by Jacob Huebert
January 10, 2019
In politics, Illinois has long been infamous
for corruption, patronage, and elections that seem
rigged to keep longtime political bosses and their friends in power.
One way Illinois rigs the political game, and
lives down to its bad reputation, is through its campaign finance rules.
In 2009, after former Governor Rod
Blagojevich was impeached and removed from office for trying to sell official
favors, many called for reforms to make sure that sort of thing wouldn’t happen
again. But the “reform” the state soon enacted didn’t eliminate opportunities
for corruption; it increased them.
The scheme the state enacted limits the
amounts that every person and group in Illinois can give to candidates for
state office. Or rather, it limits almost
every person and group. The state’s political parties can still give
candidates as much as they want. And in a general election, the state’s four
legislative leaders—most notably Michael Madigan, the country’s
longest-serving House Speaker (who also heads the state’s Democratic Party)—can
likewise give candidates unlimited amounts. And in primary elections, the
leaders can give much more than anyone else (except parties).
The obvious purpose and effect of this setup
is to protect the state’s established party leaders from competition and
preserve the political status quo. And by making legislators dependent on their
leaders for support, the law puts the leaders in a unique position to make quid
pro quo demands in exchange for campaign funds. In other words, it enables
legislative leaders to engage in exactly the kind of corruption that
contribution limits supposedly exist to prevent.
There’s more: When the state’s contribution
limits would limit an incumbent’s ability to fight off a challenger, they
suddenly disappear.
In general, campaign contribution limits tend
to benefit incumbents, who enjoy certain advantages that don’t cost them
anything, such as name recognition, press coverage of their official
activities, and the ability to communicate with constituents through
taxpayer-funded “newsletters” and the like.
But campaign contribution limits can harm an
incumbent who’s faced with a wealthy challenger who can spend unlimited amounts
of his or her own money. Contribution limits can also work to an incumbent’s
disadvantage if a challenger is supported by an independent group whose
spending can’t be limited under the First Amendment.
As it happens, that’s when Illinois’s limits
go away. In a given race, if a candidate’s self-funding or independent
expenditures exceed either $100,000 or $250,000 (depending on the office, and
subject to adjustment for inflation), then every candidate in the race can
receive unlimited contributions. So much for any concern about contributions
causing corruption.
Another bizarre detail: The state allows
corporations, unions, and other associations to make double the contributions
that individual donors can make. For example, an individual can give a
candidate as much as $5,000, but a corporation can give $10,000 (subject to
adjustment for inflation).
Of course, that makes no sense: How could a
corporate contribution of $5,001 be acceptable when an individual contribution
in that amount supposedly poses an intolerable threat of corruption? Does
Illinois really think individuals are that much more likely to seek favors from
officeholders than corporations or unions? If so, it’s the only state that
does: No other state limits individual contributions more than those of
corporations or unions.
The only apparent explanation for this—the
state has never offered any other—is that politicians would prefer to receive
more special-interest money rather than less.
Fortunately, the Liberty Justice Center sued to challenge the law for violating the First Amendment on behalf of some Illinois donors and a state legislator who didn’t want to depend on his party’s leaders for support.
They should have won easily: If the First
Amendment prohibits any kind of campaign contribution law, it should be this kind that imposes lower limits on
some donors than on others and serves to tilt the political playing field to
benefit very lawmakers who enacted it. The Supreme Court has said that courts
must give campaign contribution limits careful scrutiny precisely because
governments might use them to meddle in the political process. And, as Chief Justice John Roberts
put it in a 2014 opinion, under the First
Amendment and our system of government, “those who govern should be the last people to help decide who should govern.”
Unfortunately, although the Supreme Court has
condemned laws that favor some participants in politics over others in general
terms, it hasn’t said specifically how courts should analyze discriminatory
contribution limits like these. As a result, lower courts have tended to err on
the side of restraint and have often let governments get away with limits that
play favorites.
That’s what happened in the Illinois case. In
2018, the U.S. Court of Appeals for the Seventh Circuit upheld the law. The court concluded
that, as long as the contribution limit on any given group of donors,
considered alone, would tend to prevent corruption, there was no constitutional
problem. According to the court, the differences in the limits for different
donors don’t matter unless the plaintiffs could somehow prove that the
legislators who passed them acted with improper intent.
Now, the plaintiffs are asking the U.S.
Supreme Court to take their
case, and the Goldwater Institute has filed a
friend of the court brief supporting them.
The Goldwater Institute is also asking the
Supreme Court to take up this issue in another case, 1A Auto v. Sullivan, in which
the Institute represents two Massachusetts small businesses that are
challenging that state’s law that bans businesses, but not unions and
nonprofits, from making political contributions.
The Court should hear one or both of these cases and make clear that
governments cannot use contribution limits to tilt the political playing field
in anyone’s favor.
Jacob Huebert is a Senior Attorney at the
Goldwater Institute.
