The 2020 election will be dissected for months to come with plenty to scrutinize.
Everything from polling errors to demographic changes in the electorate to vote counting methods have created enough fodder for talking heads to ruminate on until the next election. There is little to add to those conversations that would not be trite takeaways at this point.
Instead, I want to turn your attention to a lone northeast state where a little-known ballot measure passed overwhelmingly without much fanfare and could have lasting implications for our industry.
The state is Massachusetts and the ballot measure was Question 1, also titled the “Right to Repair Law” Vehicle Data Access Initiative. To most voters, the innocuous title didn’t say much about what was at stake in the ballot measure and, by many accounts, voters in Massachusetts were left to wonder why they were being inundated with ads that did little to explain more. And there were a lot of ads.
The ballot measure became the most expensive in the state’s history with over $51 million being spent by proponents and opponents, yet the “Right to Repair Law” passed with nearly 75% voting in favor.
The 2020 measure was not the first year the right to repair issue appeared on the ballot in Massachusetts. In 2012, proponents of right to repair, unable to pass legislation on its own merits, qualified a ballot measure titled the “Right to Repair” Initiative – or Question 1.
After the measure qualified for the ballot, a legislative compromise was made on the last day of the legislative session to avoid the potential ballot measure passing. However, Question 1 remained on the ballot despite the legislative compromise and eventually passed with 87.7% of the vote.
That first ballot measure required auto manufacturers to provide nonproprietary diagnostic information directly to consumers that was necessary to perform repairs. After the ballot measure passed in 2012, auto manufacturers and right to repair supporters, including independent repair shops, entered into a memorandum of understanding wherein the auto manufacturers agreed to provide the same level of information directly to consumers in all 50 states.
The intent behind the MOU was that neither side would pursue further legislation or ballot measures to avoid a patchwork of different requirements throughout the country.
Revisiting right to repair
Fast forward to 2020 and it appears that the MOU became worthless as right to repair advocates once again returned to the ballot box with another direct democracy initiative, this time circumventing the legislative process altogether. That begs the question, what changed?
Proponents of the ballot measure argued the 2012 MOU covered wired diagnostic interfaces, which are becoming obsolete as manufacturers turn to built-in cellular modems that transmit data wirelessly.
But manufacturers decided to put up a fight this time around. They poured $26.6 million into defeating the ballot measure with the vast majority of contributions coming from five different auto manufacturers (GM, Toyota, Ford, Honda, Nissan).
Their ads centered on security risks created by opening up telematics data to anyone and everyone. They even used ads that depicted sexual assault victims being put at heightened risks from stalkers having access to their personal information.
Automotive repair parts retailers countered. They responded to manufacturers contributions by raising $24.9 million and released ads that focused on a consumer’s ability to choose independent repair shops instead of being forced to use dealerships.
Although the focus of the ads was on protecting independent repair shops from corporate manufacturers, the vast majority of funding came from national auto parts chains, such as AutoZone, Advance Auto Parts, and O’Reilly Auto Parts.
The result of all that money spent was voters went with their first impression that came from reading a misleading ballot title. After all, who wants to vote for their “right” to being taken away?
The bottom line: After spending nearly $30 million, manufacturers were dealt a 50-point loss by Massachusetts voters who affirmed their right to repair.
Ballot measure peril
It should be clear to readers of this article and others we’ve published that the so-called right to repair debate has nothing to do with any right being infringed upon. In fact, our industry mantra as it pertains to this topic is that we support the right to repair, not to modify.
We have adopted the vernacular of right to repair advocates because they clearly beat us to the punch on disputative semantics of the issue, which is better understood as the Aftermarket Act. That is how right to repair is referred to in other countries, including Australia and the European Union. The money behind the ballot measure in Massachusetts bears this out in concise fashion.
Labeling it Right to Repair belies all the nuanced consequences this issue poses to copyright protections, emissions criteria, safety standards and the actual right of freedom of contract versus centralized planning of our economy. These are complex issues that do not arise from first blush after reading the Massachusetts ballot measure title, which is why after being introduced in well over half the state legislatures in this country, not a single right to repair bill has passed.
At four pages long and full of technical language and legalese, the Massachusetts ballot measure and all its unintended consequences is not the type of issue suited for direct democracy where voters are not fully informed of what is at stake and are forced to give an up or down vote on complex language.
Massachusetts hardly takes the cake on this problematic scenario. California voters passed a ballot measure update to the California Consumer Protection Act totaling 51 pages that would take a team of attorneys experienced in that area of a law at least a week to untangle.
The Massachusetts Right to Repair ballot measure was one of over 120 ballot measures that appeared in 32 different states during this recent election cycle. Overall, it was the sixth most expensive ballot measure in a year where over $860 million was spent on just the top 10 most expensive direct democracy initiatives in the country.
To put that into perspective in a year of extravagant political spending, the Trump campaign and affiliated PACs raised a total of $646 million during the entire 2016 presidential campaign.
Shortly after the “Right to Repair Law” ballot measure was passed in Massachusetts, proponents of the issue were quick to point out there is no difference between automobiles and farm equipment, and they would be seeking to extend their success into other states. With the ability to tout that 75% of voters testified through the ballot box they want their right to repair, it makes the challenge of defeating legislation that much more difficult.
The oversimplification of this issue does not lend well to a direct democracy initiative either, as auto manufacturers can now attest to as they lick their wounds and figure out how to comply with the new law’s effect that will not be contained to the borders of Massachusetts.
Surely it can be said that a legal challenge should have been made to the ballot title on the grounds that it was misleading. But the reality is that complex issues should remain in the domain of the legislature and handled through our representative form of government, not through direct democracy.
The prevailing populist impulses of our day decree that everything is a right and policymaking requires no special expertise. If you buy that, then farm equipment manufacturers will soon have something they’ll be forced to sell you.
Podcast By Eric Wareham
ERIC WAREHAM is the vice president of government affairs for the Western Equipment Dealers Association. He is a graduate of the Willamette University College of Law and Augusta State University. Eric may be reached by writing to email@example.com.