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A Welcome Rebuke to Campaign Contribution Discrimination in Illinois

Stephen R. Klein March 28, 2017
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In late 2015, Claire Ball and Scott Schluter, two Libertarian candidates for state offices in Illinois, brought suit against Illinois Attorney General Lisa Madigan and the Illinois Board of Elections to challenge a provision of the state’s election law that prohibited medical marijuana grow operations and dispensaries from contributing to state candidates. (I served as co-counsel in the case at the Pillar of Law Institute, along with the Liberty Justice Center in Chicago.)

As members of a political party that “favor[s] the repeal of all laws creating ‘crimes’ without victims, such as the use of drugs for medicinal or recreational purposes[,]” Ball and Schluter were concerned that Illinois law allowed liquor, gambling and other corporations to contribute up to $10,800 per candidate, but prohibited members of a key emerging industry from supporting their respective races. On its face, this was not merely an unfair, but unconstitutional disparity.

Last Friday, in a 22-page opinion for summary judgment, Judge John Z. Lee of the United States District Court for the Northern District of Illinois methodically subjected the law to First Amendment rigor, and found it came up short, declaring it unconstitutional and prohibiting enforcement.

Although the case was, I boasted, “as cut-and-dry as First Amendment challenges get,” victory was far from guaranteed. Campaign contribution limitations are generally subjected to exacting scrutiny, shy of the strict scrutiny that is very difficult for the government to overcome. Under this review, the government must prove the law supports a sufficiently important governmental interest and that it is closely drawn to avoid unnecessary censorship. (In Judge Neil Gorsuch’s confirmation hearings for the United States Supreme Court last week, he took a great deal of flak for questioning the use of this level of scrutiny for campaign contributions in one of his Tenth Circuit concurrences.) Thus, due to the risk of political corruption, all corporations and unions may be prohibited from making any contributions whatsoever, as is the case under federal law.

The law may even discriminate among industries when the government can prove that one poses particular, heightened risks of corruption, as some states have for government contractors, lobbyists and gaming companies. In the Ball case, though, there was no such record. Even when marijuana was wholly prohibited under state law, there was no history of particular political corruption at the hands of grow operations and dealers in Illinois. In the words of plaintiffs’ lead counsel Benjamin Barr, “[t]here has been no ReeferGate.” Indeed, shortly after the case was filed, the sponsor of the medical marijuana pilot bill, which included the contribution prohibition, conceded that the provision was included largely to win votes from reluctant legislators.

Still, medical marijuana, though legalized and regulated under Illinois law, remains illegal under federal law. Even in states where it has been decriminalized for recreational use some regulated grow operations and dispensaries have been accused of having ties to organized crime.  Moreover, as the state specifically argued, the Illinois medical marijuana industry competes for a limited number of licenses under the pilot program, and due to its nascence the state could not predict how corruption might come into play. With continued controversy surrounding campaign finance—mostly made up of rhetoric that is starved of reality—all too often judges defer to the state rather than the First Amendment, and the overarching debate surrounding cannabis is hard even for judges to put aside.

Indeed, though there was no record of legislative findings to support the contribution ban, the Illinois Attorney General built something like one, citing to news reports and building an anemic record to show “the media and the public have perceived a risk of corruption relating to the medical cannabis pilot program.” Judge Lee accepted this as an adequate establishment of an important governmental interest.

Where the state failed was in the tailoring analysis. It could not meaningfully distinguish this risk of corruption from other industries that are licensed and regulated by the state, nor, for that matter, justify an outright ban on contributions from medical marijuana while allowing other corporations to contribute up to $10,800 per candidate. The law’s “scope is so conspicuously and unusually narrow as to call into serious doubt whether [the prohibition] advances Defendants’ asserted government interest.”

Perhaps the most interesting portion of Judge Lee’s opinion is back at the scrutiny analysis. Following campaign finance precedents, Judge Lee settled on less-than-strict scrutiny, but not before noting that the prohibition might very well be a content-based restriction that would demand strict scrutiny:

By singling out medical cannabis organizations, [the prohibition] appears to reflect precisely such a content or viewpoint preference. Although Buckley and its progeny permit the government to regulate campaign contributions to some extent, surely the First Amendment does not give the government free rein to selectively impose contribution restrictions in a manner that discriminates based on content or viewpoint.

Should the state appeal the case, they will once again have to confront this point.  

As Ball v. Madigan progressed, the 2016 election came and went, and unfortunately neither Ball or Schluter was able to solicit or receive funds from medical marijuana companies. However, in the meantime Illinois also expanded the sunset date of its pilot program from 2018 to 2020.  Should either Ball or Schluter run for state office before then, they (along with any other state candidate) will have one less silly prohibition to stand in the way of an effective campaign.

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