFL-CIO.
Given that those gig economy–backed firms have been previously willing to spend nine figures on working around a classification law in just a single state—they’ve backed similar campaigns in places like Massachusetts and Illinois, as well—we can expect that plenty more money will be spent. Especially if these firms view Su as the primary enemy from California’s classification fights. (A spokesperson for the gig economy firm Flex said in an email that the organization has not taken an official position on Su but that it continues “to be deeply concerned” about her record, and that “the next Labor Secretary must embrace the flexible earning opportunities that app-based platforms have unleashed.”)
The National Restaurant Association, which is representing the fast-food franchises also lobbying against Su, has already notched some massive victories in Biden’s Washington. They helped usher the $15 minimum wage plan in the American Rescue Plan Act in 2021 out of the final legislative text. Minimum wage increases have scarcely been mentioned by the president since.
Su is expected to be voted on by the Senate by Memorial Day, meaning the race is on over the next few weeks. Organized labor will continue surging support; even Marty Walsh himself is working the phone on Su’s behalf. To be clear, Su is not some firebreathing red. She’s basically a highly credentialed policy wonk continuing Walsh’s work, which perhaps Walsh can convince Manchin of. But if Feinstein doesn’t convalesce and return to Washington within a few short weeks, Su’s path to confirmation is extremely narrow.
That would leave Biden with a handful of interesting options. Su, already serving as acting labor secretary after being confirmed as deputy labor secretary in a 50–47 vote in 2021, could continue right on as acting labor secretary, unconfirmed. This was a core and constant practice of the Trump administration. But Biden loves norms and might be uncomfortable with that practice. In any case, that action would signal a marked change in his willingness to bend the rules of decorum to get around Republican intransigence.
The other alternative, of course—the failsafe, staring-us-in-the-face, plainly obvious, undeniable, and super-effective solution—would be for Dianne Feinstein to retire. I mean, Jesus. Su’s elevation would be a triumph for California Democrats broadly, and Feinstein’s absence may block it entirely. Feinstein is hurting her state party, as well as her national party, in a way that’s even more glaringly obvious than the way she has backlogged the judicial confirmation process, or undercut Biden’s environmental policies. One EPA pollution standard that the president enacted would have prevented 2,900 deaths, 6,700 hospital and emergency room visits, and 18,000 cases of childhood asthma. But in late April, a repeal of that standard came up for a vote in the Senate and passed 50–49, with Manchin voting with Republicans and Feinstein absent.