A couple of meetings ago a handful of public commenters stepped to the microphones with a notably coordinated pitch: retail theft was a big problem in Costa Mesa, and, according to these commenters, there was one clear solution. The city needed to pass an ordinance regulating self-checkout machines at grocery and other retail stores to require that the machines be better attended by actual employees, ideally one employee for every two machines.

If that recommendation seems awfully specific, that’s because it is: it is exactly the recommendation of three city council members from the City of Long Beach, who recently prevailed on their fellow members to instruct the Long Beach city manager to study just such an ordinance. And even the Long Beach proposal should sound oddly familiar. It happens to closely resemble SB 1446, a failed piece of legislation from Sacramento’s last session that would have mandated such regulations statewide.

So what is going on here? And why is this idea, which died in committee even with a very pro-labor CA legislature, trying to make a comeback in Long Beach and now Costa Mesa?

Municipal activism: why no bad idea ever dies in CA

Have you ever wondered why certain ideas just hang around in California?

For example, back in 2010, then-Governor Arnold Schwarzenegger vetoed a single-use plastic bag ban that had passed the CA legislature. Obviously this wasn’t enough to kill it; that same year, Los Angeles went ahead with its own plastic bag ban in spite of the state-level veto, and San Francisco, Santa Monica, and Alameda County did as well. Eventually, the idea returned in 2017 and gave us the current statewide ban we all know and grudgingly tolerate.

This strategy, known alternatively as “municipal activism” or “progressive federalism”, is a very common tactic in California. Did your hyper-progressive bill somehow fail to get through the very favorable audience of the state legislature and the governor? Never fear: despite being too left-wing for the left wing, there is still another way! You can simply skip state-level law all together and lobby municipalities one-by-one. Pick off enough cities and counties and, in a few years, you’ll build enough momentum to take another shot at a state-wide rule.

And more often than you might think, this strategy is a winner. Not only do we have this approach to blame/thank for the plastic bag ban, it has also been critical to the ultimate passage of statewide rent control, soda taxes, and bans on plastic straws.

But nobody uses this approach better than organized labor.

Municipal activism is tailor-made for labor activism

There is one catch to the “municipal activism” approach: it requires a lot of resources and a lot of boots-on-the-ground to pull off. And that is because local jurisdictions are almost universally wary of outsiders bearing material policy changes. So the only way this strategy works is if the changes at least have the appearance of grassroots support.

And that is where statewide labor organizations excel. To their credit, this is largely because they are local grassroots organizations. But what sets labor apart is that it usually has a unified statewide agenda and the massive resources necessary to fund, organize and implement statewide campaigns.

So it is no surprise that labor routinely utilizes municipal activism when they hit a policy setback in Sacramento. State laws increasing the minimum wage, creating a special healthcare worker minimum wage, and mandating paid sick leave all followed the pattern of being rejected at the state level, later adopted by multiple municipalities following labor pressure, and then riding local momentum to ultimate passage into California law.

But not every attempt at municipal activism reaches of the promised land of statewide regulation. For example, the so-called “fair scheduling” law, which would have required employers to give reasonable notice of weekly working schedules to their employees, has never become state law even though cities such as San Francisco and Emeryville adopted it following its failure in Sacramento in 2016. “Hero pay” increasing the minimum wage for front-line workers during the COVID-19 pandemic similarly spawned local copycat ordinances, including in Long Beach, but never made it back to the state house.

And therein lies my problem with municipal activism. In all of these cases, the reform’s proponents got it right the first time: labor laws should be enacted at the state level, not the local level. California’s labor markets are often crisscrossed by many city and county lines, so by adopting statewide rules, complication and competition between municipalities based on employment rules are kept in check. If instead bespoke local rules were allowed to proliferate, only big businesses with plenty of compliance resources would be able to effectively operate in multiple jurisdictions. But municipal activism’s strategy risks just that outcome. If the gambit doesn’t work and a statewide rule is never adopted, California is left with weird little rules dotting the municipal landscape, leaving everyone worse off.

Self-checkout regulation at the local level is everything bagel progressivism

Which brings us back to self-checkout. The thing is, I personally dislike self-checkout. I’ll use it as a time-saving convenience, but I’m enough of a small-c conservative to really miss the casual interaction with an actual human being that checking out my purchases the old-fashioned way affords. And as a relatively petite woman, I find stores devoid of both customers and visible employees rather creepy. In the past when shopping late at night, I would gravitate towards to front of the store if I felt like someone was acting out of the ordinary. Now I can’t rely on anyone actually being at the front of the store. Those little frictions add up to a less enticing shopping experience.

BUT: other than withholding my purchases and voicing my opinion to the manager, I don’t think it’s my place — or the city’s — to tell a business how to run things. If a poor approach to self-checkout is driving away business and inviting retail theft, then the business, and not some distant regulator, is best positioned to judge the cost of those issues and adjust accordingly. The only way direct regulation of a business’s operations make sense on the local level is if the business’s approach creates some negative externality for the city. In other words, I’m ok with local regulation if a business runs its operations in such a negligent way that it becomes a magnet for crime, and thus a public nuisance.

One such example of this distinction is the heightened requirements placed on cannabis stores around security precautions. As cannabis retail stores occupy something of a legal gray area and thus cannot process credit card payments, they are all almost entirely cash businesses. It is reasonable to believe that holding significant cash on the premises could make those businesses targets for crime. Accordingly, Costa Mesa’s cannabis ordinances require 24/7 security patrols onsite.

But melons and lettuces aren’t blunts. And, if retail theft is so prevalent that we have to functionally mandate privately funded security patrols for grocery stores, then we’ve really gone off the rails as a city. I’m skeptical we’re at that point. Groceries operate on tiny margins; if the self-checkout devices were costing them more in product losses than the reduced headcount saves them money, I would think they would be ripping them out on their own. Amazon just did a version of this course-correction when it abandoned its “just walk out” technology, in favor of other kinds of automated checkout approaches.

Instead, larding up our municipal code with all kinds of ticky-tacky labor laws is likely to make running a business in Costa Mesa or in Orange County more generally just a little bit worse. First, regulating around rapidly changing technology is extremely difficult; as the Amazon example shows above, any ordinance we write is likely to be out-of-date before we even adopt it. And second, from a practical perspective, it is difficult enough for small businesses to try to stay on top of state labor law requirements. When you add local ordinances to the mix, operating across jurisdictions becomes immensely difficult for smaller operations. But big businesses are already kitted out with lawyers and compliance departments that can manage these local eccentricities just fine. In fact, the big players welcome such complexity, because it drives their smaller competitors out of business. Less competition in the retail grocery market can lead to higher prices, fewer stores, and, in the long run, fewer grocery jobs than you would have had if you’d just let innovation run its course.

And this is exactly what happens when municipalities try to glom on too much feel-good stuff. As Ezra Klein wrote when he coined the term “Everything Bagel Liberalism”:

Everything bagels are, of course, the best bagels. But that is because they add just enough to the bagel and no more. Add too much — as memorably imagined in the Oscar-winning “Everything Everywhere All at Once” — and it becomes a black hole from which nothing, least of all government’s ability to solve hard problems, can escape. And one problem liberals are facing at every level where they govern is that they often add too much. They do so with good intentions and then lament their poor results.

Ezra Klein, “The Problem with Everything-Bagel Liberalism” (emphasis mine)

Protecting workers is good. Self-checkouts might well be bad. But adding a bunch of little municipal labor regulations everywhere is not good. Especially when it is likely in service of a reasonably cynical political ploy that may-or-may-not bear fruit. It will certainly leave Costa Mesa with a weirdly specific ordinance to enforce on its own, perhaps for many years, before any state law comes along to provide preemptive relief. So I hope the City Council will look at this one skeptically. Because if past practice is any guide, it is almost certainly coming to Costa Mesa, sooner rather than later.