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May 15, 2015

Johnson seeks nonbinding referendum on $15 minimum wage

As the Republican-controlled Congress prevents an increase in the federal minimum wage, more states and cities have begun pushing for standards of their own. But Philadelphia and Pennsylvania have not yet been caught up in the tide of minimum wage increases sweeping the nation.

Beginning with the successful 2013 effort to increase the minimum wage in the Seattle suburb of Seatac, $15 an hour has been the magic number for advocates. A year and a half later, Seattle and San Francisco have raised their wage floor to that level, Los Angeles is approaching it (and already increased it for hotel workers), and Chicago increased to $13. Oakland and Washington, D.C., are lagging a bit further behind.

“The goal of the ballot question is to demonstrate to elected officials that there is overwhelming support for higher wages. The ballot question is a way to generate quantifiable popular support for this important issue.” – Philadelphia City Councilman Kenyatta Johnson

In the 2014 elections four red states approved smaller minimum wage hikes, while Oregon is considering the $15 option, and New York Gov. Andrew Cuomo is spurning a recalcitrant Republican state senate by pursuing a statewide raise for fast food workers.

Things have been quieter on the home front.

The Republicans have controlled all branches of government in Harrisburg during much of the excitement, although Gov. Tom Wolf now promises to fight for a raise to $10.10 in his first budget. Philadelphia is as Democratic as cities come, but the last time the state raised its own minimum wage, Republican lawmakers agreed only on the condition that a new clause be added to the law preempting any municipality in the state from acting on its own.

But last year, the local branch of the activist group 15 Now, made famous by its role in the Seattle victory, released a carefully prepared legal memo arguing there is a loophole in the state’s preemption clause.

At the time, Philadelphia Councilman Kenyatta Johnson — who is locked in the most competitive district city council race — made supportive noises. Johnson announced Thursday that he is seeking to put a question about raising the city’s minimum wage to $15 on November’s ballot as a nonbinding referendum. (The actual legislation was introduced by Councilman Wilson Goode Jr. on behalf of Johnson, who was absent due to a death in his family.)

A nonbinding 2014 referendum in Chicago showed sizable support for a minimum wage hike and helped push that city's big wage increase.

Carlos Hernandez-Sosa, center left, holds a sign in support of Seattle's $15 minimum wage measure during a June 2014 meeting of the Seattle City Council, which eventually passed the $15 minimum wage measure later in the meeting. (Ted S. Warren, File / AP)

“The goal of the ballot question is to demonstrate to elected officials that there is overwhelming support for higher wages,” Johnson said in an email. “The ballot question is a way to generate quantifiable popular support for this important issue.”

The difference, of course, is that after Chicago lawmakers saw that support, they could easily pass a law to raise the wage. 

Legal experts, including the city’s Law Department, say the loophole argument 15 Now is making in Philadelphia is invalid. Attorney Lewis Rosman said the group’s position “simply holds no water” and that “the words of the provision are not in the least bit ambiguous.”

A Philadelphia attorney familiar with the issue says he wouldn't reject the loophole argument as quickly.

"I’m not as dismissive of it as the law department but I’m not as convinced as 15 Now,” said David S. Senoff, a partner at Caroselli Beachler McTiernan & Coleman. "I don’t think it’s the kind of case where the court would look at it in and laugh it out of court. Most statutes do not have a declaration of policy as specific as the minimum wage act does.

"Add that to the idea that the home rule charter gives the city the power to fix municipal problems that are unique to Philadelphia," he continued. "But preemption is a very strong legal doctrine. It’s very clear they inserted this section in 2006 to preclude just these kind of enactments.”

Nonetheless, 15 Now hopes that if the question in support of a $15 minimum wage is placed on the ballot and passed by a large margin, they could then push the city council to adopt binding legislation. If more progressive voters turn up to vote for the popular wage hike – the group notes polling that shows strong support – 15 Now hopes they will also vote in the elections for three of the seven seats on the state Supreme Court. A more liberal court, its members believe, would be more likely to side with their interpretation of the preemption clause.

15 Now has at least one powerful ally behind it. The press release announcing Johnson’s move included contact info for both the small activist group and the huge Service Employees International Union’s (SEIU) 32BJ, which has 22,000 janitorial and other building support members in Pennsylvania alone. 

 “If, in November, we elect a Democratic Supreme Court, there is a possibility that the minimum wage increase will be upheld,” said 32BJ spokeswoman Traci Benjamin.

There are those who are pushing for minimum wage increases at the state level, too, including Democratic state Sen. Daylin Leach, Montgomery County, who introduced a bill that would raise the state minimum wage to $15, and Gov. Wolf. Recent hearings on wage increases in Harrisburg have revealed that some Republican lawmakers are not totally hostile to the idea. But even if an increase to the statewide minimum wage can be obtained, most observers agree that the preemption clause will stay in place, at least this year.

Given that the partisan composition of the legislature is not expected to change significantly in the near future, 15 Now and its mammoth ally seem committed to their loophole argument, no matter Rosman’s stinging analysis.

In either case, it looks to be a long time yet before Philadelphia sees $15.