Conservatives Learning About Lawfare, by Shawn Steel
Conservative lawyers steal page from progressive playbook
March 15, 2019 at 10:51 am
For liberals, legislative defeats are just a temporary setback until the real battle begins in court.
Whether it’s environmentalists shutting off water to Central Valley farms or the ACLU demanding sex changes for prisoners, left-wing groups have long used the courts to advance their political agenda. Now, the Resistance has taken it one step further with 46 taxpayer-funded state lawsuits against the Trump administration.
Conservatives have been quick to criticize activist judges legislating from the bench and slow to match the left’s artful use of lawfare as a political tactic — until now. Conservatives are slowly awakening to the importance of lawfare and how legal challenges can thwart the progressive agenda.
What can conservative lawfare accomplish?
Harmeet Dhillon, my RNC counterpart and California RNC committeewoman, just filed suit seeking to prevent the powerful teachers’ unions from taking dues via mandatory paycheck deductions/
Dhillon is following last year’s Janus decision, which restored the First Amendment rights of thousands of union workers. The National Education Association lost 72,325 dues-paying members. More than 6,000 teachers left the New York State United Teachers. According to federal Bureau of Labor Statistics reports, 86,000 workers in California dropped their unions over the past year. That’s a 5 percent net drop in union enrollment.
“Until Janus, California’s government unions could force public servants to pay the unions,” explains Mark Bucher, founder and CEO of the California Policy Center, which has helped educate union members about their rights. “That coercion allowed union leaders to collect $2.7 million per day — about $1 billion per year. No other political player in the state even comes close, and that makes our union leaders the unelected rulers of California.”
Conservative lawfare is challenging fake news peddled by the mainstream media. Nicholas Sandmann, the Covington Catholic High School student unfairly vilified for attending a pro-life march, filed suit against the Washington Post and CNN for “using its vast financial resources to enter the bully pulpit by publishing a series of false and defamatory print and online articles … to smear a young boy who was in its view an acceptable casualty in their war against the president.”
News reports that Sandmann’s attorneys have “sent preservation letters to more than 50 media organizations, celebrities and politicians — including The Post, The New York Times, Sen. Elizabeth Warren, D-Mass., and actors Alyssa Milano and Jim Carrey — the first step in possible libel and defamation lawsuits.”
Last year’s Supreme Court 7–2 decision in Masterpiece Cakeshop gave the owner permission to refuse certain services based on his First Amendment claim of free speech and free exercise of religion. The conservative lawfare Alliance Defending Freedom took the case to the Supreme Court, defeating the ACLU.
Harmeet Dhillon represented the Young America’s Foundation and Berkeley College Republicans in their legal challenge to UC Berkeley’s censorship of conservative speakers Milo Yiannopoulos, Ann Coulter and David Horowitz. Under the settlement, UC Berkeley not only changed its “Major Events Policy” and security fee schedule but also paid out $70,000 in attorney’s fees. My firm along with Freedom X 1st Amendment pioneer Bill Becker represent several injured participants at the Berkeley riots when Milo attempted to speak.
Conservative lawyers throughout the country are fighting battles defending the First, Second and Fifth Amendments with success. Nonprofit law firms such as the Pacific Legal Foundation, the libertarian Center for Individual Rights and the Becket Fund for Religious Liberty are making dramatic legal precedents and proliferating. George Mason University renamed its law school the Antonin Scalia Law School. Spontaneously, hundreds of lawyers and firms are building a nationwide movement of conservative lawfare warriors to challenge the progressive agenda. This is a big step toward developing a national network of conservative and libertarian lawyers to share tactics toward defeating the left.
ShawnSteel is a trial attorney, Republican National Committeeman and former California Republican Party chair.