Government Can’t Play Campaign-Finance Favorites

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.