Liberty Justice Center Files Lawsuit to Challenge Constitutionality of Illinois Campaign Finance Law

7/31/2019 Liberty Justice Center Files Lawsuit to Challenge Constitutionality of Illinois Campaign Finance Law

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The Liberty Justice Center is a nonprofit, nonpartisan public interest litigation center that was started by the Illinois PolicyInstitute. The Liberty Justice Center fights to protect economic and personal liberty, private property rights, free speech andother fundamental rights in Illinois and nationwide. First and foremost, the Liberty Justice Center seeks to ensure that the

rights to earn a living and to start a business, which are essential to a free and prosperous society, are available not just to apolitically privileged few, but to all. The Liberty Justice Center pursues its goals through strategic, precedent-setting litigationto revitalize constitutional restraints on government power and protections for individual rights. To learn more about theLiberty Justice Center, visit: libertyjusticecenter.org.

PRESS RELEASEMEDIA CONTACT: Diana [email protected] or (312) 607-4977

Liberty Justice Center files lawsuit to challengeconstitutionality of Illinois campaign finance law

Current campaign finance law violates citizensrights to free speech and equal protection

CHICAGO (July 25, 2012) The Liberty Justice Center, a public interest litigation center started bythe Illinois Policy Institute, has filed a federal lawsuit challenging the constitutionality of Illinoiscampaign finance law. The lawsuit shows that Illinois campaign finance law violates the FirstAmendment and equal protection clause of the U.S. Constitution.

Under the guise of reform, Illinois campaign finance law was passed in 2009 and amended earlierthis month. The law places limits on political contributions during a general, statewide election except when political parties or political leaders make these contributions.

This wasnt campaign finance reform; this legislation restricted the free speech rights of citizens ofIllinois including our client, Illinois Liberty PAC while the political parties and party leadersexempted themselves from the law and also created ways to circumvent this law, said Diane Cohen,general counsel of the Liberty Justice Center. We have filed a motion asking the court for apreliminary or permanent injunction to enjoin the enforcement of certain portions of this Act, so that sothat all Illinoisans can freely exercise their rights to free speech.

As the law currently is written, there are no restrictions on what political parties can give tocandidates. Meanwhile, average citizens are restricted and can only donate what political leadersdecide.

The practical result of this law is that political parties, party bosses and party leaders can enjoyunlimited donations and give unlimited amounts to candidates of their choosing. Meanwhile,candidates who do not have the backing of party bosses face steep limits which makes it difficult, ifnot impossible, to take on incumbents and entrenched interests.

Party bosses should have to live under the same laws they impose on the rest of us, said Dan Proft,chairman of Illinois Liberty PAC, the plaintiff in the case. This law is a scheme to furtherconsolidate power in the hands of party bosses by limiting the participation and free speech rights of13 million Illinoisans. Everyone who wants to participate in the political process in Illinois should betreated equally.

The lawsuit was filed in federal district court in Chicago. A copy of the complaint is available online at:http://tinyurl.com/ljc-campaignfinance

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Money flow by dollar amount to Republican candidate and party committees 2009-10

Citizens to

Elect Tom Cross

$3,714,501

Citizens for

Christine Radogno

$1,942,438

Sam McCann for

State Senate

$984,091

63.7%

of total funds from

the Minority Leader

and party committees

$980,000

Republican State

Senate Campaign

Committee

$3,717,915

$1,130,000

$23,875

$184,984

$210,000

$221,173 $968,670 IllinoisRepublican Party

$5,061,258

$76,468

$825,000$195,000

House

Republican

Organization

$4,818,200

$428,352

Citizens for Unes

$796,667

36.3%

Other

64.8%

of total funds from

the Minority Leader

and party committees

35.2%

Other


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Money flow by dollar amount to Democratic candidate and party committees 2009-2010

Democratic Partyof Illinois

$10,326,940

Friends of

Michael J. Madigan

$4,867,022

Citizens

for Cullerton

$2,136,691

Senate

Democratic

Victory Fund

$8,027,313

$1,400,000

Directcontributions

to othercandidate

committees

$1,356,916

Directcontributions

to othercandidate

committees

DemocraticMajority

$125,000.00

$2,350,000

Senator Demuzio

Committee$1,853,938

$971,306

Citizens for

Mike Smith$1,112,029

$234,321

$546,557

$1,475,000

$125,000

Kilbride for

Supreme Court Judge$2,695,982

54.7%

of total funds from

party committees

45.3%

Other

49.2%

of total funds from

party committees

50.8%

Other

65%

of total funds from

party committees

35%

Other


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1

IN THE 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, )

)

Plaintiff, )

)

v. )

)

LISA M. MADIGAN, Attorney General of the State )

of Illinois; ) Judge Gary Feinerman

WILLIAM McGUFFAGE, Chairman ) Magistrate Judge Susan E. Cox

of the Illinois State Board of Elections; )

JESSE R. SMART, Vice-Chairman of the Illinois ) No. 12 CV 05811State Board of Elections; )

HAROLD D. BYERS, Member of the Illinois )

State Board of Elections; )

BETTY J. COFFRIN, Member of the Illinois )


ERNEST L. GOWEN, Member of the Illinois State )

Board of Elections, )

JUDITH C. RICE, Member of the Illinois )


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. )

MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION

FOR PRELIMINARY AND/OR EXPEDITED PERMANENT INJUNCTION

I. Introduction

Plaintiff Illinois Liberty PAC (Illinois Liberty PAC) is a not-for-profit pro-liberty

political action committee (PAC) that supports candidates for public office who embrace

public policy rooted in the principles of liberty and free enterprise. (Decl. of Matthew Besler,

5, attached as Exh. 1.) Illinois Liberty PAC brings this Motion for Preliminary Injunction and/or

Case: 1:12-cv-05811 Document #: 7 Filed: 07/24/12 Page 1 of 15 PageID #:19


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Permanent Injunction to enjoin the enforcement of certain portions of the Disclosure and

Regulation of Campaign Contribution and Expenditures Act (the Act), 10 ILCS 5/9-8.5(a)-(d),

because they violate Illinois Liberty PACs and other nonparty political speakers rights to free

speech and equal protection under law pursuant to the First and Fourteenth Amendments of the

United States Constitution.

The Act establishes a series of contribution limits on nonparty political speakers,

including Illinois Liberty PAC, while exempting political parties from these same limits. This

disparate treatment, along with the Acts overall scheme that includes exemptions and instances

where limits are entirely eliminated, evince that its contribution limit scheme does not serve the

only interest the Supreme Court has recognized for justifying such limits, preventing quid pro

quo1

corruption or the appearance of corruption. See Wis. Right to Life PAC v. Barland, 664

F.3d 139, 153 (7th Cir. 2011) (WRTL). For these reasons, the Acts contribution limits on all

political speakers and committees should be enjoined and struck down as unconstitutional. In the

alternative, the contribution limits on Illinois Liberty PAC should be enjoined and struck down.

II. Statement of Facts

In January 2009, Illinois enacted its first-ever campaign contribution limits for statewide

general and primary elections, which took effect January 1, 2011. 10 ILCS 5/9-8.5.

Specifically, the Act limits contributions that individuals,political action committees (PACs)2

and other nonparty political speakers may make to candidates during a general election$5,000,

$50,000, and $10,000 respectivelywhile expressly exempting political party contributions to

1The hallmark of corruption is the financial quid pro quo: dollars for political favors. Federal

Election Commn v.National Conservative Political Action Comm., 470 U.S. 480, 497 (1985).2 PACs are defined as a group of persons that accepts contributions, makes expenditures orelectioneering communications during any 12-month period in an aggregate amount exceeding$3,000 on behalf of or opposition to a candidate(s) for public office. 10 ILCS 5/9-1.8(d).



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candidates and other political parties. Id. Both the bill and its subsequent July 2012

amendments thereto were passed on party-line votes, with Democrats, including the House

Speaker and Senate Leader, supporting the bill, and most Republicans, including the House and

Senate Minority Leaders, opposing it. (See Exh. 2.)

The only limits the Act places on political party contributions to candidates apply solely

during primary elections. However, in statewide elections these limits are forty times the amount

that individuals may contribute$200,000 versus $5,000and four times the amount PACs can

make$200,000 versus $50,000.3 Currently there are limits on what a party can receive in a

primary election$50,000 from a candidate and $50,000 from another partybut the Act

eliminates these limits entirely effective July 1, 2013. 10 ILCS 5/9-8.5(c).4 While there are

limits on what individuals, PACs and other nonparties can contribute to political parties, parties

may receive unlimited contributions from candidates and other political parties. 5/9-8.5 (b),

(c).

The Act also contains a provision that eliminates all contribution limits in a race if a self-

financed candidate spends more than $250,000 for a statewide race or more than $100,000 for

any other elective office. 10 ILCS 5/9-8.5(h). In July 2012, an amendment to the 2009 Act was

passed that eliminates all contribution limits in a race if an independent expenditure committee

spends more than $250,000 (for a statewide race) or more than $100,000 (for any other elective

office). 5/9-8.5(h-5). The Act does not, however, eliminate contribution limits based on what

apolitical party spends in any race, including when a political party spends more than $250,000

3Other disparate party-versus-nonparty contribution limits apply to primary races including

Senate, House, First District judicial candidates, and other municipal and county office holders.See generally 10 ILCS 5/9-8.5(b).4See also 10 ILCS 5/9-8.5(c), a legislative caucus political committee may not acceptcontributions from another political party established by a legislative caucus.



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in a statewide race or more than $100,000 in any other race. In fact, political party contribution

spending in Illinois races has far surpassed these limits. (See Exhs. 3-5, party to candidate

contributions and Exh. 7, foundational Decl. of Robert T. Isham.)

Political Parties as Defined under the Act

Political parties are referred to as political party committees under the Act and include

the state and county central committees of a political party, a legislative caucus committee, and a

committee formed by a ward or township committeeman of a political party. 10 ILCS 5/9-1.8(c).

A legislative caucus committee is a committee established for the purpose of electing

candidates to the General Assembly by the President of the Senate, Minority Leader of the

Senate, Speaker of the House of Representatives, Minority Leader of the House, or a committee

established by 5 or more members of the same caucus of the Senate or by 10 or more members

of the same caucus of the House. Id. All of these party committees are empowered to give

unlimited contributions to candidates (with the limited exception of during primary elections as

noted above). Id.

The Act expressly prohibits individuals and other groups of persons (e.g., committees,

associations, corporations), from forming more than one political action committee. 10 ILCS

5/9-2(d). The Act does not prohibit a public official or candidate for public office from serving

as the officer of both a candidate committee and another committee, such as a party or legislative

committee, nor does it prohibit an individual from serving as an officer of multiple party

committees. Accordingly, while the Act prohibits officers of Illinois Liberty PAC from forming

another PAC, the Act does not, for example, prohibit Speaker Madigan from serving as the

Treasurer of his own candidate committee, Friends of Michael J. Madigan, while also serving as

the chairman of two party committees, the Democratic Party of Illinois and the Democratic



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majoritywhich, in fact, he does. (See Exhs. 3,7.) Further, the Acts statutory scheme

expressly ensures that the Speaker can make unlimited contributions from his candidate

committee to the party committees he chairs, 10/9-8.5(c), and then make unlimited contributions

from his political parties to candidateswhich in fact he does.5Id. (See Exhs. 3, 7.)

For example, Friends of Michael J. Madigan gave the Democratic Party of Illinois

$2,350,000 in the 2009-2010 election cycle. The Democratic Party then made contributions to

candidate committees ranging from $234,321 to the Senator Demuzio candidate committee, to

$1,475,000 to Kilbride for Supreme Court Judge (which represented 54% of the Judges total

contributions received during this cycle). (See Exhs. 3,7.) Contributions from the Democratic

Party of Illinois and the Senate Democratic Victory Fund constituted 65% of the total

contributions made to Senator Demuzios candidate committee. (See Exhs. 3,7.)

Further, of the $796,667 in total contributions that Citizens for Unes received in the

2009-2010 election cycle, 63.7% of these contributions came from a combination of Minority

Leader Cross candidate committee, the House Republican Organization, and the Illinois

Republican Party. (See Exhs. 5, 7.) In the case of the candidate committee Sam McCann for

State Senate, that committee received $23,875 from the Citizens for Christine Radogno candidate

committee. However, Senator Radognos candidate committee also contributed more than

$1,130,000 to the Republican State Senate Campaign Committee, of which Senator Radogno is

chairwoman, and the Republican State Senate Campaign Committee gave $428,352 to Sam

McCanns state senate candidate committee. (See Exhs. 6-7.)

5The Senate President has a like arrangement, where he is both the chairman of his candidate

committee and the chairman of the Senate Democratic Victory Fund party committee. (See Exhs.5.)



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This history shows that the state knew both before the 2009 Act was passed and the 2012

amendments that political parties and the elected leaders who were contributing well beyond any

of the caps the Act imposes on other speakers, including Illinois Liberty PAC. This history also

shows that the candidate committees of party leaders are able to circumvent the Acts limits on

candidate contributions to other candidate committees, 10 ILCS 9-8.5(b), by using the party

committees they control as a conduit for contributions to other candidate committees.

But for the Act, Illinois Liberty PAC would make contributions that exceed the Acts

contribution limits. (Exh. 1, 11-16, Besler Decl.) Further, but for the contribution limits,

Illinois Liberty PAC would have the freedom to direct its in-kind and monetary contributions in

a manner that best advances its principles and strategic purposes. (Id. at 14.) Moreover, it

would not be forced, as it now is, to make smaller contributions to candidates than it wishes or

decline to contribute at all if Illinois Liberty PAC determines that a smaller contribution (at or

below the Acts limits) would not make an impact in a race. (Id. at 15.) Illinois Liberty PAC

is ready, willing and able to make contributions in excess of the Acts limits. (Id. at 12.) In

addition, but for the Act, Illinois Liberty PAC would be ready and willing to accept donations in

excess of what the Act allows. (Id. at 13.) At present, Illinois Liberty PAC has at least one

donor who has given Illinois Liberty PAC the maximum aggregate contribution of $10,000 for

the current election cycle, who would donate more but for the Act. (Exh. 10, 1-7, Bachrach

Decl.)

III. Summary of the Argument

The Act was enacted in 2009 under the guise of campaign finance reform, but in reality

operates to increase political party power in the state. Far from targeting Illinois long history

of political corruption, and those who wish for political favors in exchange for their financial



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support of candidates or officials (Defs. Opp. to Plfs. Mot. Prelim. Inj., at 6, Personal PAC v.

McGuffage, 12 CV 1043 (Feb. 24, 2012))6

(Exh. 8), the Acts party exemptions exacerbate the

threat of corruption and apparent corruption that the contribution limits on individuals and PACs

are purportedly aimed at reducing. SeeFederal Election Commn v. Colorado Republican

Federal Campaign Comm., 533 U.S. 431, 440-45 (2001) (Colorado II). In fact, the evidence

shows that the same political leaders who voted for the Act and its 2012 amendments, including

Speaker Madigan and Senate Leader Cullerton, are the very political leaders who benefit from

the Acts exemptions. (See roll call votes on the 2009 Act and 2012 amendments, Exh. 2.) In

legislating themselves above the law, the political leaders literally sanctioned their own control

over the flow of campaign spending throughout the state in 2009, then further solidified it in

20012. As Representative Suzanne Bassi remarked in the 2009 floor debate on the Act:

Without those caps, the new reform is not only business as usual but makematters worse. The four Legislative Leaders controlled at least $25 millionin each of the last three election cycles. Other limits on contributions tocandidates are meaningless when Party Leaders can continue to giveunlimited amounts of cash to their chosen candidate. Ill. H.R., 96th GenAssemb.-81

stLegis. Day, at 130-31 (Oct. 29, 2009) (Exh. 9).

Accordingly, the Illinois campaign finance scheme, with its series of loopholes, party

exemptions and selective contribution-limit-lifting triggers, disparately treats Plaintiff Illinois

Liberty PAC and other nonparty political speakers, fails to serve an anti-corruption purpose, and

therefore should be enjoined and stricken as unconstitutional.

IV. Standard of Review

In order to prevail on a motion for preliminary injunction, Plaintiff must demonstrate: 1)

some likelihood of success on the merits; 2) no adequate remedy at law exists; and 3) irreparable

harm if the injunction is not granted. Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir.

6SeePersonal PAC v. McGuffage, 2012 WL 850744 (N.D. Ill. Mar. 13, 2012).



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2001). If these conditions are met, the Court must then balance the hardships the moving party

will suffer in the absence of relief against those the nonmoving party will suffer if the injunction

is granted. Id. Finally, the Court considers the interests of nonparties in deciding whether to

grant injunctive relief. Id. The Court weighs all these factors sitting as would a chancellor in

equity, using a sliding scale approach: the more likely it is the plaintiff will succeed on the

merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is

the plaintiff will succeed, the more the balance need weigh towards its side. Abbott Labs v.

Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992).

V. Argument

A. The Act violates Illinois Liberty PACs right to Equal Protection

The Fourteenth Amendment denies states the power to legislate that different treatment

be accorded to persons placed by a statute into different classes on the basis of criteria wholly

unrelated to the objective of that statute.Reed v. Reed, 404 U.S. 71, 75-76 (1971). A

classification that implicates a fundamental right, including the right to free speech, must be

narrowly tailored to serve a compelling state interest. See Plyler v. Doe, 457 U.S. 202, 217-18(1982) (classifications that impinge upon exercise of a fundamental right subject to strict

scrutiny);Regan v. Taxation With Representation of Wash., 461 U.S. 540, 547 (1983) (freedom

of speech a fundamental right for equal protection analysis).

Thus, in order to sustain the Acts disparate treatment of Plaintiff and political parties, the

state must show that doing so serves a compelling state interest. The Supreme Court has

recognized only one state interest sufficiently compelling to justify restrictions on campaign

contributions: preventing quid pro quo corruption or the appearance ofquid pro quo corruption.



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See WRTL, 664 F.3d at 153. Thus, the state must show that any scheme that restricts campaign

contributions serves this purpose.

Here, the state cannot show that the Act is narrowly tailored to combat corruption

because it declines to place limits onand thereby enhancesthe potentially corrupting

activities of political parties while restricting all other nonparty political speakers. As the

Supreme Court recognized in Colorado II, political party contributions to candidates have the

same potential to corrupt as nonparty contributions. 533 U.S. at 452. In that case, the National

Republican Party argued that it should not be subject to federal limits on coordinated party

expenditures as PACs and other nonparty political speakers are. The Party argued that because

apartys most important speech is aimed at electing candidates and is itself expressed through

those candidates, any limit on party support for a candidate imposes a unique First Amendment

burden.Id. at 445. But the Court rejected the Partys argument because it found that parties,

like PACs, can act as agents for spending on behalf of those who seek to produce obligated

office holders.Id. at 452. The Court concluded that [t]his party role . . . provides good reason

to view limits on coordinated spending by parties through the same lens applied to spending by

donors, like PACs, which can use parties as conduits for contributions meant to place candidates

under obligation. Id.; see alsoRussell v. Burris, 146 F.3d 563, 572 (8th Cir. 1998) (Disparate

limits, assessed based on whether a PAC accepted small versus large individual donations,

violated equal protection because they ignored the possibility that the small-donor PAC . . .

will seek to control a given candidate. [I]f any contribution is likely to give rise to a reasonable

perception of . . . corruption . . . it would be from an entity permitted to contribute two-and-a-half

times the amount that others are allowed to contribute.).



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As the Supreme Court explained in Colorado II, there is nothing inherent in political

parties that warrants treating their speech more favorably than that of PACs or other nonparties.

Moreover, nothing about the political party power structure in Illinois in particular provides any

basis for treating parties more favorably than other political speakers by exempting them from

nearly all ofthe Acts contribution limits. See Colorado II, 533 U.S. at 454-55.

In addition, even if parties were deemed differently situated from PACs and other

nonpartiesthat is, if the parties speech were not considered to be potentially corrupting the

Illinois scheme would still violate equal protection. Under the Acts 2012 amendments, all

contribution caps in a race are lifted when independent expenditures in the race exceed certain

amounts. The caps are notlifted, however, whenparty expenditures exceed these (or any)

amounts. If independent expenditures are not corrupting (which, as a matter of law, they are not,

seeCitizens Unitedv. Federal Election Commn, 130 S.Ct. 876, 909 (2010)), and if one assumes

that party expenditures also are not corrupting, then the state has no justification for lifting caps

in response to independent expenditures but not in response to party expenditures. Thus, even if

one assumes that party expenditures are not corrupting, and thus no limits are necessary, the Act

is not narrowly tailored to prevent corruption.

In fact, the legislative history of the 2012 Amendments shows that the General Assembly

enacted the independent expenditure amendment in the wake of the Supreme Courts decision in

Citizens Unitedand the Seventh Circuits decision in Personal PAC(supra),which prohibit the

state from imposing contribution limits onindependent expenditures such asfrom Super PACs.

Il. H.R., 97th Gen. Assemb.-SB 3722, 2nd & 3rd, at 7:10-24. (May 30, 2012) (Exh. 9).

Representative Currie explained: it would be an outrage not to help the other candidates not



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benefited by the super PAC [by] not . . . giving them the opportunity to level the playing field.

Id.

But if the state is eliminating contribution limits in response to independent expenditures

in order to "level the playing field," then the state should eliminate contribution limits in

response to party expenditures too. As Leader Currie observed:

[w]e already provide an end to caps when somebody is running against you isspending $100,000 of his or her own money to defeat you. We give you theopportunity to avoid the contribution cap. This new provision [regardingindependent expenditures] is totally analogous to the circumstance where a self-funder is spending huge sums of money. (Id. at 7:18-23)

What the state does not give

7

candidates is this same freedom from contribution limits

when faced with the flood of party money into a race. And this not only favors political parties

in violation of equal protection, it fails to serve any anticorruption interest, and therefore the

contribution limit scheme violates Illinois Liberty PACs and other nonparties First Amendment

rights to free speech as well.

B. The Act violates Illinois Liberty PACs First Amendment right to free speech

Ever since Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court has drawn a

distinction between restrictions on expenditures for political speech and restrictions on

contributionsto candidates. Although [s]pending for political ends and contributing to political

candidates both fall within the First Amendments protection of speech and political

association,Colorado II, 533 U.S. at 440, the Court has generally applied a more lenient

standard of review in cases involving First Amendment challenges to limits on contributions.

The scrutiny that is appropriate for a contribution limit considers whether the restriction is

7 The state does not bestow or gift individual liberty to its citizens. A free people [claim] theirrights as derived from the laws of nature, and not as the gift of their chief magistrate. ThomasJefferson, A Summary View of the Rights of British America, July 1774 Papers 1:12135.



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closely drawn to match what [the Supreme Court has] recognized as the sufficiently

important government interest in combating political corruption. Id. at 456.

While Plaintiff submits thatBuckley v. Valeo, 424 U.S. 1, should be overruled because

[p]olitical speech is the primary object of First Amendment protection,Nixon v. Shrink

Missouri Govt PAC, 528 U.S. 377, 410-11 (2000) (Thomas, J., dissenting), and deserves the

highest of constitutional protections, this Court need not ignoreBuckley in order to find the entire

Illinois scheme unconstitutional.

The Acts loopholes and exemptions undercut any purported anticorruption interest

[A] law cannot be regarded as protecting an interest of the highest order, and thus as

justifying a restriction upon truthful speech, when it leaves appreciable damage to that

supposedly vital interest unprohibited that is, when it is underinclusive. Florida Star v.

B.J.F., 491 U.S. 524, 541-42 (1989) (Scalia, J. concurring) (internal marks and citation omitted).

Here, the Acts preferential treatment of parties through exemptions and loopholes its 2012

amendments that eliminate direct contribution limits depending on the amount of independent

expenditures in a race, and its elimination of limits relating to self-funded candidates all evince

that the Act is so woefully underinclusive as to render the belief[that the Act or its limits serve

an anticorruption interest] a challenge to the credulous. SeeRepublican Party of Minnesota v.

White, 536 U.S. 765, 780 (2002). The Supreme Court has repeatedly recognized that a

regulatory scheme is not narrowly tailored if it is underinclusive. See, e.g., Rubin v. Coors

Brewing Co., 514 U.S. 476, 489 (1995) (exemptions and inconsistencies in labeling ban

[brought its purpose] into question and ensure[d] that [it would] fail to achieve that end); City

of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425 (1993) (ordinance banning certain

sidewalk newsracks unconstitutional because, among other reasons, the city had asserted an



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interest in esthetics, but respondent publishers newsracks [were] no greater an eyesore than the

newsracks permitted to remain).

Here, there is similar fatal underinclusiveness: The Acts elimination of direct

contribution limits in response to independent expenditures in a race can serve no anticorruption

interest precisely because the Supreme Court held as a matter of law that independent

expenditures do not corrupt or create the appearance of corruption. WRTL, 664 F.3d at 154

(citations omitted). Because the 2012 amendment treats contribution limits as expendable, it

stands as a tacit admission either that contribution limits are obsolete in the wake ofCitizens

Unitedand thus serve no anticorruption interest or that the limits never served an anticorruption

interest in the first place. See 10 ILCS 5/9-8.5(c-5), (h-5). If the state were truly seeking to

prevent corruption or the appearance thereof with contribution limits, it would not have

exempted political parties from these limits, nor would it have eliminated these limits in response

to Citizens United. See Citizens United, 130 S.Ct. at 911. (federal statute underinclusive because

if Congress had been seeking to protect dissenting shareholders, it would have banned corporate

speech in only certain media within 30 or 60 days before an election).

Simply put, Illinois cannot at once directly advance its presumed stated interest in

preventing corruption or the appearance thereof through limits, while on the other hand creating

an irrational regulatory scheme that favors political parties at the expense of all other political

speakers while also eliminating limits altogether in selected races in response to speech that is

noncorrupting speech. See Rubin, 514 U.S. at 488 (The failure to prohibit the disclosure of

alcohol content in advertising [but not labels on alcohol containers], makes no rational sense if

the Government's true aim is to suppress strength wars.) Such a scheme belies any government

interest in preventing corruption or the appearance thereof.



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VI. Illinois Liberty PAC Will Suffer Irreparable Harm If an Injunction Is Not

Issued

As set forth above, Illinois Liberty PAC has shown a likelihood of success on the merits.

Without a preliminary injunction, Plaintiff will suffer irreparable harm because any post-

election remedy would not compensate . . . for the loss of the freedom of speech. Personal

PAC v. McGuffage, 2012 WL 850744 *4 (N.D. Ill. Mar. 13, 2012) (quotingBrownsburg Area

Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th Cir. 1998)). Indeed, [t]he loss of

First Amendment freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury. Joelner v. Village of Washington Park,Illinois,378 F.3d 613, 620 (7th Cir.

2004) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)).

Illinois Liberty PAC is seeking to make donations to candidates in amounts greater than

the Acts limits allow. (Exh. 1, 11-16, Besler Decl.) Campaign season for the November

2012 general election is underway and it is critical that the Acts unconstitutional provisions be

enjoined so that Illinois Liberty PAC can be free to exercise its right to support through

contributions the candidates of its choice in a manner that most effectively advances its mission.

See Citizens United, 130 S.Ct. at 895 (noting the importance of speech in the weeks

immediately before an election and that a speakers ability to engage in political speech that

could have a chance of persuading voters is stifled if the speaker must first commence a

protracted lawsuit).

An Injunction Will Not Harm Defendants and Will Further the Public Interest.

While Illinois Liberty PAC will suffer irreparable harm from the loss of its First

Amendment freedoms in the absence of an injunction, the government cannot suffer harm from

being prevented from enforcing an unconstitutional statute. Joelner, 378 F.3d at 619.



31/31

Moreover, it is always in the public interest to protect First Amendment liberties.Id. (internal

marks and citations omitted).

The Court Should Waive The Bond Requirement Under F.R.C.P. 65(c).

It is within the Courts discretion to waive Rule 65(c)s security requirement where it

finds such a waiver to be appropriate in the circumstances. See Scherr v. Volpe, 466 F.2d 1027,

1035 (7th Cir. 1972); Wayne Chemical, Inc. v. Columbus Agency Service Corp. 567 F.2d 692,

701 (7th Cir. 1977). In non-commercial cases, courts often waive the bond requirement where

the likelihood of harm to the non-moving party is slight and the bond requirements would

impose a significant burden on the moving party. See, e.g.,Temple Univ. v. White, 941 F.2d 201,

219 (3d Cir. 1991). Waiver of the bond requirement is particularly appropriate in cases

involving constitutional rights. SeeSmith v. Bd. Of Election Commrs, 591 F. Supp. 70, 71 (N.D.

Ill. 1984).

VII. CONCLUSION

Illinois Liberty PAC is currently and will continue to be irreparably harmed if the Act is

not enjoined. As set forth above, Illinois Liberty PAC respectfully requests that this Court grant

its motion for preliminary and/or permanent injunction.

DATED: JULY 23, 2012

Respectfully submitted,

By: s/Diane CohenDiane S. Cohen (6199493)Peter G. White (6294072)Jacob Huebert (6305339)Attorneys for Plaintiff Illinois Liberty PAC

LIBERTY JUSTICE CENTER190 S. LaSalle St., Ste. 1630Chicago, Illinois(312) 263-7668


Documents

Liberty Justice Center Files Lawsuit to Challenge Constitutionality of Illinois Campaign Finance Law