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Campaign Finance and Free Speech Basics Up in Smoke in Illinois

Steve Klein December 02, 2015
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Following Citizens United v. Federal Election Commission, corporations and unions may sponsor political advertising that advocates the election or defeat of candidates with unlimited amounts of money, just like individual citizens. However, federal law and laws of some states still entirely prohibit corporations and unions from contributing money to candidates, and the Supreme Court has declined to review cases upholding these bans. In some states, corporations are generally allowed to contribute to candidates with certain exceptions such as government contractors, and courts find these bans narrowly tailored to prevent corruption or its appearance and compliant with the First Amendment.

But what happens when a state singles out an industry and prohibits such corporations from making contributions…just because?

That is the case behind a lawsuit I (with my organization, the Pillar of Law Institute) recently filed as co-counsel in Illinois on behalf of two Libertarian candidates seeking state office, Ball v. Madigan. The Libertarian Party unequivocally supports the legalization of recreational pharmaceuticals in its platform, but corporations participating in the nascent medical marijuana industry in Illinois cannot contribute to candidates and candidates cannot accept their contributions. Although medical marijuana cultivation and dispensary businesses are tightly regulated under Illinois law, other corporations operating under state license and regulation—including liquor, tobacco and pharmaceutical companies—may contribute up to $10,800 per candidate.

As we argue in our complaint, “there is no conceivable government interest to support a ban against one class of speakers speaking and associating.” However, we do not underestimate the ability of the Illinois Attorney General’s Office to offer one. The case law is sparse on this specific issue outside of government contracting, and the legislative history behind the statute offered no attempt to justify the ban. Shortly after we filed suit, NPR Illinois revealed in an interview with state representative Lou Lang (who sponsored the medical marijuana pilot bill) that “the contribution ban...was among a number of provisions meant to appease ‘conservative’ and ‘hesitant’ colleagues.” This is illuminating, but political expediency is not a compelling or important governmental interest that justifies censorship.

In an extensive piece in the New York Times this past weekend Nick Confessore detailed the rise of Illinois Governor Bruce Rauner, with the help of wealthy donors and ample self-funding. Professor Rick Hasen quipped that this indicates an “emerging plutocracy” in Illinois. Rhetoric behind calls for campaign finance regulation will remain as bombastic, in no small part because such rhetoric is so effective. But when rhetoric meets reality and campaign finance platitudes become law, the results are no less concerning than the problems reform sets out to solve. If Illinois can indeed implement wildly uneven political contribution caps based on nothing more than polls or politicians’ whims, how does this benefit democracy? If the First and Fourteenth Amendments do not provide a bulwark against this discrimination (after all, we are told, “money is not speech”), what does? What are we to make of corporate bans that single out industries that are not established or powerful, but are the exact opposite?

Ball v. Madigan is a case that is about as cut-and-dry as First Amendment challenges get. But the principle beneath the case, free speech, is far from universally accepted or respected. Too often, campaign finance laws serve little more than to shut up speakers who do not threaten to bring corruption to the political process, but merely disruption to the status quo. Rebuking and preventing such efforts should not be the exclusive province of First Amendment attorneys and courts, but facets of any serious campaign finance reform effort.

Questions? Reactions? Email blog@fedsoc.org with your response to continue the conversation. Select comments may be published on the blog.

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