Learning to win

By John Tillman 
Real Clear Wire

The following is an excerpt from “The Political Vise” by John Tillman.

JUNE 27, 2018. UNITED STATES SUPREME COURT. WASHINGTON, D.C.

It had to be today. It was Wednesday, the last day for opinions. We'd come on Monday and Tuesday, just in case, but we had a feeling that our case would be among the very last to be decided. As I took my seat in the middle of the august and stately chamber, I reminded myself to keep breathing. The next time you stand up, I told myself, you'll know. The next time you stand up, we may have won. I willed myself not to contemplate the other possibility.

Our case was called Janus v. AFSCME. Mark Janus worked as a child support specialist for the State of Illinois. Mark devoted his career to ensuring that often vulnerable kids got their needs met. When he was hired in 2007, Mark was stunned to find that a public-sector union—the American Federation of State, County, and Municipal Employees—deducted money from his paycheck. Mark wasn't inherently anti-union, but he did not share AFSCME's left-wing political agenda. He soon discovered that his preferences were irrelevant. Illinois law—and Supreme Court precedent—allowed public-sector unions to collect dues from anyone covered by their collective bargaining agreements, even if those employees did not want to join or support those unions.

Mark is a brave and principled man. He knew a basic truth: you can't be for big government, big taxes, and big bureaucracy and still be for the little guy. He was also tough: he'd been an Eagle Scout and later a Scoutmaster. He had the character and the determination to buck the nation's largest public employee union and take them all the way to the Supreme Court.

Cell phones are not allowed in the Supreme Court chamber, so we had to do what people in this same situation have done for eons: make small talk and check out the room. As we waited, I kept replaying an exchange from four months earlier, when the Court had heard oral arguments. Justice Anthony Kennedy had asked the union lawyer, "If you do not prevail in this case, the unions will have less political influence. Yes or no?"

The AFSCME lawyer had replied, "Yes, they will have less political influence."

Kennedy had fixed him with a sharp stare. "Well, isn't that the end of this case?"

At exactly 9:00, the doors behind each of the nine chairs swung open, and the justices entered. The seconds ticked by. Then, the firm, clear voice of Chief Justice John Roberts: "Justice Alito will read the first opinion."

Those seven words told me we had won. The opinion of the court is read by someone in the majority. Samuel Alito was a committed originalist. We had known from the start that he would be sympathetic to Mark Janus—what we didn't know was how many of his fellow justices he could convince to join him. Would our victory be narrow, tailored to the specifics of the case? Or would it be what we desperately hoped for—a sweeping win for the cause of worker freedom?

As Justice Alito read his decision, I strained to follow his words. The snippets I heard sounded good: "Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns … The State's extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. … Abood is therefore overruled."

This was a sweeping victory for, to use Alito's phrase, "free and independent individuals." A triumph for ordinary Americans who had the basic liberty to choose the causes on which their money was spent. A major win for one brave child support worker named Mark Janus.

But victories like this don't happen by accident. The story of how we got there matters as much as the outcome.

When Governor Bruce Rauner took office in January 2015 and launched an effort to stop unions from collecting dues from non-members, the left responded with lightning speed. The big public-sector unions—AFSCME, the Chicago Teachers Union, SEIU, and the Illinois Education Association—launched sophisticated media campaigns. They vilified the governor in the press, trusting that sympathetic media would paint him as a monster who just wanted to hurt kids and poor people. Union members flooded Springfield, marching loudly through the streets of the state capital. The media, the establishment influencers, and the marchers did their damndest to convey the impression that the vast majority of ordinary Illinoisans rejected Rauner's goal. The Vise was tightening.

If the left in general is very good at operating this kind of coordinated political pressure, the public-sector unions are its absolute masters. We knew we had to build a counternarrative—and we needed a plaintiff with standing. We needed someone who had the courage to be the public face of our fight.

The hard truth is that the left is much better than the right at telling emotion-driven stories. Conservatives want to argue the facts and the law; liberals want to tug at heartstrings. Storytelling—featuring a highly sympathetic victim of some real or imagined injustice—is the left's favorite weapon when the facts and the law are against them. We had the facts. We believed we had the law. Now we needed someone to help us tell the story.

That someone was Mark Janus.

Before oral arguments in February 2018, we held a rally in support of Mark on the front steps of the Supreme Court. The unions held their own rally right next to ours. Something happened that day that still stays with me. The unions sent infiltrators to disrupt our event—a couple of women who came up waving their signs in the middle of our rally.

I asked them, "What are you protesting for today?"

They replied in unison, "Workers' rights!"

"Wow," I said. "We are too! Let me ask you—who should determine your relationship with your union? You or your union boss?"

I could see the wheels turning. "Well, I guess I should be able to decide," one of the women finally said, her tone reluctant and halting.

"Exactly. We completely agree. That is what this case is about."

You could see that their very reality had been challenged. Everything they had been told was turned upside down. None of us abandon our tribes easily. Political persuasion is often more about sowing seeds than creating sudden epiphanies. The women returned to their rally—but with their enthusiasm markedly diminished.

When Mark himself appeared, walking toward the court, the union crowd surged toward him, intimidation on their minds. Our side—with our signs that read "We the People"—held our ground. Mark turned to one of my colleagues: "This is overwhelming. I am not sure I can go through with this." My colleague offered words of reassurance. I saw Mark scan the faces of the large crowd there to support him. Encouraged by what he saw, he took a deep breath, gathered himself, and resumed his journey into the court and into history.

More than seven years later, what I find so moving about the Mark Janus story is that it encapsulates a basic truth: the American system can still work for the little guy. It is easy to believe that "We the People" has been replaced by "We the Elites" or "We the Corporations" or "We, Your Betters." The reality is that sometimes the good guys win—and those victories are not just luck. They are the consequence of courage, commitment, and a canny understanding of how to use political power on the people's behalf.

The left does not give up. After every defeat, they double down, mobilize, and probe for further weaknesses. I give them credit for their tenacity, their savvy, their relentlessness. Rather than lament their success, we need to match them, then surpass them, then defeat them.

I am not just optimistic that we can win. I am certain that we will – if we have the clarity to understand how power is accumulated, how it is deployed, and how we can use it to reclaim our liberty.

John Tillman is CEO of the American Culture Project. 
 
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