Illinois Liberty PAC v. Madigan, et.al.
Filing
44
MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 10/5/2012.Mailed notice.(jlj)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ILLINOIS LIBERTY PAC, a political action committee
registered with the Illinois State Board of Elections, and
EDGAR BACHRACH,
)
)
)
)
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, )
)
Defendants.
)
12 C 5811
Judge Feinerman
MEMORANDUM OPINION AND ORDER
Plaintiff Illinois Liberty PAC brought this official capacity suit under 42 U.S.C. § 1983
against the Attorney General of Illinois and the Chairman, Vice-Chairman, and members of the
Illinois State Board of Elections, alleging that certain contribution limits imposed by the Illinois
Election Code violate the First Amendment and the Fourteenth Amendment’s Equal Protection
Clause. Doc. 1. The provisions challenged by the original complaint limit the amount that
political action committees (“PACs”) may contribute to a candidate; those provisions do not limit
PAC contributions to independent expenditure committees or independent expenditures by PACs
themselves. Illinois Liberty moved for a preliminary injunction, Doc. 6, and the court set an
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expedited briefing schedule and a hearing date of August 27, 2012, Doc. 14. On August 24,
three days before the hearing date, Illinois Liberty and a second plaintiff, Edgar Bachrach, filed
an amended complaint, which adds a challenge to provisions of the Illinois Election Code
limiting the amount that individuals may contribute to candidates and PACs; like the provisions
challenged by the original complaint, these additional provisions do not limit an individual’s
contributions to independent expenditure committees or independent expenditures by individuals
themselves. Doc. 27. On the hearing date itself, Illinois Liberty filed a motion to withdraw its
preliminary injunction motion. Doc. 28. The court granted the motion to withdraw and, at
Plaintiffs’ request, set an expedited briefing schedule for a new preliminary injunction motion.
Doc. 31. Plaintiffs filed their motion three days later. Doc. 32. Briefing on the motion closed on
September 19, 2012. Doc. 42. The motion is denied.
Background
The provisions challenged here were enacted in 2009 as part of the Illinois Disclosure and
Regulation of Campaign Contributions and Expenditures Act, Ill. Pub. Act 96-832, as amended
in 2012, Ill. Pub. Act 97-766. The provisions recognize three classes of political contributors: (1)
individuals; (2) political committees; and (3) corporations, labor unions, or other associations.
10 ILCS 5/9-8.5(b). There are several different types of political committees, including
candidate political committees, political party committees, PACs, and independent expenditure
committees. 10 ILCS 5/9-1.8(a). A candidate political committee is the candidate himself or any
group that accepts contributions or makes expenditures on his behalf. 10 ILCS 5/9-1.8(b).
Because a candidate can have only one candidate political committee, 10 ILCS 5/9-2(b), the
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candidate and her political committee are practically indistinguishable and will be referred to
together as the “candidate.”
A political party committee is the state, county, or ward/township committee of a political
party. 10 ILCS 5/9-1.8(c). Any group whose candidate received over five percent of the total
vote cast in the State or a subdivision thereof in the previous general election is recognized as a
political party in the next election in the corresponding geographical area. 10 ILCS 5/7-2. A
party can have only one political party committee in any geographical area. 10 ILCS 5/9-2(c).
For example, there can be only one Republican party committee for Illinois, one for Cook
County, and one for each ward/township within Cook County. For ease of reference, the term
“political party” will refer to a political party and its affiliated committees.
A legislative caucus committee—defined as a “committee established for the purpose of
electing candidates to the General Assembly”—is a type of political party committee. 10 ILCS
5/9-1.8(c). Legislative caucus committees may be formed by the majority and minority leaders
of the House and Senate, or by a committee of five state senators or ten state representatives.
Ibid. An example of a legislative caucus committee is the Democratic Majority, a committee
whose purpose is to elect Democratic candidates to the Illinois House. Doc. 7-4 at 7. A
legislative candidate may not accept contributions from more than one legislative caucus
committee. 10 ILCS 5/9-8.5(b). If that prohibition were not in place, numerous legislative
caucus committees could be set up to accept outside contributions and to channel those
contributions to candidates, effectively evading the limitations on contributions to candidates,
which are outlined below.
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A PAC is a group of people or an organization (except candidates and political party
committees) that accepts contributions, makes expenditures, and/or makes electioneering
communications that relate to a political race and exceed $3000 in a twelve-month period. 10
ILCS 5/9-1.8(d). A given group or organization may form only one PAC. 10 ILCS 5/9-2(d).
Illinois Liberty is a PAC. Doc. 27 at ¶ 5; Doc. 34-2 at ¶ 4. Independent expenditure committees
are similar to PACs, except they can make only independent expenditures and not contributions.
10 ILCS 5/9-1.8(f). Illinois law does not prohibit a given group or organization from forming
multiple independent expenditure committees.
The Act limits the amounts that certain contributors may contribute to a candidate: an
individual may give $5000; a corporation, labor union, or other association may give $10,000;
and a PAC or other candidate may give $50,000. 10 ILCS 5/9-8.5(b). Political parties may
contribute unlimited amounts to a candidate during a general election. 10 ILCS 5/9-8.5(b).
During a primary election, political parties are subject to a $200,000 limit for contributions to a
candidate for statewide office; a $125,000 limit for state senate elections, some judicial elections,
and some county elections; a $75,000 limit for state representative elections, some judicial
elections, and some county elections; and a $50,000 limit for all other elections. Ibid. All
contribution limits are lifted for a race if a self-funding candidate, individual, or independent
expenditure committee spends over a designated threshold, which is $250,000 for statewide races
and $100,000 for other races. 10 ILCS 5/9-8.5(h) & (h-5). When the limits are lifted for a race,
all candidates in that race may accept unlimited contributions from any source. Ibid.
The Act imposes limits on contributions to political parties. During an election cycle, a
political party may accept only $10,000 from an individual, $50,000 from a PAC, and $20,000
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from a corporation, labor organization, or association. 10 ILCS 5/9-8.5(c). A political party may
accept only $50,000 from another political party committee or a candidate during the primary
election; that restriction is set to expire on July 1, 2013, when political party committees will be
able to accept unlimited contributions from candidates and other political party committees. 10
ILCS 5/9-8.5(c-5). Contributions to PACs are limited as well. During an election cycle, a PAC
may accept $10,000 from an individual, $50,000 from another PAC or a candidate, and $20,000
from a corporation, labor union, association, or political party. 10 ILCS 5/9-8.5(d).
The Act imposes no limits on contributions to independent expenditure committees. 10
ILCS 5/9-8.5(e-5). In Personal PAC v. McGuffage, __ F. Supp. 2d __, 2012 WL 850744 (N.D.
Ill. Mar. 13, 2012), the court invalidated the Act to the extent that it limited contributions to
PACs that make only independent expenditures. That decision was not appealed. Illinois Liberty
is not a PAC that makes only independent expenditures. Doc. 27 at ¶ 5 (“Plaintiff Illinois Liberty
PAC exercises its rights to free speech and association by donating funds … to the state
candidates it supports.”).
A political committee that receives a prohibited contribution is subject to a civil penalty
of up to 150% of the contribution, 10 ILCS 5/9-8.5(j), and a civil fine of up to $5000 or $10,000
depending on who committed the violation, 10 ILCS 5/9-23. It is a Class A misdemeanor for a
candidate or the treasurer of a political committee to accept a contribution exceeding the
applicable limit. 10 ILCS 5/9-25.2.
Discussion
Although Plaintiffs’ papers reference several of the Act’s provisions, they directly
challenge only the limits on the amounts that individuals and PACs can contribute to a candidate
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and the amounts individuals can contribute to a PAC. Plaintiffs claim that if the limits were not
in place, Illinois Liberty and Bachrach would contribute more to particular candidates than the
allowable limits ($50,000 and $5,000, respectively), and Bachrach would contribute more to
Illinois Liberty than the allowable limit ($10,000).
The law governing consideration of preliminary injunction motions is as follows:
To obtain a preliminary injunction, the moving party must show that its case
has “some likelihood of success on the merits” and that it has “no adequate
remedy at law and will suffer irreparable harm if a preliminary injunction is
denied.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). If the
moving party meets these threshold requirements, the district court “must
consider the irreparable harm that the nonmoving party will suffer if
preliminary relief is granted, balancing such harm against the irreparable
harm the moving party will suffer if relief is denied.” Ty, Inc. v. Jones
Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). The district court must also
consider the public interest in granting or denying an injunction. Id. In this
balancing of harms conducted by the district court, the court weighs these
factors against one another “in a sliding scale analysis.” Christian Legal
Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). “The sliding scale
approach is not mathematical in nature, rather ‘it is more properly
characterized as subjective and intuitive, one which permits district courts to
weigh the competing considerations and mold appropriate relief.’” Ty, Inc.,
237 F.3d at 895-96 (quoting Abbott Labs. v. Mead Johnson & Co., 971 F.2d
6, 12 (7th Cir. 1992)). Stated another way, the district court “sit[s] as would
a chancellor in equity” and weighs all the factors, “seeking at all times to
‘minimize the costs of being mistaken.’” Abbott Labs., 971 F.2d at 12
(quoting Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 593
(7th Cir. 1986)).
Stuller, Inc. v. Steak N Shake Enters., Inc., __ F.3d __, 2012 WL 3631632, at *2 (7th Cir. Aug.
24, 2012). “[I]n First Amendment cases, the likelihood of success on the merits will often be the
determinative factor.” ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (internal
quotation marks omitted). “This is because the ‘loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury,’ and the quantification of
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injury is difficult and damages are therefore not an adequate remedy.” Ibid. (quoting Elrod v.
Burns, 427 U.S. 347, 373 (1976) (plurality)) (some quotation marks omitted).
I.
Likelihood of Success on the Merits
As noted above, Plaintiffs submit that the challenged contribution limits violate the First
Amendment and the Equal Protection Clause.
A.
First Amendment
The First Amendment principles governing this case are settled. “Discussion of public
issues and debate on the qualifications of candidates are integral to the operation of our system of
government. As a result, the First Amendment has its fullest and most urgent application to
speech uttered during a campaign for political office.” Ariz. Free Enter. Club’s Freedom Club
PAC v. Bennett, 131 S. Ct. 2806, 2816-17 (2011) (internal quotation marks and citation omitted).
“Ever since Buckley [v. Valeo, 424 U.S. 1 (1976),] however, the Supreme Court has drawn a
distinction between restrictions on expenditures for political speech and restrictions on
contributions to candidates.” Wis. Right to Life State PAC v. Barland, 664 F.3d 139, 152 (7th
Cir. 2011) (“WRTL”); see also Ariz. Free Enter., 131 S. Ct. at 2817. Restrictions on
expenditures “represent substantial rather than merely theoretical restraints on the quantity and
diversity of political speech,” Buckley, 424 U.S. at 19, and thus are subject to strict scrutiny, see
Ariz. Free Enter., 131 S. Ct. at 2817; WRTL, 664 F.3d at 153. By contrast, “a limitation upon the
amount that any one person or group may contribute to a candidate or political committee entails
only a marginal restriction upon the contributor’s ability to engage in free communication,”
Buckley, 424 U.S. at 20, and thus is subject to a “relatively complaisant [standard of] review,”
FEC v. Beaumont, 539 U.S. 146, 161 (2003). The standard provides that contribution limits are
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“generally permissible if the government can establish that they are ‘closely drawn’ to serve a
‘sufficiently important interest.’” WRTL, 664 F.3d at 152 (quoting Buckley, 424 U.S. at 25); see
also Ariz. Free Enter., 131 S. Ct. at 2817; Davis v. FEC, 554 U.S. 724, 737 (2008). Applying
that more lenient level of scrutiny, the Supreme Court has upheld “government-imposed limits
on contributions to candidates, caps on coordinated party expenditures, and requirements that
political funding sources disclose their identities.” Ariz. Free Enter., 131 S. Ct. at 2817 (internal
citations omitted).
The Supreme Court has identified only one “sufficiently important interest” that can
justify contribution limits—the prevention of quid pro quo corruption or the appearance thereof.
See Citizens United v. FEC, 130 S. Ct. 876, 903-11 (2010); WRTL, 664 F.3d at 152; Green Party
of Conn. v. Garfield, 616 F.3d 189, 199 (2d Cir. 2010). The so-called “anti-circumvention”
principle provides that this interest may be advanced by prophylactic measures designed to halt
the evasion of valid contribution limits. See FEC v. Colo. Republican Fed. Campaign Comm.,
533 U.S. 431, 456 (2001) (“Colorado II”) (“all Members of the Court agree that circumvention is
a valid theory of corruption”); United States v. Danielczyk, 683 F.3d 611, 618 (4th Cir. 2012)
(observing that Citizens United did not abrogate the anti-circumvention rationale); Ognibene v.
Parkes, 671 F.3d 174, 195 n.21 (2d Cir. 2011) (same); Thalheimer v. City of San Diego, 645 F.3d
1109, 1125 (9th Cir. 2011) (same); Green Party of Conn., 616 F.3d at 199 (same). For instance,
the government may prevent an individual who already contributed the maximum amount to a
particular candidate from channeling additional funds to that candidate through entities like
PACs. See Beaumont, 539 U.S. at 155 (“recent cases have recognized that restricting
contributions by various organizations hedges against their use as conduits for circumvention of
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valid contribution limits”) (internal quotation marks and alterations omitted); Cal. Med. Ass’n v.
FEC, 453 U.S. 182, 203 (1981) (Blackmun, J., concurring) (“contributions to [PACs] may be
limited … as a means of preventing evasion of the limitations on contributions to a candidate”).
1.
The Challenged Limits Considered in Isolation
Plaintiffs take pains to make clear that they are not arguing that the contribution limits on
individuals and PACs, standing alone, are too low. Doc. 42 at 4-5. That said, and to place
Plaintiffs’ actual arguments in context, it is helpful to examine whether the challenged limits,
considered in isolation, are likely to survive First Amendment scrutiny.
The Act’s $5,000 limit on an individual’s contributions to a candidate and the $50,000
limit on a PAC’s contributions to a candidate are typical, higher than some and lower than others,
of the limits imposed by other States. See National Conference of State Legislators, State Limits
on Contributions to Candidates, 2011-12 election cycle (“State Contribution Limits Survey”)
(Sept. 30, 2011), available at www.ncsl.org/Portals/1/documents/legismgt/Limits_to_
Candidates_2011-2012.pdf (last visited Oct. 5, 2012). Those limits are routine campaign finance
regulations of the sort that the Supreme Court regularly upholds. See Beaumont, 539 U.S. at 163
(holding that a complete ban on contributions to federal candidates by corporations may,
consistent with the First Amendment, be applied to nonprofit advocacy corporations); Nixon v.
Shrink Mo. Gov’t PAC, 528 U.S. 377, 395-97 (2000) (upholding a $1,075 limit on individual and
PAC contributions to candidates for statewide office in Missouri); Buckley, 424 U.S. at 23-29
(upholding a $1,000 limit on individual and PAC contributions to candidates for federal office);
see also Thalheimer, 645 F.3d at 1124 (holding that Citizens United did not implicitly overrule
Beaumont). The same holds for the Act’s $10,000 limit on an individual’s contributions to a
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PAC. See Cal. Med. Ass’n, 453 U.S. at 195-99 (upholding a $5,000 limit on individual
contributions to federal multicandidate political committees, which are PACs that receive
contributions from fifty or more individuals and contribute to five or more candidates).
In Randall v. Sorrell, 548 U.S. 230 (2006), the Court struck down Vermont’s extremely
low limits on what individuals, PACs, and political parties could contribute to candidates—$400
for candidates for statewide office, $300 for state senate candidates, and $200 for state house
candidates. The contribution limits challenged here well exceed the limits invalidated in
Randall, and even exceed the limits upheld in Shrink, California Medical Association,
Beaumont, and Buckley. Based on the markers set down by the Supreme Court, it is highly likely
that the Act’s contribution limits, standing alone, would survive First Amendment scrutiny.
2.
Whether Exempting Political Parties from the Limits on
Contributions to Candidates Renders Them Invalid
Plaintiffs contend that the Act violates the First Amendment by exempting political
parties, but not individuals and PACs, from the limits on contributions to candidates. Plaintiffs’
submission is not foreclosed by the fact that the Act’s contribution limits on individuals and
PACs, standing alone, are likely valid. Speech restrictions that are valid when considered in
isolation may nonetheless be found unconstitutional if they impermissibly disfavor certain
content, viewpoints, or speakers. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383-86
(1992). “Premised on mistrust of governmental power, the First Amendment stands against
attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions
distinguishing among different speakers, allowing speech by some but not others. As
instruments to censor, these categories are interrelated: Speech restrictions based on the identity
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of the speaker are all too often simply a means to control content.” Citizens United, 130 S. Ct. at
898-99 (citations omitted); see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 659 (1994)
(“Regulations that discriminate among media, or among different speakers within a single
medium, often present serious First Amendment concerns.”). Moreover, exemptions from a
speech restriction can render it fatally underinclusive and can cast doubt on the government’s
justification therefor. See Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2740 (2011);
Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002); City of Ladue v. Gilleo, 512 U.S.
43, 51-53 (1994).
The question here is whether the First Amendment prohibits campaign finance laws that
favor political parties over individuals and PACs. To support their affirmative answer to the
question, Plaintiffs cite Colorado II, supra, which upheld a federal law limiting a political party’s
coordinated expenditures—deemed to be the functional equivalent of direct contributions to a
candidate, see 533 U.S. at 445-56—with its candidates for the United States Senate. The Court
held that the limits were justified by what the government contended were the risks of corruption
posed by unlimited party contributions to candidates. See id. at 445-65. From the premise that
the government’s concern about party-related corruption can provide a sufficient justification
under the First Amendment for limits on party contributions to candidates, Plaintiffs conclude
that the First Amendment requires that parties be subject to the same limits as individuals and
PACs.
Plaintiffs’ conclusion does not follow from its premise and cannot be reconciled with
prevailing campaign finance precedents. It must be remembered that in Colorado II, the limits
on a party’s coordinated expenditures in Senate campaigns—anywhere between $67,560 and
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$1,636,438, depending on state population, see id. at 439 n.3—dwarfed the limits on individual
and PAC contributions to Senate candidates, see id. at 442 n.7 (noting that the law imposed a
$1,000 limit on individual contributions and a $5,000 limit on PAC contributions to a federal
candidate during an election cycle). The fact that the Court upheld a campaign finance scheme
whose contribution limits on parties were orders of magnitude higher than its limits on
individuals and PACs undermines Plaintiffs’ submission that the First Amendment prohibits
such a scheme.
Any doubt would be dispelled by examining the views of the Justices who decided
Colorado II. The four dissenters were Chief Justice Rehnquist and Justices Scalia, Kennedy, and
Thomas. Adopting the assumption (with which they disagreed) that coordinated expenditures
equal direct contributions and that Buckley’s “closely drawn” test is the appropriate standard, the
dissenters expressed the view that the First Amendment prohibits any coordinated spending
limits on political parties. Id. at 474-82 (Thomas, J., dissenting). The dissenters justified their
view by pointing to “the unique relationship between a political party and its candidates,” and by
noting that “[t]he 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.” Id. at 476 (Thomas, J., dissenting)
(internal quotation marks omitted); see also 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 what could it mean for a party to ‘corrupt’ its candidate or to exercise ‘coercive’
influence over him?”). The five Justices in the Colorado II majority—Justices Stevens,
O’Connor, Souter, Ginsburg and Breyer—did not expressly say in their opinion that campaign
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finance schemes may treat parties more favorably than individuals and PACs, though the scheme
they upheld did exactly that. But two years later, those five Justices did make that allowance in
the course of rejecting an argument that a federal statute violated the Constitution by treating
political parties more favorably than “special interest groups such as the National Rifle
Association, American Civil Liberties Union, and Sierra Club.” McConnell v. FEC, 540 U.S. 93,
187 (2003), overruled in part on other grounds, Citizens United v. FEC, supra. The Justices
explained as follows:
As an initial matter, we note that BCRA [the Bipartisan Campaign
Reform Act of 2002] actually favors political parties in many ways. Most
obviously, party committees are entitled to receive individual contributions
that substantially exceed FECA’s [the Federal Election Campaign Act of
1971] limits on contributions to nonparty political committees; individuals
can give $25,000 to political party committees whereas they can give a
maximum of $5,000 to nonparty political committees. In addition, party
committees are entitled in effect to contribute to candidates by making
coordinated expenditures, and those expenditures may greatly exceed the
contribution limits that apply to other donors. See 2 U.S.C. § 441a(d)
(Supp. II).
More importantly, however, Congress is fully entitled to consider
the real-world differences between political parties and interest groups
when crafting a system of campaign finance regulation. See [FEC v.]
National Right to Work, 459 U.S. [197], 210 [(1982)]. 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. Political parties have influence
and power in the Legislature that vastly exceeds that of any interest group.
As a result, it is hardly surprising that party affiliation is the primary way by
which voters identify candidates, or that parties in turn have special access
to and relationships with federal officeholders. Congress’ efforts at
campaign finance regulation may account for these salient differences.
Id. at 188 (emphasis added). McConnell drew a dissent from the four Colorado II dissenters, but
the dissenters did not take issue with the McConnell majority’s recognition of the special place of
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political parties in our political system. And given that the Citizens United majority includes the
three Colorado II dissenters who remained on the Court as of 2010, it cannot be doubted that the
foregoing passage from McConnell remains good law to this day. See also Colo. Republican
Fed. Campaign Comm. v. FEC, 518 U.S. 604, 630 (1996) (“Colorado I”) (Kennedy, J.,
concurring in part and dissenting in part) (“We have a constitutional tradition of political parties
and their candidates engaging in joint First Amendment activity; we also have a practical identity
of interests between the two entities during an election.”).
Also instructive is Randall v. Sorrell, supra, which invalidated the extremely low
candidate contribution limits that Vermont imposed on individuals, PACs, and political parties
alike. In a plurality opinion joined by Chief Justice Roberts and in relevant part by Justice Alito,
Justice Breyer explained that the provisions were invalid under the First Amendment because,
among other reasons, they placed “identical limits” on party and individual contributions to
candidates. 548 U.S. at 259. This “special party-related harm[],” the plurality reasoned, “would
reduce the voice of political parties in Vermont to a whisper.” Ibid. (internal quotation marks
omitted). The plurality contrasted the limits invalidated in Randall with the coordinated
spending limits on parties upheld in Colorado II, which the plurality emphasized were “much
higher than the federal limits on contributions from individuals to candidates, thereby reflecting
an effort by Congress to balance (1) the need to allow individuals to participate in the political
process by contributing to political parties that help elect candidates with (2) the need to prevent
the use of political parties to circumvent contribution limits that apply to individuals.” Id. at 258
(internal quotation marks omitted).
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As far as the decided cases reveal, there are at most two schools of thought on the
Supreme Court. The predominant school, reflecting the view of at least six sitting Justices (Chief
Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, and Alito), is that in jurisdictions
that impose contribution limits, the First Amendment requires that political parties be treated
more favorably than non-party contributors; and we know from Colorado II that Justices Scalia,
Kennedy, and Thomas would invalidate any limits on party contributions. The minority view, if
in fact any Justice holds the view at all, is that the First Amendment allows but does not require
jurisdictions with contribution limits to treat parties more favorably than non-party contributors.
No Justice has espoused the view pressed here by Plaintiffs, that the First Amendment prohibits
jurisdictions with contribution limits from treating parties more favorably than not-parties. It
therefore is highly unlikely that the Act violates the First Amendment by exempting political
parties from the contribution limits imposed on individuals and PACs.
Plaintiffs suggest that the First Amendment analysis should take account of what they
believe to be the special dangers of political party corruption in Illinois, as demonstrated by the
State’s history and its contemporary political culture and practice. But the First Amendment’s
campaign finance principles are uniform across the Nation. Just over three months ago, in
American Traditional Partnership, Inc. v. Bullock, 132 S. Ct. 2490 (2012), the Supreme Court
summarily rejected an argument that Montana’s special history and circumstances warranted an
exception from generally applicable First Amendment standards. There is no reason to believe
that the Supreme Court would hold that a practice generally required or allowed in jurisdictions
with contribution limits (treating parties more favorably than non-parties) is prohibited in Illinois.
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Plaintiffs cite passages from the legislative debates to support their view that the Act’s
contribution limits are unconstitutional. What individual legislators said in those debates are not
pertinent to the Act’s constitutionality. See United States v. O’Brien, 391 U.S. 367, 383 (1968)
(“What motivates one legislator to make a speech about a statute is not necessarily what
motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew
guesswork.”); Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Tp., 980 F.2d 437, 443 (7th
Cir. 1992) (upholding a state Pledge of Allegiance statute against a First Amendment challenge
even though a senator opposing passage argued that the bill was invalid under West Virginia
State Board of Education v. Barnette, 319 U.S. 624 (1943), and even though one senator
supporting the bill’s passage said, “it amazes me that these people get up and read that kind of
garbage that Jackson [Justice Robert Jackson, author of the majority opinion in Barnette] had
there, his advise [sic] from the Supreme Court, I rate just about as highly as I do the advise [sic]
from Congress,” and another supporter said, “Maybe we ought to abolish the Supreme Court and
have a dictatorship like in Russia because in Russia at least they say a pledge of allegiance to
their own flag”) (internal quotation marks omitted, alterations in original).
3.
Whether the Waiver Provision Renders Invalid the
Limits on Contributions to Individual Candidates
Plaintiffs next contend that any conceivably legitimate interest that could justify the limits
on individual and PAC contributions to candidates is fatally undermined by the Act’s
underinclusiveness, as evidenced by the waiver provisions that lift contribution limits in races
where a self-funding candidate, an individual, or an independent expenditure committee spends
over a particular threshold. 10 ILCS 5/9-8.5(h) & (h-5). Relatedly, Plaintiffs contend that it
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violates the First Amendment to condition the volume of their speech, as expressed by their
contributions to candidates, on the speech activities of others.
Plaintiffs’ submissions are foreclosed by Davis v. FEC, supra. At issue in Davis was the
so-called “Millionaire’s Amendment,” which tripled the contribution limit for a federal candidate
and lifted the coordinated party expenditure limit if her opponent’s self-funded expenditures plus
half the contributions received in the year preceding the election exceeded a certain threshold.
554 U.S. at 729 n.5. The Supreme Court held that the statute’s asymmetric waiver of
contribution limits “impose[d] an unprecedented penalty on any candidate who robustly exercises
[the] First Amendment right [to spend personal funds on an election]” and thus violated the First
Amendment. Id. at 738-40. In so holding, however, the Court made clear that the statute would
have survived had it raised the contribution limits for all candidates when a self-funding
candidate exceeded the spending threshold:
If [the Millionaire’s Amendment] simply raised the contribution
limits for all candidates, Davis’ argument would plainly fail. This Court has
previously sustained the facial constitutionality of limits on discrete and
aggregate individual contributions and on coordinated party expenditures.
At the same time, the Court has recognized that such limits implicate First
Amendment interests and that they cannot stand unless they are closely
drawn to serve a sufficiently important interest, such as preventing
corruption and the appearance of corruption. When contribution limits are
challenged as too restrictive, we have extended a measure of deference to
the judgment of the legislative body that enacted the law. But we have held
that limits that are too low cannot stand.
There is, however, no constitutional basis for attacking contribution
limits on the ground that they are too high. Congress has no constitutional
obligation to limit contributions at all; and if Congress concludes that
allowing contributions of a certain amount does not create an undue risk of
corruption or the appearance of corruption, a candidate who wishes to
restrict an opponent's fundraising cannot argue that the Constitution
demands that contributions be regulated more strictly. Consequently, if [the
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Millionaire’s Amendment’s] elevated contribution limits applied across the
board, Davis would not have any basis for challenging those limits.
Id. at 737 (internal quotations marks and citations omitted).
The Act’s waiver provisions are materially identical to the hypothetical version of the
Millionaire’s Amendment that the Supreme Court said it would uphold—a version that raises the
contribution limits for all candidates when a certain spending threshold is exceeded. If the
hypothetical statute rendered the otherwise applicable contribution limits fatally underinclusive
or impermissibly conditioned one candidate’s speech on the choices made by others, Davis
would not have approved it. It follows that the Act’s waiver provisions do not render
constitutionally infirm the limits that the Act imposes on individual and PAC contributions to
candidates.
4.
Whether the Limits on Individual Contributions to
PACs are Rendered Invalid by the Higher Limit
Imposed on Corporations, Labor Unions and Other
Organizations
Finally, Plaintiffs contend that the Act violates the First Amendment rights of individuals
by permitting corporations, labor unions, and other organizations to contribute twice as much as
individuals to PACs ($10,000 vs. $5,000). The contention has no merit. In Buckley, the
Supreme Court approved the imposition of lower contribution limits on individuals than on
entities. See 424 U.S. at 35-36 (upholding provisions that imposed a $1,000 contribution limit
on individuals and a $5,000 limit on PACs). Plaintiffs provide no basis to conclude that this
component of Buckley is no longer good law. See Green Party of Conn., 616 F.3d at 199
(holding that Citizens United did not undermine the Supreme Court’s precedents regarding the
validity of contribution limits under the First Amendment).
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B.
Equal Protection Clause
Plaintiffs claim that the challenged provisions violate the Equal Protection Clause
because they impermissibly discriminate (1) against individuals and PACs by exempting political
parties from the limits on contributions to a candidate and (2) against individuals by allowing
corporations, labor unions, and other associations to contribute twice as much to a PAC.
Plaintiffs’ equal protection challenge rests on the grounds they unsuccessfully advanced under
the First Amendment. The question here is whether those grounds fare any better when
presented in the guise of an equal protection challenge.
Plaintiffs answer in the affirmative, arguing that equal protection challenges to disparate
contribution limits are governed by strict scrutiny, not by the more relaxed “closely drawn”
scrutiny applied under the First Amendment. The argument is without merit. The First
Amendment encompasses a strong equality principle, one that provides the standard for
evaluating the constitutional validity of government action that treats different classes of speakers
and speech differently. Some Justices have urged that the “closely drawn” test be jettisoned and
that contribution limits instead be subjected to strict scrutiny. See, e.g., Randall, 548 U.S. at
266-67 (Thomas, J., concurring); Colorado II, 533 U.S. at 465-66 (Thomas, J., dissenting);
Shrink, 528 U.S. at 410 (Thomas, J., dissenting). If that goal could be accomplished simply by
switching analysis from the First Amendment to the Equal Protection Clause, surely those
Justices would have proposed that course. They do not appear to have done so, and even if they
had, the proposal would not be viable in light of the Supreme Court’s adherence to the “closely
drawn” standard in measuring the validity of contribution limits.
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Plaintiffs have not cited any case where a litigant who lost a First Amendment challenge
to contribution limits proceeded to prevail by re-framing the challenge under the Equal
Protection Clause. This is not surprising in light of precedent holding that it makes no difference
whether a challenge to the disparate treatment of speakers or speech is framed under the First
Amendment or the Equal Protection Clause. See Ark. Writers’ Project v. Ragland, 481 U.S. 221,
227 n.3 (1987) (“Appellant’s First Amendment claims [challenging a state sales tax that taxed
different publications differently] are obviously intertwined with interests arising under the Equal
Protection Clause. However, since Arkansas’ sales tax system directly implicates freedom of the
press, we analyze it primarily in First Amendment terms.”) (citations omitted); Renton v.
Playtime Theaters, Inc., 475 U.S. 41, 55 n.4 (1986) (“Respondents argue, as an ‘alternative basis’
for affirming the decision of the Court of Appeals, that the Renton ordinance violates their rights
under the Equal Protection Clause of the Fourteenth Amendment. As should be apparent from
our preceding discussion, respondents can fare no better under the Equal Protection Clause than
under the First Amendment itself.”); Minneapolis Star & Tribune Co. v. Minn. Comm’r of
Revenue, 460 U.S. 575, 585 n.7 (1983) (“Justice Rehnquist’s dissent analyzes this case solely as
a problem of equal protection, applying the familiar tiers of scrutiny. We, however, view the
problem as one arising directly under the First Amendment, for, as our discussion shows, the
Framers perceived singling out the press for taxation as a means of abridging the freedom of the
press. The appropriate method of analysis thus is to balance the burden implicit in singling out
the press against the interest asserted by the State. Under a long line of precedent, the regulation
can survive only if the governmental interest outweighs the burden and cannot be achieved by
means that do not infringe First Amendment rights as significantly.”) (citations omitted);
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Ognibene, 671 F.3d at 193 n.19 (summarily rejecting an equal protection challenge to a
contribution limit because the court had already held that the limit did not effect impermissible
viewpoint discrimination under the First Amendment); Kucharek v. Hanaway, 902 F.2d 513, 517
(7th Cir. 1990) (“The state is permitted to suppress obscenity but it is not permitted to distort the
marketplace of erotic discourse by suppressing only that obscenity which conveys a disfavored
message. It makes no difference whether this conclusion is premised on the equal protection
clause as informed by policies drawn from the free-speech and free-press clauses or on the
speech and press clauses themselves.”) (internal citations omitted); see also Wagner v. FEC, 854
F. Supp. 2d. 83, 95 (D.D.C. 2012) (applying the “closely drawn” standard to resolve an equal
protection challenge to disparate contribution limits avoids “the anomalous result that a statutory
provision could survive closely drawn scrutiny under the First Amendment, but nevertheless be
found to violate equal-protection guarantees because of its impingement upon the very same
rights”).
Because the applicable standards are the same, Plaintiffs’ equal protection challenge to
the Act’s contribution limits fails for the same reasons as their First Amendment challenge.
II.
Other Preliminary Injunction Factors
Plaintiffs’ negligible likelihood of success is reason enough to deny their preliminary
injunction motion. Consideration of the balance of harms and the public interest, which are two
other components of the preliminary injunction calculus, confirm that preliminary relief should
be denied. “[A]ny time a State is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 132 S.
Ct. __, 2012 WL 3064878, at *2 (July 30, 2012) (Roberts, C.J., in chambers) (quoting New
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Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, C.J., in
chambers)); see also Aid for Women v. Foulston, 441 F.3d 1101, 1119 (10th Cir. 2006) (same);
Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (same). If a preliminary
injunction were granted, there would be no contribution limits for individuals and PACs in the
weeks leading up to the 2012 Illinois state elections. This would create a manifest possibility of
actual or apparent corruption, an irreparable harm to Illinois, its citizens, and the public interest.
That harm far outweighs any irreparable harm that the challenged provisions might impose upon
individuals and PACs, who may contribute up to $5,000 or $50,000, respectively, to any given
candidate, and who may make their voices heard by devoting unlimited sums to their own
independent expenditures or by contributing unlimited sums to independent expenditure
committees or to PACs that make only independent expenditures. See WRTL, 664 F.3d at 15354; Personal PAC, 2012 WL 850744, at *6.
Conclusion
For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction is denied.
October 5, 2012
United States District Judge
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