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November 18, 2020

Through the Looking-Glass

In his sequel to Alice in Wonderland, Lewis Carroll depicts a fantastical world in which his heroine finds that, like a reflection in a mirror, everything is reversed, including logic. Since Through the Looking-Glass was published in 1871, the idiom has come to describe situations where you find the opposite of what is normal or would be expected.

This frame of reference often pops into my mind as I observe our elected officials and regulatory agencies in California.

As our members can attest, the nonsensical and compounding regulatory burdens placed on businesses over the past several decades have taken much of the luster off the “California Dream.” No longer dreaming big, many business owners have succumbed to the relentless march of the regulatory state and now simply seek to keep their businesses alive against the onslaught.

I recently ran across a seemingly routine announcement from a state agency that was jarring, at least to me, as an example of the absurdity of the state’s regulatory demands.

The California Department of Industrial Relations announced the launch of a program by the Labor Commissioner’s Office to “help employers understand California labor law.”

The State of California is using your tax dollars to hire a private company specializing in payroll and human resources, to conduct a series of webinars for confused employers trying to understand the knotted mass of California employment laws and regulations. Truly a Through the Looking-Glass moment.

Like so many other aspects of the state’s regulatory reach, California employment law has become an electrified fence maze in which the walls shift without reason and once-safe paths are suddenly blocked without explanation.

This can’t be dismissed as exaggeration when the state itself feels compelled to retain private sector consultants to try to help employers avoid the fines, penalties and lawsuits that have come to define their experience with California labor law.

Perhaps our state’s elected leaders should consider unplugging the electrified maze and simplifying the pathway through.

The Enlightenment-era French political philosopher Montesquieu, who deeply influenced the framers of the U. S. Constitution, posited that laws should be easy to understand so that citizens might be able to protect themselves from punishment for breaking the rules. This novel concept resonated with our Founding Fathers and helped shape our system of limited government.

Unfortunately, in the two-plus centuries since our Constitution was written, the law has become, “so complex and voluminous that no one, not even the most knowledgeable lawyer, can understand it all,” according to Jay Feynman, Distinguished Professor of Law at Rutgers Law School. Consequently, California businesses are left to employ expensive armies of lawyers and compliance officers to try to avoid running afoul of the state’s convoluted regulatory scheme.

Former Governor Jerry Brown acknowledged this problem in a little-noticed remark during his tenure as Attorney General in 2009. “The whole framework of law is crucial for the operations of business enterprises,” Brown told Legal Newsline. “But when over prescriptive, it creates a huge and growing amount of overhead and it does seem that we’re reaching the point of counter-productivity.”

Expanding on the point, Brown said: “We are moving every year to add more and more legal prescription to our lives, to our organizations, to our businesses and how we all function…We’re overlaid too much with too many rules.”

Brown didn’t exactly relieve employers of the state’s crushing regulatory burdens in his final terms as Governor, but the wisdom of his warning is only more powerful 11 years later.

There is a propensity of our elected and appointed officials to pursue new laws and rules without seriously assessing the entire body of laws and rules already in place. New laws and rules make for nice press releases about some action that will show how the government is protecting us from some bad thing.

But as Jerry Brown observed, too many laws and rules are a bad thing, too. We’ve reached that point, and many business owners are motivated to move away.

While it is more difficult to do when land is your primary asset, companies in the agriculture sector are increasingly looking for the exits. Many of our members privately tell us their plans for expansion do not include California, and we have documented tens of thousands of acres that have already left for other states and countries.

I am enthusiastically committed to pressing for regulatory sanity, but if California’s political leaders won’t answer that call, we must help our members work around them.

Technology innovation is the beacon of hope. Automation in our fields and facilities reduces exposure to the maze of trip wires that defines California labor law. Technology improvements in irrigation and fertilization reduce exposure to increasingly impossible regulatory demands for efficiency and precision nutrient application. In these and many other aspects of our agriculture endeavors, innovative technology can enable survival and success even in the California labyrinth.

Every generation of farmer has faced seemingly insurmountable challenges, whether from Mother Nature or the actions of humans, and each has responded with an indomitable mix of ingenuity and hard work. That same innovative spirit thrives in our Western Growers Center for Innovation & Technology, and in countless fields across California, Arizona and beyond. Collectively, the innovations born out of these efforts will allow our industry to prosper in an era of diminishing resources and ceaseless regulatory demands.

In an ideal Wonderland, the government would operate as Thomas Jefferson envisioned in his First Inaugural Address, leaving its citizens “free to regulate their own pursuits of industry and improvement.” Unlike Alice, however, Californians for now remain in the illogical world on the other side of the mirror. Let us focus even more of our energies on technology innovation to make it back to the other side.