Illinois Liberty PAC v. Madigan, et.al.
Filing
197
MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 9/7/2016.Mailed notice.(jlj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ILLINOIS LIBERTY PAC, EDGAR BACHRACH, and
KYLE McCARTER,
Plaintiffs,
vs.
LISA M. MADIGAN, Attorney General of Illinois,
WILLIAM McGUFFAGE, Chairman of the Illinois State
Board of Elections, JESSE R. SMART, Vice-Chairman of
the Illinois State Board of Elections, HAROLD D. BYERS,
Member of the Illinois State Board of Elections, BETTY J.
COFFRIN, Member of the Illinois State Board of Elections,
ERNEST L. GOWEN, Member of the Illinois State Board of
Elections, JUDITH C. RICE, Member of the Illinois State
Board of Elections, BRYAN A. SCHNEIDER, Member of
the Illinois State Board of Elections, and CHARLES W.
SCHOLZ, Member of the Illinois State Board of Elections,
all in their official capacities,
Defendants.
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12 C 5811
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Illinois Liberty PAC, Edgar Bachrach, and Kyle McCarter brought this declaratory
judgment action under 42 U.S.C. § 1983 against the Attorney General of Illinois and the
Chairman, Vice-Chairman, and other members of the Illinois State Board of Elections, all in
their official capacities, alleging that certain contribution limits imposed by the Illinois Election
Code violate the First Amendment and the Fourteenth Amendment’s Equal Protection Clause.
Doc. 65. Early in the litigation, the court denied Plaintiffs’ motion for a preliminary injunction
due to a low likelihood of success on the merits. Docs. 43-44 (reported at 902 F. Supp. 2d 1113
(N.D. Ill. 2012)). The Seventh Circuit summarily affirmed, stating: “We agree with the district
court that [Plaintiffs] have not shown that they are likely to succeed on the merits of their
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challenge to contribution limits in 10 ILCS 5/9-8.5.” 2012 WL 5259036 (7th Cir. Oct. 24, 2012).
This court then dismissed most of Plaintiffs’ claims under Federal Rule of Civil Procedure
12(b)(6), except for the claim—which Plaintiffs added after preliminary injunctive relief was
denied—that the Illinois Election Code is unconstitutional to the extent it classifies legislative
caucus committees as political party committees and thereby treats them more favorably than
political action committees (“PACs”), corporations, and individuals. Docs. 95-96 (reported at
2014 WL 859325 (N.D. Ill. Mar. 3, 2014)). After discovery devoted to that claim, the court
denied the parties’ cross-motions for summary judgment and Defendants’ motion to bar the
expert opinions of Plaintiffs’ expert, Dr. Marcus Osborn. Docs. 162-163 (reported at 2015 WL
5589630 (N.D. Ill. Sept. 21, 2015)). The court held a bench trial on that claim. Docs. 182-183.
Pursuant to Federal Rule of Civil Procedure 52(a), the court enters the following findings
of fact, which are found by a preponderance of the evidence, and conclusions of law. To the
extent that any findings of fact may be considered conclusions of law, they shall be deemed
conclusions of law, and to the extent that any conclusions of law may be considered findings of
fact, they shall be deemed findings of fact. After considering the admissible evidence and the
parties’ stipulations, and upon assessing the witnesses’ credibility, the court finds that the Code’s
contribution limits do not violate the First Amendment or the Equal Protection Clause.
Findings of Fact
A.
1.
Illinois Campaign Finance Law
The Illinois Disclosure and Regulation of Campaign Contributions and
Expenditures Act (“the Act”), 10 ILCS 5/9-1 et seq., which is codified as part of the Illinois
Election Code, recognizes three classes of political contributors: (1) individuals; (2) political
committees; and (3) corporations, labor unions, and other associations. 10 ILCS 5/9-8.5(b).
2
2.
There are several different types of political committees, including candidate
political committees, political party committees, and PACs. 10 ILCS 5/9-1.8(a).
3.
Individuals may contribute $5,000 to a candidate in a given election cycle. 10
ILCS 5/9-8.5(b).
4.
Individuals may contribute $10,000 to a PAC per election cycle; the same limit
applies to an individual’s contributions to a political party committee per election cycle. 10
ILCS 5/9-8.5(c)-(d).
5.
A PAC, defined as a group of people or an organization “that accepts
contributions or makes expenditures during any 12-month period in an aggregate amount
exceeding $5,000 on behalf of or in opposition to a candidate,” 10 ILCS 5/9-1.8(d), may
contribute $50,000 to a candidate during an election cycle. 10 ILCS 5/9-8.5(b).
6.
A political party committee is the state, county, or ward/township committee of a
political party, or a legislative caucus committee. 10 ILCS 5/9-1.8(c).
7.
In contrast to individuals and PACs, political party committees may contribute
unlimited amounts to a candidate during a general election. 10 ILCS 5/9-8.5(b).
8.
During a primary election, political party committees are subject to a $200,000
contribution limit to a candidate for statewide office; a $125,000 limit for state senate elections
and certain judicial and county elections; a $75,000 limit for state representative elections and
certain judicial and county elections; and $50,000 for all other elections. Ibid.
9.
Political party committees may contribute $20,000 to a PAC in a given election
cycle. 10 ILCS 5/9-8.5(d).
10.
The foregoing amounts are adjusted regularly for inflation. 10 ILCS 5/9-8.5(g).
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11.
It is a Class A misdemeanor for a candidate to accept a contribution exceeding the
applicable limit. 10 ILCS 5/9-25.2.
12.
As noted, one type of political party committee is a legislative caucus committee.
10 ILCS 5/9-1.8(c).
13.
A legislative caucus committee is “a committee established for the purpose of
electing candidates to the General Assembly.” Ibid.
14.
A legislative caucus committee may be formed by each of the majority and
minority leaders of the state House and Senate—i.e., the Speaker and Minority Leader of the
House, and the President and Minority Leader of the Senate—or by a committee of five state
senators or ten state representatives of the same caucus. Ibid.
15.
The contribution limits on legislative caucus committees are the same as those
imposed on other political party committees. 10 ILCS 5/9-8.5(b). A candidate may accept
contributions from only one legislative caucus committee per election cycle. Ibid. There is no
similar limitation on a candidate’s receipt of contributions from other political party committees.
16.
An “election cycle” consists of either a primary election or a general election.
1/26/16 Tr. at 207:3-6. Therefore, a political candidate may receive contributions from one
legislative caucus committee during the primary election and from another legislative caucus
committee in the general election. Id. at 209:21-24.
17.
For ease of reference, the court uses the term “political party” to refer to a
political party and its affiliated committees other than a legislative caucus committee, and the
term “candidate” to refer to a candidate and his or her affiliated campaign committee.
18.
Plaintiffs claim that the Act’s treatment of legislative caucus committees as
political party committees, and its favorable treatment of legislative caucus committees as
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compared to PACs, individuals, and corporations, are unconstitutional. 1/25/16 Tr. at 7:17-24.
They argue that legislative caucus committees, though regulated as political parties, actually
have little in common with political parties and are far more similar to PACs. Id. at 9:11-22; see
also Pl. Exh. 1 at 13 (“The benefits provided to Legislative Caucus Committees are unwarranted
because they operate more like political action committees than party committees.”). Because
legislative caucus committees have the potential to corrupt, the argument goes, their
classification as political parties undermines the Act’s anti-corruption justification for limiting
contributions from individuals and PACs and renders the law fatally underinclusive. 1/25/16 Tr.
at 11:3-9.
B.
19.
Illinois Liberty PAC
Illinois Liberty PAC is a political action committee that donates funds to
candidates running for election to the Illinois General Assembly. Doc. 178 at p. 17, ¶ 1; 1/25/16
Tr. at 51:14-21. The PAC provides financial contributions to candidates who support free
market principles. 1/25/16 Tr. at 51:14-17.
20.
Illinois Liberty PAC wishes to contribute larger amounts of money to candidates
for state office than the Illinois Election Code currently allows. Id. at 54:12-15.
21.
If there were no contribution limits (or, presumably, if there were more generous
ones), Illinois Liberty PAC would adopt a different contribution strategy. Id. at 56:6-9.
22.
Illinois Liberty PAC is not aligned with any political party and would support any
candidate that subscribed to a free market philosophy. Id. at 59:13-17.
23.
Illinois Liberty PAC does not advocate for a slate of candidates, and nor does it
determine who sits on legislative committees or who obtains legislative leadership positions. Id.
at 59:18-60:20.
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24.
As a PAC, Illinois Liberty PAC is not beholden to the electorate and may not be
voted into or out of office. Id. at 60:21-25.
25.
The contribution limits placed on Illinois Liberty PAC apply regardless of its
viewpoint or the candidates to whom it contributes. Id. at 61:1-25.
C.
26.
Edgar Bachrach
Edgar Bachrach is an individual who makes contributions to PACs and political
candidates. Doc. 178 at p. 17, ¶ 2; 1/25/16 Tr. at 19:15-21:19.
27.
In the 2012 election cycle, Bachrach contributed $5,000 to Citizens for Babcock,
a campaign committee for Michael Babcock, but he would have contributed more had the Act
not prevented him from doing so. 1/25/16 Tr. at 19:18-21:8.
28.
In the 2014 election cycle, Bachrach contributed $10,500 to Illinois Liberty PAC,
but he would have contributed more if not for the Act’s limits. Id. at 21:15-22:3.
29.
In the current election cycle, Bachrach wants to contribute larger amounts to
Illinois Liberty PAC and to Jeanne Ives, a candidate for the Illinois House of Representatives,
than the Act allows. Id. at 22:4-23:1.
30.
Bachrach is not a “straight ticket voter”—that is, he contributes to candidates
based on the issues they champion, not because he is supporting a particular political party or
because he intends to speak on behalf of a political party. Id. at 23:13-24:3.
31.
Bachrach does not (1) select slates of candidates, (2) determine who sits on
legislative committees, (3) advocate for a particular slate of candidates, or (4) advocate for any
particular candidate to be designated as a legislative leader. Id. at 24:9-25:11.
32.
As a private donor, Bachrach is not voted into or out of office and is not beholden
to the electorate. Id. at 25:17-20.
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33.
The contribution limits placed on Bachrach are the same regardless of his political
affiliation, the political affiliation(s) of the candidate(s) to whom he contributes, or the issue(s)
for which he advocates. Id. at 26:5-27:3.
D.
34.
Kyle McCarter
Kyle McCarter is an Illinois state senator who runs for elected office as a
Republican, fundraises for his campaigns, and spends the contributions he receives to support his
candidacy. Doc. 178 at p. 17, ¶ 3; 1/25/16 Tr. at 29:16-19, 39:24-40:25.
35.
In the 2010, 2012, and 2014 election cycles, McCarter received contributions
from both individuals and PACs, but he would have sought greater contributions from them had
the Act allowed. Id. at 30:6-32:1.
36.
If permitted, McCarter’s current campaign committee would accept contributions
from individuals and PACs in amounts above the current limits. Id. at 32:2-9.
37.
McCarter is the chair of the Common Sense Caucus PAC. Id. at 32:10-17.
38.
McCarter initially testified that he wanted to establish his PAC as a legislative
caucus committee, but that he “could not meet the qualifications” and therefore a legislative
caucus committee “could not be put together.” Id. at 43:23-44:8. He then testified that he
simply elected “not to form [his PAC] as a legislative caucus committee.” Id. at 44:9-45:13.
39.
McCarter testified at trial that he believes that he stopped receiving campaign
contributions from the Republican Illinois Senate leaders (through their legislative caucus
committees) because he opposed them on certain issues. Id. at 39:17-42:1. At his deposition,
McCarter admitted that he could not judge the intentions of the legislative leaders’ actions. Id. at
42:7-43:5.
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40.
McCarter was not aware of any instance in which the Senate leadership used a
legislative caucus committee to fund a senator’s primary opponent because that senator had
previously opposed the leadership. Id. at 48:10-49:16.
41.
McCarter agreed that if an Illinois legislator’s constituents do not approve of who
contributes to him or her, they can vote that legislator out of office. Id. at 35:10-13. But if
McCarter were ever voted out of office, he would retain his position as chair of the Common
Sense Caucus PAC because voters cannot vote him out of his PAC. Id. at 35:16-21.
42.
McCarter characterized a legislative caucus committee as “essentially a PAC”
composed of state legislators. Id. at 33:17-18. For the reasons provided below, the court does
not agree with that assertion.
E.
43.
Illinois Legislative Leaders
The House Speaker, House Minority Leader, Senate President, and Senate
Majority Leader are elected by members of their respective caucuses. Ill. Const. art. IV, §§ 6(b)(d); 1/25/16 at 147:15-24. They may be removed from their leadership positions by members of
their caucus, or be removed from office by the electorate. Id. at 148:3-149:2.
F.
44.
Dr. Marcus Osborn
Dr. Marcus Osborn, Plaintiffs’ expert witness, provides government relations
services through the law firm Kutak Rock. Id. at 69:2-70:7.
45.
Dr. Osborn represents clients before legislative bodies, assists them in developing
political policy strategies, drafts and reviews legislation, and provides policy expertise. Id. at
69:4-11.
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46.
Dr. Osborn has worked in this field since the early 1990s after receiving a
master’s degree and a Ph.D. in public administration from Arizona State University. Id. at
73:14-18; Pl. Exh. 1 at 15.
47.
Dr. Osborn’s dissertation focused on interest groups and how they achieve
influence through campaign contributions. 1/25/16 Tr. at 74:9-15.
48.
Through writing his dissertation, Dr. Osborn became familiar with an extensive
body of academic literature pertaining to interest groups and state legislative and political
operations. Id. at 74:16-25.
49.
Dr. Osborn has served as an expert witness in two cases concerning Arizona
campaign finance law, Arizona Free Enterprise Club v. Bennett and Citizens Clean Elections
Commission v. Bennett. Id. at 70:12-71:4, 76:5-25; Pl. Exh. 1 at 15.
50.
Dr. Osborn’s analysis in this case relied principally on themes and trends in the
academic literature. 1/25/16 Tr. at 127:5-19.
51.
Dr. Osborn’s expert report and testimony do not address any conduct of political
party committees (other than legislative caucus committees) at the state, county, or township
level, including how leaders are selected within those committees or how they contribute to
candidates. Id. at 141:19-146:10. He examined only the legislative caucus committees of the
majority party in Illinois (the Democratic Party) and only those formed by Democratic legislative
leaders (the House Speaker and the Senate President). Id. at 182:7-10.
52.
Dr. Osborn offered three main reasons why classifying legislative caucus
committees as political parties, and not as PACs, is inappropriate: (1) the structure of legislative
caucus committees, unlike that of political parties, amplifies the risk of quid pro quo corruption
in the Illinois legislature; (2) legislative caucus committees employ different candidate financing
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strategies than do political parties; and (3) legislative caucus committees are more susceptible to
interest-group influence than political parties because the donors who contribute to legislative
caucus committees are concentrated more heavily in certain industries than are those who donate
to political parties. For the reasons discussed below, the court finds these points unpersuasive.
G.
53.
Dr. Osborn’s Testimony Regarding the Structure of Legislative
Caucus Committees
Dr. Osborn opined that legislative caucus committees create new opportunities for
corruption because they are “structured to manage the operations of a legislative body.” Pl. Exh.
1 at 2; see also 1/25/16 Tr. at 89:22-90:16.
54.
Osborn opined that this design “enhances the potential for corruption because it
links a policy-making authority directly with a fundraising system.” 1/25/16 Tr. at 78:3-8. He
claimed that, even if there were no evidence that legislative caucus committees actually allowed
for corruption, he would still believe that they were dangerous because “it’s the structure that is
the problem.” Id. at 124:23-125:7.
55.
Dr. Osborn opined that, by contrast to legislative caucus committees, political
parties are “one step removed from the policy-making process, meaning … they are … not
actively involved in the day-to-day legislating or policy-making as a legislator or a governor
would be.” Id. at 84:25-85:4.
56.
Dr. Osborn testified that the legislative leaders have “carrots and sticks” that
enable them to maintain their positions, such as providing caucus members with “plum
committee assignments” or fast-tracking their legislation. Id. at 96:19-25. In his view,
legislative caucus committees provide an additional carrot by allowing legislative leaders to use
campaign contributions to advance their own policy agendas. Id. at 97:18-25.
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57.
Dr. Osborn opined that this structure creates opportunities for quid pro quo
corruption, as a legislative leader theoretically could say, “Unless you vote for this bill, you will
not receive contributions.” Id. at 98:1-15. Therefore, by combining the policy-making function
of the legislative leaders with the extraordinary fundraising power of the legislative caucus
committees, Illinois has created novel opportunities for corruption. Id. at 101:9-14.
58.
The court does not find persuasive Dr. Osborn’s testimony that legislative caucus
committees are materially closer to the policymaking process than are political parties. It is
naïve to think that political parties do not wield significant influence over legislative agendas—
in fact, that is a principal purpose of political parties. See FEC v. Colo. Republican Fed.
Campaign Comm., 533 U.S. 431, 476 (2001) (Thomas, J., dissenting) (“The very aim of a
political party is to influence its candidate’s stance on issues and, if the candidate takes office or
is reelected, his votes.”) (internal quotation marks omitted); id. at 477 (Thomas, J., dissenting)
(“[A party’s influence with candidates] is simply the essence of our Nation’s party system of
government. One can speak of an individual citizen or a political action committee corrupting or
coercing a candidate, but [w]hat could it mean for a party to ‘corrupt’ its candidate or to exercise
‘coercive’ influence over him?”) (internal quotation marks omitted). Even Dr. Osborn admitted
that political parties seek to shape policy, albeit only at “a very high level.” 1/25/16 Tr. at
161:11-18. As a practical matter, there is often overlap between state party officials and
legislative leaders. For example, Michael Madigan serves as Speaker of the House, chair of the
Democratic Majority legislative caucus committee, and chair of the Illinois Democratic Party.
1/26/16 Tr. at 259:2-12. This fact further undermines Dr. Osborn’s assertion that legislative
caucus committees are materially different from political parties because they are “closer” to the
legislative process.
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59.
The court further finds that the features of legislative caucus committees do not
create enhanced opportunities for corruption. Unlike PACs and individuals, legislative leaders
owe their legislative seats to the primary and general electorates and their legislative leadership
positions to their respective caucuses. If they abused their positions as legislative caucus
committee chairs by pursuing personal policy agendas—as opposed to agendas favored by their
constituents and/or their respective parties—or by financially coercing legislators for votes, they
could be removed from their leadership positions by their caucuses or from their seats by the
electorate. 1/25/16 Tr. at 97:1-5 (Dr. Osborn testifying that a leader’s “carrots and sticks … have
to be judiciously handled to make sure that the caucus as a whole is content with their
leadership”). Plaintiffs agree that a legislative leader who behaves in a self-aggrandizing manner
inconsistent with the party’s interests could be removed from his or her post, but claim that
“already being in that position gives the leader a lot of control so that a challenge to that leader is
risky, because if you challenge the leader and you fail, he can punish you … by giving you bad
committee assignments [or] by disfavoring your legislation.” Id. at 253:15-20. This concern is
greatly overstated. As Osborn admitted, even without the legislative caucus committees,
majority and minority leaders in the Illinois General Assembly have access to numerous
institutional controls to keep their caucus in check, including other means of fundraising
assistance. Id. at 158:6-159:11. For these reasons, it is difficult to imagine that heading a
legislative caucus committee would give legislative leaders materially more power over their
respective caucuses than they already have by virtue of their legislative leadership positions.
60.
Dr. Osborn also opined that the potential for corruption is further enhanced
because the Act allows a candidate to receive contributions from only one legislative caucus
committee per election cycle. Id. at 101:19-102:6. According to Dr. Osborn, this could lead a
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candidate to be exclusively dependent on a legislative caucus committee for campaign
contributions. Id. at 102:7-103:10.
61.
This testimony is unpersuasive. Legislative caucus committees are far from a
candidate’s only source of campaign funds; for example, candidates may accept large
contributions from political party committees during a primary election and unlimited
contributions from such committees during a general election. 10 ILCS 5/9-8.5(b). Thus, it is
highly unlikely that a candidate would be exclusively dependent on a legislative caucus
committee for campaign contributions; in fact, Dr. Osborne pointed to no such instances.
H.
62.
Dr. Osborn’s Testimony Regarding Legislative Caucus Committees’
Contribution Strategies
Dr. Osborn opined that political parties and legislative caucus committees employ
different contribution strategies and that, because of these differences, legislative caucus
committees are more susceptible to corruption than political parties.
63.
According to Dr. Osborn, political parties typically pursue “an expansion
strategy,” meaning that their “primary and overwhelming goal” of making financial contributions
is to “enhance their numbers, either their numbers of registered voters or the number of
officeholders that they can get elected.” 1/25/16 Tr. at 83:11-84:5.
64.
Also according to Dr. Osborn, the goal of a PAC, by contrast to the goal of a
political party, “is to help set the environment so that [the PAC] can influence a public policy
decision.” Id. at 86:1-3. As such, PACs generally pursue an “access strategy where they’re
trying to supplement their on-the-ground lobbying or influence strategies on public policy with
campaign contributions.” Id. at 86:4-11.
65.
Dr. Osborn’s views pertaining to the strategies of political parties and PACs are
“generalizations” based on “trends and themes” in the academic literature. Id. at 88:4-89:21.
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66.
Dr. Osborn testified that, like political parties, legislative caucus committees have
an electoral interest in maintaining a political party’s numbers in the legislature. Id. at 93:15-22.
But he added that legislative caucus committees have a secondary interest in “managing the
legislative operations on a partisan basis.” Ibid. That secondary interest, according to Dr.
Osborn, can result in “protectionist behavior by a legislative leader [who is] endowed with
certain fundraising advantages and the ability to exclusively finance campaigns.” Pl. Exh. 1 at 5.
67.
To buttress his argument, Dr. Osborn examined the contribution strategies for the
2012 election cycle of two legislative caucus committees: the Senate Democratic Victory Fund,
which is led by the Senate President; and the Democratic Majority committee, which is led by
the House Speaker. Id. at 116:8-19. The Liberty Justice Center, the legal organization that
represents Plaintiffs in this case, compiled the data for his analysis. Id. at 116:20-117:10. Dr.
Osborn chose to examine only those two legislative caucus committees because, as the majority
party, Democrats retain institutional control over the House and the Senate. Id. at 117:14-21.
68.
Dr. Osborn opined that the Senate Democratic Victory Fund’s contributions were
entirely consistent with an expansion strategy because the largest contributions were made to
candidates in close electoral races (as determined by Dr. Osborn based on the ultimate margin of
victory). Id. at 118:13-22.
69.
But the Democratic Majority committee, according to Osborn, engaged in both an
electoral expansion strategy and a “strategy designed to enhance the legislative influence of the
Caucus Committee operators.” Pl. Exh. 1 at 6. Dr. Osborne arrived at this conclusion for two
reasons, neither of which is persuasive.
70.
First, the Democratic Majority committee made financial contributions to
candidates during the primary election cycle, some of whom went on to win the general election
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by wide margins. 1/25/16 Tr. at 119:6-120:8. Dr. Osborn testified that those contributions
would not have been made if the committee’s sole concern was increasing the number of
Democrats in the Illinois legislature; rather, the contributions indicate that the legislative leader,
through his legislative caucus committee, was “trying to hand-select” a particular Democratic
candidate for the general election. Id. at 120:9-16. Dr. Osborn’s theory is that this financial
support is designed to enhance the influence of the legislative leader over the candidate once the
candidate takes her seat in the legislature. Pl. Exh. 1 at 5. The problem with this theory is that
supporting a particular candidate in a primary election is entirely consistent with an expansion
strategy. If the favored candidate’s primary opponent is likely to turn off a majority of the
general electorate—for example, by being too far “Left” or “Right”—or is simply an
unpredictable loose cannon, the party’s chances of winning the seat would be enhanced by
defeating the opponent. The fact that the favored candidate went on to win the general election
by a wide margin does not mean that the primary opponent would have done the same. Indeed,
Dr. Osborn agreed that the electability of a Democratic candidate in a primary election differs
from his or her electability in a general election because “electability in the general election also
frequently depends upon either candidate being able to pull voters from the middle, independent
voters, centrist voters, left-leaning Republicans, right-leaning Democrats.” Id. at 138:6-15.
71.
Second, Dr. Osborn explained that the Democratic Majority committee
contributed to candidates in the general election who ultimately won with margins of victory
greater than five percentage points. Id. at 121:21-122:5. Because those elections were obvious
wins, according to Osborn, contributions to those candidates did not further an expansion
strategy, as those Democrats were not “electorally vulnerable.” Id. at 122:16-123:2; see also
ibid. (“If you’re pursuing a more expansion strategy, you would dedicate high resources into
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either high-risk districts or districts in which you … have the ability to pick up a seat.”).
Essentially, Dr. Osborn asserted that the Democratic Majority did not engage in an expansion
strategy because candidates who won the general election by more than five percentage points
were “safe” and therefore did not need contributions. That assertion is highly unpersuasive. It is
easy to say ex post, with the benefit of hindsight, that those candidates may not have needed
financial support in the general election. But dark horses win elections on occasion, and preelection polls have significant margins of error. When pressed, Dr. Osborn essentially conceded
this point. He was asked if, according to his analytic methods, Senator McCain’s fourteenpercentage-point defeat by then-Senator Obama in Wisconsin in 2008 meant “that all the money
that Senator Obama and the National Democratic Party spent in Wisconsin on the presidential
campaign was wasted money?” Id. at 168:19-169:7. Dr. Osborn responded that pre-election
information probably indicated that the Wisconsin race was going to be close but that, in
hindsight, the party realized that its candidate could have won without additional spending. Id. at
170:7-18.
72.
In an effort to buttress his position, Dr. Osborn later discussed how legislative
leaders would likely draw districts to prevent close elections for their party’s candidates—
thereby providing another reason why the Democratic Majority should have known that those
candidates did not need contributions to win their general elections. Id. at 174:5-14.
73.
This submission also crumbled on further examination. When asked if the fact
that the Republicans took two United States House seats in Illinois away from the Democrats in
the 2014 elections suggested to him “that just because you draw the lines doesn’t mean that you
know how it’s going to come out, and you haven’t really rigged it completely in your favor,” Dr.
Osborn said it would not surprise him if that occurred. Id. at 184:15-185:21.
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74.
There is another defect in Dr. Osborn’s analysis: He never investigated whether
the state’s political parties actually followed an expansionist strategy. Doing so would have
been prudent for at least two reasons. First, it is not at all clear that political parties abide by a
pure expansionist strategy. Defendants claim that political parties “do not blindly pursue
maximization of the representation in the General Assembly; rather, they seek and promote
candidates who, as a general matter, will advance their goals and be loyal team players.” Doc.
178 at p. 46, ¶ 10. This comports with the understanding set forth by the plurality in Randall v.
Sorrell, 548 U.S. 230 (2006), which explained that the “basic object” of a political party is to
“help elect whichever candidates the party believes would best advance its ideals and interests.”
Id. at 257-58 (plurality opinion). To be sure, securing and maintaining a majority in a legislative
body is an important step in advancing a political party’s interests. But widening a majority
provides little value if the additional legislators do not actually subscribe to the party’s policy
agenda. Dr. Osborn did not explore whether Illinois political party expenditures were consistent
with a pure expansionist strategy, and therefore did not test this premise of his opinion. Second,
and more importantly, because he failed to examine how the Illinois Democratic Party
contributed to candidates, Dr. Osborn could not compare the contributions of legislative caucus
committees to those of political parties to determine the respective degrees to which those
entities pursued an expansionist strategy. Dr. Osborn’s main argument is that because the
Democratic Majority financed candidates in primary elections, and because it financed general
election candidates who were not vulnerable, the legislative caucus committee was not behaving
as would a political party. But Dr. Osborn never examined whether the Illinois Democratic Party
also contributed to primary candidates and to “safe” general election candidates. If the party
made such contributions, that fact would undermine Dr. Osborn’s position regarding the
17
distinction between parties and legislative caucus committees. The fact that Dr. Osborn opted
not to make this obvious comparison suggests that, if he had, the results would be inconsistent
with his theory; at a minimum, it severely detracts from the persuasiveness of his opinions.
I.
75.
Osborn’s Testimony Regarding Donors to Legislative Caucus
Committees
Dr. Osborn next discussed the campaign finance reports of the Democratic
Majority and the Senate Victory Fund from the 2014 election cycle. 1/25/16 Tr. at 114:2-19.
76.
Dr. Osborn determined that both legislative caucus committees have “a very high
reliance on PAC contributions and corporate contributions.” Id. at 114:20-115:7; see also Pl.
Exh. 1 at 10 (Osborn’s expert report stating that donations to legislative caucus committees come
from “a concentrated group of special interests … by PACs associated with organized labor and
business trade associations”).
77.
In Dr. Osborn’s view, this means that legislative caucus committees have greater
potential for corruption because they “are access-seeking organizations, and they’re looking to
influence the public policy process, and so heavy reliance on those contributions kind of mirrors
the policy-making process along with the electoral process.” 1/25/16 Tr. at 115:8-25. He opined
that this is dangerous because “[t]hese are the very interests that are the most likely to have
issues before the Legislature,” Pl. Exh. 1 at 10, and that the increased opportunities for
corruption derive from the “cozy relationship” between “the donors, the interest groups, [and]
the legislative caucus committee,” 1/25/16 Tr. at 116:2-6.
78.
Dr. Osborn contrasted those donors with the donors who donate to political
79.
Based on his review of the academic literature, Dr. Osborn testified that political
parties.
parties tend to receive contributions from a broad cross section of donors. Pl. Exh. 1 at 4. He
18
claimed that donor-base composition provides another distinction between legislative caucus
committees and political parties. Dr. Osborn testified that receiving donations from a “broad
cross section of donors” mitigates the danger of corruption from political parties because the
contributions are not “from one select group of industries or one select group of interests.”
1/25/16 at 84:6-24; see also Pl. Exh. 1 at 4 (Osborn opining that political parties are less likely to
be an agent or principal of corruption because “subclasses of the political party donors are unable
to amass a concentration of the contributions to create undue influence over the party”).
80.
This point is unpersuasive. First, it is not apparent that having a “less diversified”
donor portfolio makes legislative caucus committees more likely to exert undue financial
influence on legislators, or why that would be so. It is incumbent on the expert to establish why
that would be the case, and Dr. Osborn failed to do so here. Second, Dr. Osborn once again
compared the actual donor profile of legislative caucus committees only to a theoretical donor
profile of political parties. The identity of donors to the Illinois Democratic Party is publically
available on the same website from which Plaintiffs obtained the information on the Senate
Victory Fund and the Democratic Majority. See
https://www.elections.il.gov/campaigndisclosure/contributionssearchbycommittees.aspx
(“Democratic Party of Illinois” in the “Committee Name” field). A cursory review of this data
reveals that many corporations and PACs contribute to the Illinois Democratic Party. Yet Dr.
Osborn chose not to examine who actually contributed to the state political parties, and instead
relied on a generalized, academic concept when concluding that legislative caucus committees
and political parties receive contributions from different types of donors. This again suggests
that, if Dr. Osborn had made the appropriate comparison, the results would have undermined his
theory.
19
J.
81.
Testimony of Andrew Nauman
Andrew Nauman is the Deputy Director of the Division of Campaign Disclosure
at the Illinois State Board of Elections. 1/26/16 Tr. at 193:22-194:1.
82.
The State Board of Elections reviews political committees’ financial disclosures
to ensure that the state’s contribution limits are followed. Id. at 194:4-6. The Board consists of
four Democrats and four Republicans. Id. at 194:19-21.
83.
Nauman testified that the Board has never made a negative audit finding against
any legislative caucus committee. Id. at 204:23-205:25. He could not say whether the audit
process analyzes the motives behind any contribution that any donor made. Id. at 214:24-215:4.
Conclusions of Law
“The free flow of political speech ‘is central to the meaning and purpose of the First
Amendment.’” Wis. Right to Life State PAC v. Barland, 664 F.3d 139, 152 (7th Cir. 2011)
(“WRTL”) (quoting Citizens United v. FEC, 558 U.S. 310, 329 (2010)). Given the integral role
political speech plays in a democratic society, most laws that burden political speech “are subject
to strict scrutiny, which requires the Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest.” Citizens United, 558 U.S.
at 340 (internal quotation marks omitted). But the Supreme Court has held that, because
campaign contribution limits do not burden political expression and political association rights to
the same degree as other speech restrictions, “this kind of campaign-finance regulation need only
satisfy a form of intermediate scrutiny.” WRTL, 664 F.3d at 152 (citing Buckley v. Valeo, 424
U.S. 1, 23-25 (1976)). As such, “contribution limits are generally permissible if the government
can establish that they are ‘closely drawn’ to serve a ‘sufficiently important interest.’” Ibid.
(quoting Buckley, 424 U.S. at 25); see also Ariz. Free Enter. Club’s Freedom Club PAC v.
20
Bennett, 564 U.S. 721, 735 (2011); Davis v. FEC, 554 U.S. 724, 737 (2008); Randall, 548 U.S.
at 247. Settled precedent holds that one such “sufficiently important interest” is the State’s
interest in preventing quid pro quo corruption or its appearance. See Citizens United, 558 U.S. at
357; Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 390-93, 397 (2000); WRTL, 664 F.3d at 152.
As noted, only one of Plaintiffs’ claims has survived dismissal—the claim that the Act
impermissibly treats legislative caucus committees like political party committees and more
favorably than PACs, individuals, and corporations. To place that claim in context, it is
instructive to review Plaintiffs’ arguments over the course of this suit. In seeking a preliminary
injunction at the outset of this suit, Plaintiffs argued that the Act was not “closely drawn” to the
State’s anti-corruption rationale because the law “exempt[ed] political parties, but not individuals
and PACs, from the limits on contributions to candidates.” 902 F. Supp. 2d at 1120. This court
recognized that “[s]peech restrictions that are valid when considered in isolation may nonetheless
be found unconstitutional if they impermissibly disfavor certain content, viewpoints, or
speakers,” and that “exemptions from a speech restriction can render it fatally underinclusive and
… cast doubt on the government’s justification therefor.” Id. at 1120-21. Nonetheless, the court
ruled that prevailing campaign finance precedents defeated Plaintiffs’ submission that the Act’s
favorable treatment of political parties rendered the law invalid. Id. at 1121-25 (holding that
“there are at most two schools of thought on the Supreme Court”—one that “the First
Amendment requires that political parties be treated more favorably than non-party
contributors,” and the other “that the First Amendment allows but does not require jurisdictions
with contribution limits to treat parties more favorably than non-party contributors”).
With the court having held at the preliminary injunction stage that the Constitution allows
Illinois to favor political parties, Plaintiffs amended their complaint to add a claim that the Act is
21
unconstitutional because it defines political party committees to include “legislative caucus
committees.” Doc. 65 at ¶¶ 31-37, 51-54, 66. As noted, a legislative caucus committee is “a
committee established for the purpose of electing candidates to the General Assembly” that may
be formed by each of the majority and minority leader of the state House and Senate or by a
committee of five state senators or ten state representatives of the same caucus. 10 ILCS 5/91.8(c). In a general election, legislative caucus committees (like political parties) can contribute
unlimited amounts to candidates. 10 ILCS 5/9-8.5(b). Plaintiffs submit that legislative caucus
committees more closely resemble PACs than political parties and that, regardless of how similar
they are to any other regulated campaign entity, legislative caucus committees have the potential
to engage in corruption. If Plaintiffs were right, the contribution limits imposed on Plaintiffs,
and particularly on Illinois Liberty PAC, could hardly be considered “closely drawn” to the
interest of preventing corruption, and the State would effectively be favoring certain political
speakers (legislative leaders) over others (PACs, individuals, and corporations) without any
adequate justification for doing so. Because the First Amendment does not tolerate such
preferential treatment, see First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 793 (1978), the
contribution limits on Plaintiffs would be invalid.
As a threshold matter, the parties dispute which side bears the burden of proof. Plaintiffs
submit that it is Defendants’ burden to show that the limits are closely drawn to a sufficiently
important government interest. 1/26/16 Tr. at 276:5-10. Defendants respond that they need only
offer a sufficiently important interest to justify the law’s contribution limits and that Plaintiffs
must establish that the law is underinclusive. Id. at 278:2-15. Plaintiffs are correct. See Nixon,
528 U.S. at 387-88 (“[U]nder Buckley’s standard of scrutiny, a contribution limit … could
survive if the Government demonstrated that contribution regulation was ‘closely drawn’ to
22
match a ‘sufficiently important interest.’”) (emphasis added); WRTL, 664 F.3d at 152
(“Campaign contribution limits are generally permissible if the government can establish that
they are ‘closely drawn’ to serve a ‘sufficiently important interest.’”) (emphasis added); Riddle v.
Hickenlooper, 742 F.3d 922, 928 (10th Cir. 2014) (“Even under [Buckley’s] form of intermediate
scrutiny … state officials … bear the burden of proof.”). Still, Defendants have satisfied their
burden of showing that contribution limits challenged by Plaintiffs are closely drawn to the
interest of preventing quid pro quo corruption (or the appearance thereof).
Plaintiffs raise three main arguments for why legislative caucus committees more closely
resemble PACs than political parties, all based on Dr. Osborn’s testimony. First, they assert that
legislative caucus committees contribute to election campaigns in a different manner than do
political parties. Dr. Osborn testified that political parties theoretically make expenditures to
further an expansion strategy while interest groups pursue an access-seeking strategy. Findings
of Fact (“FOF”) ¶¶ 63-64. After analyzing the campaign contributions of only two legislative
caucus committees, the Senate Victory Fund and the Democratic Majority, he determined that
both of them pursued an expansion strategy—just like political parties. FOF ¶¶ 67-69. But he
also found that the Democratic Majority exhibited some behavior inconsistent with an expansion
strategy. FOF ¶ 69. For the reasons discussed above, the court is not persuaded that those
expenditures are indicative of anything other than an expansion strategy. FOF ¶¶ 70-74. And
even if they were, Dr. Osborn never showed how that strategy makes legislative caucus
committees more like PACs. After all, what would it even mean for a legislative leader—to
whom others seek access—to pursue an access-seeking strategy?
Second, Plaintiffs argue that the types of donors who contribute to legislative caucus
committees are substantially different from those who donate to political parties. This
23
difference, according to Plaintiffs, creates an elevated risk that legislative caucus committees will
engage in quid pro quo corruption. Based on his review of academic literature, Dr. Osborn
posited that political parties receive contributions from a broad cross section of donors, and that
because of this they are less susceptible to corruption. FOF ¶ 79. His examination of actual
contributions to legislative caucus committees, by contrast, revealed that the overwhelming
majority of donations came from political action committees and corporations. FOF ¶ 76. But,
as discussed above, Osborn never explained why this matters. FOF ¶ 80. He testified that
receiving donations from “a concentrated group of special interests” is dangerous because
“[t]hese are the very interests that are the most likely to have issues before the Legislature.” FOF
¶ 77. But virtually any interest could come before a legislature. And in any event, as explained
above, Dr. Osborn does not show how accepting donations from PACs and corporations makes
legislative caucus committees more likely to be corrupt than political parties, which accept
donations from the same sources. FOF ¶ 79.
Third, Plaintiffs argue that the structure of legislative caucus committees is dangerous
because it directly connects a policymaking body with a source of significant campaign funding.
Osborn focused on two aspects of legislative caucus committees: (1) that legislative leaders, who
have significant policymaking authority, can singlehandedly create their own legislative caucus
committees; and (2) that candidates can receive contributions from only one legislative caucus
committee per election cycle, potentially making legislators financially dependent on them and
thus easier to corrupt. FOF ¶¶ 56-57, 60. He opined that this design flaw is unique to legislative
caucus committees because political parties are further removed from the policymaking process.
FOF ¶ 55. For the reasons set out above, the court disagrees that these features of legislative
24
caucus committees create enhanced opportunities for corruption or that it makes them materially
different than political parties. FOF ¶¶ 58-59, 61.
Contrary to Plaintiffs’ position, legislative caucus committees are most akin to political
parties. In McConnell v. FEC, 540 U.S. 93 (2003), overruled on other grounds by Citizens
United, 558 U.S. 310, the Supreme Court highlighted the differences between interest groups and
political parties: “Interest groups do not select slates of candidates for elections. Interest groups
do not determine who will serve on legislative committees, elect congressional leadership, or
organize legislative caucuses.” 540 U.S. at 188. Although the Court drew those distinctions in
discussing whether political parties could be treated less favorably than interest groups, the
takeaway remains the same: legislatures are “fully entitled to consider the real-world differences
between political parties and interest groups when crafting a system of campaign finance
regulation.” Ibid. Here, the record shows that neither private individuals nor PACs select slates
of candidates for elections, serve on legislative committees, elect legislative leadership, or
organize legislative caucuses. FOF ¶¶ 22-24, 31-32. The legislative leaders and groups of
legislators empowered to form legislative caucus committees, by contrast, do participate in
caucus, committee, and legislative activities. By their nature, then, legislative caucus
committees more closely resemble political parties than do PACs because they are organized
around and created by legislative leaders, who are chosen by their respective caucuses, or by
groups of legislators from the same caucus.
Like Illinois law, federal law treats congressional campaign committees, the federal
analog to legislative caucus committees, as political parties. See 52 U.S.C. § 30116(d)(4)(B)
(imposing on “all congressional campaign committees” the same expenditure limitations
imposed on “political committees established and maintained by a national political party”); 52
25
U.S.C. § 30125 (same for soft money restrictions); 52 U.S.C. § 30104(e) (same for reporting
requirements). The Supreme Court has recognized that congressional campaign committees
have structural ties to their respective parties. See FEC v. Democratic Senatorial Campaign
Comm., 454 U.S. 27, 40 n.20 (1981) (noting that “senatorial campaign committees are
identifiable as part of their respective party”). Plaintiffs submit that federal congressional
campaign committees are unlike Illinois legislative caucus committees because “no federal law
places any congressional campaign committee under the control of one person, let alone under
the control of the parties’ leaders within the two houses of Congress.” Doc. 178 at p. 60, ¶ 27.
Given this distinction, according to Plaintiffs, “there is no reason to expect Congressional
campaign committees to pursue the personal interests of any particular legislator as there is with
Illinois legislative caucus committees.” Ibid. This argument is unpersuasive. Whether a
committee is controlled by a single legislative leader or a group of several likeminded legislators,
it could still (under Plaintiffs’ theory) use its superior fundraising position to make quid pro quo
demands. The Supreme Court’s observation that federal campaign committees “are identifiable
as part of their respective party” applies with equal force to legislative caucus committees and
their respective state parties—and because the Supreme Court has cast no suspicion on the
constitutional validity of treating federal campaign committees like political parties, the same
holds for legislative caucus committees and state parties.
For these reasons, the court rejects the proposition that legislative caucus committees are
essentially PACs in disguise or that they resemble PACs more than political parties. To the
contrary, legislative caucus committees are quite similar to political parties, and to the extent the
two are different, those differences do not materially affect legislative caucus committees’
potential to engage in quid pro quo corruption. Accordingly, Defendants have shown that
26
treating legislative caucus committees as political parties, thereby exempting legislative caucus
committees from the restrictions on other political contributors, does not cast doubt on Illinois’s
justification for limiting contributions from PACs and other contributors.
This outcome finds support in recent precedent expounding on the nature of the
underinclusiveness inquiry. In Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), a
candidate for state judicial office challenged an ethics canon prohibiting her from personally
soliciting campaign contributions. Although the State had a compelling interest in “protecting
the integrity of the judiciary” and “maintaining the public’s confidence in an impartial judiciary,”
the challenger claimed the law was underinclusive because the State “fail[ed] to restrict other
speech equally damaging to judicial integrity and its appearance.” Id. at 1666, 1668. More
specifically, the challenger claimed the canon was not narrowly tailored because it still allowed
judges’ campaign committees to solicit money on the judges’ behalf and permitted judges to
send thank you letters to campaign donors. Id. at 1668. In assessing whether the law survived
strict scrutiny under the First Amendment—a more demanding standard than Buckley’s “closely
drawn” test—the Court explained:
It is always somewhat counterintuitive to argue that a law violates the First
Amendment by abridging too little speech. We have recognized, however,
that underinclusiveness can raise doubts about whether the government is in
fact pursuing the interest it invokes, rather than disfavoring a particular
speaker or viewpoint.
…
Underinclusiveness can also reveal that a law does not actually advance a
compelling interest.
…
Although a law’s underinclusivity raises a red flag, the First Amendment
imposes no freestanding “underinclusiveness limitation.” A State need not
address all aspects of a problem in one fell swoop; policymakers may focus on
their most pressing concerns. We have accordingly upheld laws—even under
27
strict scrutiny—that conceivably could have restricted even greater amounts
of speech in service of their stated interests.
Id. at 1668 (citation omitted) (internal quotation marks omitted). The Court held that Florida had
“reasonably concluded that solicitation by the candidate personally creates a categorically
different and more severe risk of undermining public confidence than does solicitation by a
campaign committee.” Id. at 1669. Accordingly “Florida’s choice to allow solicitation by
campaign committees does not undermine its decision to ban solicitation by judges.” Ibid.
The same result obtains here. Plaintiffs have challenged the contribution limits placed on
individuals and PACs. It is beyond dispute that contribution limits may be imposed on these
entities to further the government’s anti-corruption interest. Yet Plaintiffs argue that because
legislative caucus committees—which they believe create a serious risk of corruption—are less
strictly regulated, Illinois in fact is not concerned about corruption in politics, but instead is
trying to selectively silence individuals and PACs. As in Williams-Yulee, the fact that Illinois
chose not to place similar contribution limits on legislative caucus committees could raise a red
flag. But for all the reasons provided above, legislative caucus committees have very little in
common with PACs or individual contributors, and function largely as political parties do.
Therefore, there is no basis to conclude that the Act’s true purpose is to provide preferential
treatment to certain political speakers.
Again, Williams-Yulee explains that a “State need not address all aspects of a problem in
one fell swoop; policymakers may focus on their most pressing concerns,” adding that a law
could still be considered narrowly tailored even if it “conceivably could have restricted even
greater amounts of speech in service of [its] stated interests.” Id. at 1668. That is especially true
here, where the quality and degree of potential corruption arising from contributions by
individuals and PACs, on one hand, and by legislative caucus committees, on the other, are so
28
different. Illinois reasonably concluded that corruption (or the appearance thereof) by private
individuals and non-legislative entities poses a far more serious risk to the democratic process
than does a legislative leader contributing to another legislator or electoral candidate in that
leader’s own caucus. Accordingly, the Act’s contribution limits do not run afoul of the First
Amendment.
Plaintiffs also argue that the Act violates the Equal Protection Clause. Doc. 65 at ¶ 63.
But as the court previously held in this case, “whether a challenge to the disparate treatment of
speakers or speech is framed under the First Amendment or the Equal Protection Clause,” the
same standard applies. 902 F. Supp. 2d at 1125-26. As such, Plaintiffs’ equal protection
challenge fails for the same reasons as their First Amendment challenge.
Conclusion
For the foregoing reasons, the Illinois Disclosure and Regulation of Campaign
Contributions and Expenditures Act does not violate the Constitution in in subjecting PACS,
corporations, and individuals to contribution limits from which legislative caucus committees are
exempt. With all claims resolved, judgment will be entered in favor of Defendants and against
Plaintiffs.
September 7, 2016
United States District Judge
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