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
Background
The provisions challenged here were enacted in 2009 as part of the Illinois Disclosure and Regulation of Campaign Contributions and Expenditures Act, 111. Pub. Act 96-832, as amended in 2012, 111. 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 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(e). 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 рarty 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). Legislativе 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
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 twelvemonth 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 sоme 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 from a corporation, labor organization, or association. 10 ILCS 5/9-8.5(c). A political party may accept only $50,000 from another рolitical 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(e-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, 858 F.Supp.2d 963 (N.D.Ill.2012), the court invalidated the Act to the extent that it limited contributions to PACs that make only independent expenditurеs. 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
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 and the amounts individuals can contribute to a PAC. Plaintiffs claim that if the limits were not in place, Illinois Liberty and Bachraeh would contribute more to particular candidates than the allowable limits ($50,000 and $5,000, respectively), and Bachraeh 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 а 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.,
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 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,
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/l/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,
In Randall v. Sorrell,
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.,
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
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 $1,636,438, depending on state population, see id. at 439 n. 3,
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,
As an initial matter, we note that BCRA [the Bipartisan Campaign Reform Act of 2002] аctually 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], 210,103 S.Ct. 552 [74 L.Ed.2d 364 (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 regulatiоn may account for these salient differences.
Id. at 188,
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 demonstrаted 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 Tradition Partnership, Inc. v. Bullock, — U.S.-,
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,
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 committеe spends over a particular threshold. 10 ILCS 5/9— 8.5(h) & (h-5). Relatedly, Plaintiffs contend that it 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.
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 whowishes to restrict an opponent’s fund-raising cannot argue that the Constitution demands that contributions be regulated more strictly. Consequently, if [the Millionaire’s Amendment’s] elevated contribution limits applied across the board, Davis would not have any basis for challenging those limits.
Id. at 737,
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 fоllows 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
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,
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,
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
Conclusion
For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction is denied.