Petition for Writ of Certiorari — Illinois Liberty PAC, et al., Petitioners v. Kwame Raoul, Attorney General of Illinois, et al.

No. 18-____

IN THE

Supreme Court of the United States

————

ILLINOIS LIBERTY PAC, Political Action Committee

registered with the Illinois State Board of Elections,

EDGAR BACHRACH, and KYLE MCCARTER,

Petitioners,

v.

LISA MADIGAN, Attorney General

of the State of Illinois, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

JEFFREY M. SCHWAB

Counsel of Record

BRIAN KELSEY

REILLY STEPHENS

LIBERTY JUSTICE CENTER

190 LaSalle St., Ste. 1500

Chicago, IL 60603

(312) 263-7668

jschwab@libertyjusticecenter.org

Counsel for Petitioners

December 12, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

i

QUESTIONS PRESENTED

1. Should political contribution limits that favor

one type of speaker over another receive strict

scrutiny?

2. Should the holding in Buckley v. Valeo, 424 U.S. 1

(1976) applying a “closely drawn” test to all

political contribution limits be overruled in favor of

applying strict scrutiny?

ii

RULE 29.6 STATEMENT

Petitioner Illinois Liberty PAC is a political action

committee registered with the Illinois State Board of

Elections.

Petitioner Edgar Bachrach is a resident of Illinois

and a donor to political candidates and committees.

Petitioner Kyle McCarter is a resident of Illinois and

an Illinois state Senator.

Respondents Attorney General Lisa M. Madigan

and Members of the Illinois State Board of Elections

William McGuffage, Jesse R. Smart, Harold D. Byers,

and Betty J. Coffrin are representatives of the State of

Illinois, sued in their official capacities.

Because Petitioners are not a corporation, a

corporate disclosure statement is not required under

Supreme Court Rule 29.6.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

i

RULE 29.6 STATEMENT ...................................

ii

TABLE OF AUTHORITIES ................................

vi

OPINIONS BELOW ............................................

1

JURISDICTION ..................................................

1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................

1

STATEMENT OF THE CASE ............................

1

A. The Illinois statutory scheme and how it

favors some speakers over others.............

1

B. Proceedings below .....................................

3

ARGUMENT ........................................................

4

I. THIS COURT SHOULD CLARIFY FOR

LOWER COURTS THAT POLITICAL

CONTRIBUTION

LIMITS

THAT

FAVOR ONE TYPE OF SPEAKER

OVER ANOTHER SHOULD RECEIVE

STRICT SCRUTINY .................................

4

A. Lower courts have not given meaningful scrutiny to contribution limits that

favor some donors over others ............

5

B. Courts that take a deferential approach

to discriminatory contribution limits

insufficiently protect First Amendment

rights ....................................................

8

iv

TABLE OF CONTENTS—Continued

Page

C. Contribution limits that facially discriminate between different classes of

donors warrant the highest level of

judicial scrutiny ...................................

9

D. The Illinois statutory scheme that

strongly favors legislative caucus committees and other political contributors

over other speakers is not narrowly

tailored to prevent corruption and

cannot survive strict scrutiny .............

13

II. IN THE ALTERNATIVE, THE COURT

SHOULD OVERRULE THE HOLDING

IN BUCKLEY THAT APPLIED A

LESSER STANDARD OF SCRUTINY

TO

POLITICAL

CONTRIBUTION

LIMITS THAN STRICT SCRUTINY .......

15

CONCLUSION ....................................................

20

APPENDIX

APPENDIX A: FINAL JUDGMENT, Seventh

Circuit Court of Appeals (September 13,

2018) ...............................................................

1a

APPENDIX B: OPINION, Seventh Circuit

Court of Appeals (September 13, 2018) .........

3a

APPENDIX C: MEMORANDUM OPINION

AND ORDER, District Court for the

Northern District of Illinois (September 7,

2016) ...............................................................

24a

v

TABLE OF CONTENTS—Continued

Page

APPENDIX D: JUDGMENT, District Court

for the Northern District of Illinois

(September 7, 2016) .......................................

58a

APPENDIX E: 10 ILCS 5/9-1.8 ....................

60a

10 ILCS 5/9-8.5 ....................

63a

vi

TABLE OF AUTHORITIES

CASES

Page(s)

1A Auto, Inc. v. Dir. of the Office of

Campaign & Political Fin.,

480 Mass. 423 (2018) ................................

6, 7

Ariz. Free Enterprise Club’s Freedom

Club PAC v. Bennett,

564 U.S. 721 (2011) ...................................

11

Ark. Writers’ Project v. Ragland,

481 U.S. 221 (1987) ...................................

12

Austin v. Mich. State Chamber of Comm.,

494 U.S. 652 (1990) ............................. 11, 12, 15

Buckley v. Valeo,

424 U.S. 1 (1976) ......................................passim

Citizens United v. FEC,

558 U.S. 310 (2010) ..................................passim

City of Ladue v. Gilleo,

512 U.S. 43 (1994) .....................................

17

Colo. Republican Campaign Cmte. v FEC,

518 U.S. 604 (1996) ...................................

18

Davis v. FEC,

554 U.S. 724 (2008) ...................................

9

FEC v. Colo. Republican Campaign Cmte.,

533 U.S. 431 (2001) ...................................

10

FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986) ...................................

13

FEC v. Nat’l Conservative

Political Action Comm.,

470 U.S. 480 (1985) ...................................

17

vii

TABLE OF AUTHORITIES—Continued

Page(s)

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007) ...................................

19

Ill. Liberty PAC v. Madigan,

212 F. Supp. 3d 753 (N.D. Ill., Sept. 7,

2016) ..........................................................

1, 3

Ill. Liberty PAC v. Madigan,

904 F.3d 463 (7th Cir. 2018) .............. 1, 4, 12-13

Iowa Right to Life Comm., Inc. v. Tooker,

717 F.3d 567 (8th Cir. 2013) .....................

7

Janus v. AFSCME, Council 31,

138 S. Ct. 2448 (2018) ...............................

19

McCutcheon v. FEC,

572 U.S. 175 (2014) ..................................passim

Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377 (2000) ..................................passim

Protect My Check, Inc. v. Dilger,

176 F. Supp. 3d 685 (E.D. Ky. 2016) ....... 7-8, 12

Randall v. Sorrell,

548 U.S. 230 (2006) ...................................

10

Renton v. Playtime Theaters, Inc.,

475 U.S. 41 (1986) .....................................

12

Riddle v. Hickenlooper,

742 F.3d 922 (10th Cir. 2014) ................. 4, 7, 11

Russell v. Burris,

146 F.3d 563 (8th Cir. 1998) ................. 7, 11, 12

Texas v. Johnson,

491 U.S. 397 (1989) ...................................

17

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Tinker v. Des Moines Independent

Community School Dist.,

393 U.S. 503 (1969) ...................................

17

Wagner v. FEC,

793 F.3d 1 (D.C. Cir. 2015) .......................

7

CONSTITUTION

U.S. Const. amend. I ...................................passim

U.S. Const. amend. XIV ..............................passim

STATUTES

28 U.S.C. § 1254(l) ........................................

1

42 U.S.C. § 1983 ...........................................

3

10 Ill. Comp. Stat. 5/9-1.8(c) ........................

1, 2

10 Ill. Comp. Stat. 5/9-8.5(b) ........................ 1, 2, 3

10 Ill. Comp. Stat. 5/9-8.5(c) ........................

1

10 Ill. Comp. Stat. 5/9-8.5(d) ........................

1

10 Ill. Comp. Stat. 5/9-8.5(g) ........................

2

10 Ill. Comp. Stat. 5/9-8.5(h) ........................

1, 3

10 Ill. Comp. Stat. 5/9-8.5(h-5).....................

3

10 Ill. Comp. Stat. 5/9-8.5(h-10)...................

3

RULES

Fed. R. Civ. P. 12(b)(6) .................................

3

1

OPINIONS BELOW

The Seventh Circuit’s opinion is reported at Ill.

Liberty PAC v. Madigan, 904 F.3d 463 (7th Cir. 2018).

The opinion and judgment are reproduced in the

Appendix. App. 3a, 1a. The district court’s opinion is

reported at Ill. Liberty PAC v. Madigan, 212 F. Supp.

3d 753 (N.D. Ill., Sept. 7, 2016) and reproduced at App.

24a. The district court’s judgment is reproduced at

App. 58a.

JURISDICTION

The Seventh Circuit entered its judgment on

September 13, 2018. App. 1a. This Court has

Jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment states that “Congress shall

make no law . . . abridging the freedom of speech.” U.S.

Const. amend. I.

The Statutes of the State of Illinois challenged by

this petition are 10 Ill. Comp. Stat. 5/9-8.5(b)–(d), (h),

(h-5), (h-10) and 5/9-1.8(c), App. 60a.

STATEMENT OF THE CASE

This case is brought under the Free Speech Clause

of the First Amendment against an Illinois statutory

scheme on political contribution limits that favors

certain speakers over others.

A. The Illinois statutory scheme and how it

favors some speakers over others

In particular, the Illinois Disclosure and Regulation

of Campaign Contributions and Expenditures Act

(the “Act”) gives political spending advantages to

2

legislative caucus committees that it does not give to

other political speakers. The most striking advantage

is that in general elections a legislative caucus committee, like a political party committee, may make

unlimited contributions to a candidate’s campaign

committee. 10 Ill. Comp. Stat. 5/9-8.5(b). App. 63a. In

contrast, donations to a candidate for General Assembly

are limited to $5,000 from an individual; $10,000 from

a corporation, labor organization, or association; and

$50,000 from a political action committee (“PAC”) or

another candidate committee. Id.1

Only a small number of speakers, however, may

take advantage of the uninhibited free speech given

to legislative caucus committees. A legislative caucus

committee may be formed by one of only four individuals in the State of Illinois: the Speaker of the House of

Representatives, the Minority Leader of the House of

Representatives, the President of the Senate, or the

Minority Leader of the Senate. Id. 5/9-1.8(c), App. 60a.

Alternatively, it may be formed by a group of five

or more state Senators or ten or more state

representatives, and it must be established for the

purpose of electing candidates to the General

Assembly. Id.

Another advantage given to established legislative

caucus committees is that once candidates receive a

contribution from one legislative caucus committee,

they may not receive a contribution from another

caucus committee. Id. 5/9-8.5(b), App. 64a. This rule

1

The contribution limits have been adjusted upward for

inflation since the Act was enacted, but the original figures are

used herein for simplicity’s sake. See 10 Ill. Comp. Stat. 5/98.5(g).

3

does not apply to contributions from individuals,

PACs, corporations, labor organizations, associations,

and other candidate committees. Id.

Finally, the Act’s differing limits on contributions

from different types of speakers are lifted for most

speakers when self-funding or independent expenditures hit a certain level in a race. Id. 5/9-8.5(h), (h-5),

and (h-10), App. 67a-69a.

B. Proceedings below

Petitioners are a PAC, an individual contributor,

and a state Senator in Illinois seeking to make and

receive political contributions in excess of the discriminatory limits imposed by the Act. On July 24,

2012, Petitioners filed this declaratory judgment

action under 42 U.S.C. § 1983 in U.S. District Court

for the Northern District of Illinois against the Illinois

Attorney General and members of the Illinois State

Board of Elections. Petitioners challenged the Act

on grounds that favoring one type of speaker over

another violated the Free Speech Clause of the First

Amendment and the Equal Protection Clause of the

Fourteenth Amendment.

Petitioners filed an initial Motion for Preliminary

Injunction, which the district court denied and the

Seventh Circuit summarily affirmed. The district

court then dismissed most of Petitioners’ claims under

Federal Rule of Civil Procedure 12(b)(6). The court

then held a bench trial on the claim that legislative

caucus committees, in particular, are unconstitutionally favored over other types of political committees.

On September 7, 2016, the district court ruled in favor

of Respondents/Defendants that the Act was constitutional. Ill. Liberty PAC v. Madigan, 212 F. Supp. 3d

753 (N.D. Ill., Sept. 7, 2016), App. 24a. Petitioners

4

appealed the decision to the U.S. Court of Appeals for

the Seventh Circuit. On September 13, 2018, the

Seventh Circuit affirmed the decision of the district

court. Ill. Liberty PAC v. Madigan, 904 F.3d 463 (7th

Cir. 2018), App. 3a.

In affirming the decision of the district court, the

Court of Appeals subjected the Act only to intermediate scrutiny. Id., at 469 n.3, App. 10a.

ARGUMENT

I. THIS COURT SHOULD CLARIFY FOR

LOWER COURTS THAT POLITICAL CONTRIBUTION LIMITS THAT FAVOR ONE

TYPE OF SPEAKER OVER ANOTHER

SHOULD RECEIVE STRICT SCRUTINY.

Lower courts require clarity regarding the level of

scrutiny they should apply in First Amendment challenges to statutes that impose different campaign

finance contribution limits on different classes of donors.

See Riddle v. Hickenlooper, 742 F.3d 922, 930 (10th

Cir. 2014) (overturning a Colorado contribution limit

scheme that doubled the contribution limits to major

party candidates versus write-in candidates) (Gorusch,

J., concurring) (“I confess some uncertainty about

the level of scrutiny the Supreme Court wishes us to

apply. . . .”).

In the absence of guidance from this Court, some

lower courts, including the court below, have given

contribution limits that treat some donors less favorably than others only minimal scrutiny. In light of the

fundamental First Amendment interests at stake,

such limits should receive the highest scrutiny to

require the government to justify its discriminatory

treatment of different donors.

5

In this Court’s most recent case on political contribution limits, the facts of the case did not require

addressing what level of scrutiny should be applied.

The Court determined that it “need not parse the

differences” between whether strict scrutiny or the

“closely drawn” test applies. McCutcheon v. FEC, 572

U.S. 175, 199 (2014).

In the present case, Petitioners challenge a legislative contribution limit scheme that strongly favors

committees run by Illinois’s legislative leaders over

other political donors. The case presents an opportunity for the Court to clarify the law and ensure that

courts sufficiently protect First Amendment rights.

A. Lower courts have not given meaningful scrutiny to contribution limits that

favor some donors over others.

Although the First Amendment generally demands

that the government treat all speakers equally, especially when they speak about politics, the court below

and other lower courts have given minimal scrutiny to

campaign finance schemes that impose lower limits on

some donors than on others.

“The First Amendment stands against . . .

restrictions distinguishing among different speakers,

allowing speech by some but not others.” Citizens

United v. FEC, 558 U.S. 310, 340 (2010). “[S]peech

restrictions based on the identity of the speaker are all

too often simply a means to control content,” Id. The

First Amendment prohibits efforts by the government

to control the “relative ability of individuals and groups

to influence the outcome of elections.” Id. at 350. The

Court has stated that campaign contribution limits

must be narrowly tailored to serve the government’s

interest. The only government interest that the Court

6

has recognized as “compelling” is the interest in preventing actual or apparent quid pro quo corruption.

McCutcheon v. FEC, 572 U.S. 185, 192 (2014). Allowing

the government to pursue other interests would “impermissibly inject” the government “‘into the debate over

who should govern.’” Id.

Nonetheless, the lower court’s decision showed no

concern for the discriminatory nature of Illinois’s scheme

of campaign contribution limits. Those limits allow

select committees to give candidates unlimited amounts

at times when all other donors’ contributions are

limited. Although Petitioners challenged the scheme’s

apparent favoritism, the lower court analysis focused

not on whether the state was justified in treating some

donors more favorably than others, but only on

whether the limit on any given class of donor was too

low. App. 11a. The court concluded that Petitioners

could not challenge the state’s more favorable treatment of certain donors unless they could “plausibly

plead” that the state was motivated by a desire to

benefit those donors and not actually “concerned about

corruption.” App. 14a.

In other words, the lower court held that contribution limits that provide higher contributions for some

donors than for others present no First Amendment

problem unless a plaintiff can, somehow, show that

the legislature had an improper motive.

The Massachusetts Supreme Judicial Court took

the same view in a recent decision. It rejected First

Amendment and Equal Protection Clause challenges

to a Massachusetts statute that bans for-profit business entities from making political contributions, but

it does not ban unions and non-profit organizations.

See 1A Auto, Inc. v. Dir. of the Office of Campaign &

Political Fin., 480 Mass. 423, 425 (2018). In that

7

case, the Court concluded that a ban on corporate

contributions would tend to prevent corruption, and

the government’s failure to similarly limit union and

nonprofit contributions was irrelevant. Like the

Seventh Circuit in this case, the Massachusetts court

concluded that plaintiffs could not prevail on their

First Amendment claim in the absence of evidence

that the legislature was actually motivated by a desire

to favor some political donors over others rather than

a desire to prevent corruption. Id. at 438.

The District of Columbia Circuit and the Eighth

Circuit have similarly held that if a ban on contributions by a particular class of donors, considered by

itself, survives First Amendment scrutiny, then an

Equal Protection Clause challenge to the ban, based

on the government’s more favorable treatment of other

donors, can receive no greater scrutiny and can fare no

better. See Wagner v. FEC, 793 F.3d 1, 32 (D.C. Cir.

2015); Iowa Right to Life Comm., Inc. v. Tooker, 717

F.3d 567, 600-03 & n.11 (8th Cir. 2013).

Some lower courts, however, have required the government to justify its differential treatment of different

donors. They have required the government to show

that its contribution limits are narrowly tailored to

address differences in the potential to corrupt that are

inherent in the different classes’ respective contributions. See Riddle, 742 F.3d at 928-30 (government

must justify different contributions limits for different

candidates by showing the candidates subject to lower

limits “were more corruptible (or appeared more corruptible)” than the favored candidates); Russell v. Burris,

146 F.3d 563, 571-72 (8th Cir. 1998) (government must

justify different contribution limits for regular PACs

and “small-donor” PACs by showing they were based

on differences in the potential for corruption); Protect

8

My Check, Inc. v. Dilger, 176 F. Supp. 3d 685, 691-92

(E.D. Ky. 2016) (government required to justify

different treatment where statute banned contributions by corporations but not by unions or LLCs).

These conflicting decisions illustrate that courts

require guidance on how to analyze First Amendment

challenges to campaign finance rules that place lower

contribution limits on some speakers than on others.

They also show that, in the absence of guidance from

this Court, some lower courts will not require the

government to justify its decisions to discriminate,

despite the potential harm to fundamental First

Amendment interests.

B. Courts that take a deferential approach to

discriminatory contribution limits insufficiently protect First Amendment rights.

The analysis the lower court in this case and other

courts have applied is inadequate to protect First

Amendment rights.

To disregard the government’s preferential treatment of certain political donors, as these courts have,

is to disregard key reasons why the Court subjects

contribution limits, in general, to rigorous scrutiny.

Those reasons are to ensure that the government does

not use limits to indirectly control the content of speech,

Citizens United, 558 U.S. at 340; to ensure that the

public is not “deprive[d] . . . of the right and privilege

to determine for itself what speech and speakers are

worthy of consideration, id. at 341; and to prevent the

government from “impermissibly inject[ing] [itself]

‘into the debate over who should govern,’” McCutcheon,

572 U.S. at 750.

Indeed, discriminatory limits threaten to distort the

outcomes of elections. When the government exempts

9

select donors from contribution limits that apply to

others, it “make[s] and implement[s] judgments about

which strengths should be permitted to contribute to

the outcome of an election.” Davis v. FEC, 554 U.S.

724, 742 (2008). In Illinois, the state has effectively

decided that support from the state’s political parties

and legislative leaders should be allowed to contribute

to a candidate’s success much more than support from

other classes of donors. That violates the principle,

under our system of government, that voters, rather

than elected officials, should “evaluate the strengths

and weaknesses of candidates competing for office.” Id.

Uniquely empowering the top four members of the

legislature to give unlimited or outsized contributions,

as Illinois has, directly contradicts the principle that

“those who govern should be the last people to help decide

who should govern.” McCutcheon, 572 U.S. at 192.

Despite discriminatory limits’ threat to fundamental First Amendment interests, lower courts have

taken a deferential approach that ensures that such

limits will virtually never be struck down.

C. Contribution limits that facially discriminate between different classes of

donors warrant the highest level of

judicial scrutiny.

To ensure that courts adequately protect First Amendment rights, this Court should subject contribution

limits that favor some donors over others to strict

scrutiny, or at least to rigorous scrutiny that requires

the government to justify its differential treatment of

different classes of donors.

The Court has stated that even ordinary campaign

contribution limits warrant “rigorous” scrutiny, which

requires an assessment of “the fit between the stated

10

governmental objective and the means selected to

achieve that objective.” Although the fit need not be

“perfect,” it must be “reasonable” and must use a

“means narrowly tailored to achieve the desired

objective.” McCutcheon, 572 U.S. at 218.

In addition to the narrow tailoring requirement, the

Court has also said that campaign contribution limits

must serve a “compelling” government interest. Id. at

199. And the Court has recently clarified that there is

only one government interest sufficiently important to

justify contribution limits: preventing quid pro quo

corruption or its appearance. Id. at 192.

Thus, when a plaintiff challenges campaign contribution limits under the First Amendment, as Petitioners

do here, the government bears the burden to show

that those limits are narrowly tailored to prevent

corruption. Id. at 192, 218. To meet that burden,

the government must provide “adequate evidentiary

grounds.” FEC v. Colo. Republican Campaign Cmte.,

533 U.S. 431, 456 (2001). “[M]ere conjecture” will not

suffice. Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377,

392 (2000); see also Randall v. Sorrell, 548 U.S. 230,

261 (2006) (striking limits where government presented no evidence to justify them).

Strict scrutiny is especially necessary when campaign

contribution limits favor some political speakers over

others. “Premised on mistrust of governmental power,

the First Amendment stands against . . . restrictions

distinguishing among different speakers, allowing

speech by some but not others.” Citizens United v.

FEC, 558 U.S. 310, 340 (2010). “Speech restrictions

based on the identity of the speaker are all too often

simply a means to control content.” Id. In particular,

the First Amendment prohibits government attempts

11

to control the “relative ability of individuals and

groups to influence the outcome of elections.” Id. at

350. The government may not “restrict the political

participation of some in order to enhance the relative

influence of others.” McCutcheon, 572 U.S. at 191

(citing Ariz. Free Enterprise Club’s Freedom Club PAC

v. Bennett, 564 U.S. 721, 749-750 (2011)).

This Court, however, has not specifically addressed

how courts should analyze contribution limits that

impose lower limits on some donors than on others,

such as the Illinois limits that Petitioners challenge.

The First Amendment should require strict scrutiny

in such instances because such restrictions are “all

too often simply a means to control content.” Citizens

United, 558 U.S. at 340. Petitioners’ challenge to the

Illinois contribution limits implicates not only the

First Amendment concerns inherent in any challenge

to contribution limits, but also the First Amendment’s

opposition to discrimination favoring or opposing

certain political speakers; therefore, strict scrutiny

should apply. See Austin v. Mich. State Chamber of

Comm., 494 U.S. 652, 666 (1990) (statute imposing

different independent-expenditure limits on different

types of associations subject to strict scrutiny), overruled

on other grounds by Citizens United, 558 U.S. 310;

Riddle, 742 F.3d at 931-322 (Gorusch, J., concurring)

(“[W]hatever level of scrutiny should apply to equal

infringements of the right to contribute in the First

Amendment context, the strictest degree of scrutiny is

warranted under the Fourteenth Amendment equal

protection doctrine when the government proceeds to

discriminate against some persons in the exercise

of that right.”); Russell, 146 F.3d at 571-72 (applying

strict scrutiny in equal protection challenge to statute

allowing “small donor” PACs to give candidates as

12

much as $2,500 while limiting other PACs’ contributions to $300 or $100); Protect My Check, Inc. v. Dilger,

176 F. Supp. 3d 685, 691-92 (E.D. Ky. 2016) (concluding that “strict scrutiny applies to contribution bans

with equal protection implications,” holding Kentucky

statute unconstitutional to the extent that it banned

contributions by corporations and their PACs but not

union and LLC PACs).

Although the Austin, Russell, and Protect My Check

cases addressed claims under the Equal Protection

Clause, it would make no sense to apply lesser scrutiny to a First Amendment claim challenging the same

type of discrimination. Cf. Ark. Writers’ Project v.

Ragland, 481 U.S. 221, 227 n.3 (1987) (although First

Amendment challenge to state’s collection of sales tax

from one magazine, but not other magazines and

newspapers, was “obviously intertwined with interests

arising under the Equal Protection Clause,” the Court

“analyze[d] it primarily in First Amendment terms”

because it “directly implicate[d] freedom of the press”);

Renton v. Playtime Theaters, Inc., 475 U.S. 41, 55 n.4

(1986) (Court summarily rejected equal protection

claim after analyzing and rejecting First Amendment

claim, stating that plaintiffs could “fare no better under

the Equal Protection Clause than under the First

Amendment itself”).

In this case, however, the Seventh Circuit differed

from the line of cases above and, instead, applied

intermediate scrutiny: “[The] argument that the First

Amendment requires strict judicial scrutiny of contribution limits . . . is foreclosed by Buckley and its

successors. . . . [T]he Supreme Court has adopted a

form of intermediate scrutiny for use in First Amendment challenges to contribution limits.” Ill. Liberty

13

PAC v. Madigan, 904 F.3d 463, 469 n.3 (7th Cir. 2018),

App. 10a.

This Court should grant certiorari in this case to

clarify to lower courts that instances of discriminatory

contribution limits require strict scrutiny.

D. The Illinois statutory scheme that

strongly favors legislative caucus committees and other political contributors

over other speakers is not narrowly tailored to prevent corruption and cannot

survive strict scrutiny.

The main reason the Act’s contribution limits cannot

survive strict scrutiny is that Respondents have failed

to offer evidence to show that the Act’s limits are

narrowly tailored to serve a compelling governmental

interest. Respondents must show the Act’s contribution limits “curtail speech only to the degree necessary

to meet the problem at hand,” avoiding unnecessary

infringement of “speech that does not pose the danger

that has prompted the regulation.” FEC v. Mass.

Citizens for Life, Inc., 479 U.S. 238, 265 (1986).

Respondents have never argued, much less shown,

that the Act’s discriminatory limits are the least

restrictive means of the preventing any corruption

inherent in donors’ contributions. Indeed, Respondents

have never explained how the Act’s different limits on

different types of donors relate to the potential for

corruption inherent in those donors’ contributions.

The most preferential treatment in the Act is given

to legislative caucus committees. To show narrow

tailoring, Respondents would have had to show why

the potential for corruption inherent in legislative

caucus committees’ contributions to candidates is so

much less than the potential for corruption inherent

14

in contributions by other donors, such as PACs. Only

then would the state be justified in allowing caucus

committees to make unlimited contributions to candidates while limiting PAC contributions to $50,000

and limiting other donors to lower amounts. But

Respondents did not present any evidence regarding

the potential for corruption inherent in any type of

donor’s contributions.

It is evident from the face of the Act that these limits

are not narrowly tailored in light of their treatment of

legislative caucus committees versus their treatment

of all other types of campaign committees. First, while

the Act treats legislative caucus committees like political party committees, which are generally allowed to

make unlimited contributions to candidates, unlike

political party committees, legislative caucus committees are run by legislative leaders, who can use their

caucus committees to serve their personal interests.

Second, there is no reason to believe that contributions

from legislative caucus committees, which the Act

does not limit, pose a significantly lesser threat of

corruption than contributions from a PAC controlled

by a legislator, which the Act limits. Third, a candidate

may accept contributions from only one legislative

caucus committee during a given primary or general

election. This limitation serves no apparent purpose

except to “lock in” a candidate to depend on the first

legislative caucus committee that gives him or her

money and to make it difficult for new legislative

caucus committees to arise and compete.

In addition, the Illinois statutory scheme preferences other political speakers. It discriminates against

individual citizens and in favor of corporations,

unions, and other associations in donation limits. It

removes limits in response to self-funding and inde-

15

pendent expenditures, belying the notion that the

limits were designed to prevent corruption. It also

places no limits on political party committees. In sum,

it is not narrowly tailored to prevent corruption and,

therefore, cannot survive strict scrutiny.

If the lower courts had correctly applied strict

scrutiny in this case, they would have overturned the

Act, as this Court now should do.

II. IN THE ALTERNATIVE, THE COURT

SHOULD OVERRULE THE HOLDING IN

BUCKLEY THAT APPLIED A LESSER

STANDARD OF SCRUTINY TO POLITICAL CONTRIBUTION LIMITS THAN

STRICT SCRUTINY.

For the reasons explained in Section I, political

contribution limits that favor one type of speaker over

another should receive strict scrutiny. That specific

question was not addressed in Buckley, and that is

the standard that this Court applies in other First

Amendment cases where the government favors

some speakers over others. See Austin v. Mich. State

Chamber of Comm., 494 U.S. 652, 666 (1990) (statute

imposing different independent-expenditure limits

on different types of associations subject to strict

scrutiny), overruled on other grounds by Citizens

United, 558 U.S. 310 (2010). In the alternative, all

campaign contribution limits should receive strict

scrutiny, regardless of whether they favor one type of

speaker over another.

Both contributions to political campaigns and direct

expenditures, “generate essential political speech” by

fostering discussion of public issues and candidate

qualifications. Nixon v. Shrink Missouri Government

PAC, 528 U.S. 377, 412 (2000) (Thomas, J., dissent-

16

ing); see also id., at 410–411. Buckley itself recognized

that both contribution and expenditure limits “operate

in an area of the most fundamental First Amendment

activities” and “implicate fundamental First Amendment interests.” 424 U.S., at 14, 23. Yet, the Buckley

decision distinguished between limits on campaign

expenditures and limits on campaign contributions.

Buckley, 424 U.S. at 23. For expenditures, this Court

in Buckley applied strict scrutiny. Id. at 44. For

contributions, this Court in Buckley applied what this

Court in McCutcheon later described as the “closely

drawn” test, id. at 25, and what the Seventh Circuit,

below, in this case described as intermediate scrutiny.

App. 10a. The “closely drawn” test is a lesser standard

of review than strict scrutiny but is still “rigorous.” Id.

at 29. It requires that contribution limits be “closely

drawn” to the asserted government interest of preventing corruption. The Buckley court held that

congressional campaign contribution limits survived

the “closely drawn” test, while campaign expenditure

limits did not survive strict scrutiny. Id. at 58.

In the plurality opinion in McCutcheon, this Court

ruled that aggregate campaign contribution limits did

not survive scrutiny, regardless of whether the “closely

drawn” test or strict scrutiny applied. McCutcheon,

572 U.S. at 199. The Court did not address the

question of whether the lesser standard used in

Buckley should be abandoned.

“The analytic foundation of Buckley . . . was tenuous

from the very beginning and has only continued to

erode in the intervening years.” Shrink Missouri, 528

U.S. at 412 (Thomas, J., dissenting). “To justify a

lesser standard of review for contribution limits,

Buckley relied on the premise that contributions are

different in kind from direct expenditures. None of the

17

Court’s bases for that premise withstands careful

review.” McCutcheon, 572 U.S. at 229 (Thomas, J,

concurring).

The first justification that this Court in Buckley

gave for applying lesser scrutiny to contribution limits

was that “the transformation of contributions into

political debate involves speech by someone other than

the contributor.” 424 U.S., at 21. But the Court has

since rejected this approach as affording insufficient

First Amendment protection to “the voices of those of

modest means as opposed to those sufficiently wealthy

to be able to buy expensive media ads with their

own resources.” Federal Election Comm’n v. National

Conservative Political Action Comm., 470 U.S. 480,

495 (1985); see Shrink Missouri, 528 U.S. at 413–414

(Thomas, J., dissenting).

Another justification for lesser scrutiny for contribution limits given in Buckley was that restriction on

speech by contribution limits is only marginal because

“[a] contribution serves as a general expression of

support for the candidate and his views, but does not

communicate the underlying basis for the support.”

424 U.S. at 20, 21. But this Court has never required

a speaker to explain the reasons for his position in

order to obtain full First Amendment protection.

McCutcheon, 572 U.S. at 229 (Thomas, J., concurring).

Rather, this Court has consistently held that speech is

protected even “when the underlying basis for a

position is not given.” Shrink Missouri, 528 U.S. at

415, n. 3 (Thomas, J., dissenting); see, e.g., City of

Ladue v. Gilleo, 512 U.S. 43, 46 (1994) (sign reading

“For Peace in the Gulf”); Texas v. Johnson, 491 U.S.

397, 416 (1989) (flag burning); Tinker v. Des Moines

Independent Community School Dist., 393 U.S. 503,

511 (1969) (black armband signifying opposition to

18

Vietnam War); see also Colo. Republican Campaign

Cmte. v. FEC, 518 U.S. 604, 640 (1996) (opinion of

Thomas, J.) (“Even a pure message of support, unadorned

with reasons, is valuable to the democratic process”).

A third rationale for lesser scrutiny for contribution

limits presented by this Court in Buckley was that

contribution limits warrant less stringent review

because “[t]he quantity of communication by the

contributor does not increase perceptibly with the size

of his contribution,” and “[a]t most, the size of the

contribution provides a very rough index of the

intensity of the contributor’s support for the candidate.” 424 U.S. at 21. But political contributions

do increase the quantity of communication by

“amplifying the voice of the candidate” and “help[ing]

to ensure the dissemination of the messages that the

contributor wishes to convey.” Shrink Missouri, 528

U.S. at 415 (Thomas, J., dissenting). They also serve

as a quantifiable metric of the intensity of a particular

contributor’s support, as demonstrated by the frequent

practice of giving different amounts to different

candidates.

This Court in Buckley also found less scrutiny was

warranted for contribution limits on a political contributor because they “involve[] little direct restraint

on his political communication, for it permits the symbolic expression of support evidenced by a contribution

but does not in any way infringe the contributor’s

freedom to discuss candidates and issues.” Buckley,

424 U.S. at 21. But this Court rejected that justification for aggregate contribution limits, noting that “[i]t

is no answer to say that the individual can simply

contribute less money to more people” because “[t]o

require one person to contribute at lower levels than

others because he wants to support more candidates

19

or causes is to impose a special burden on broader

participation in the democratic process.” McCutcheon,

572 U.S. at 231.

The rationales provided for providing lesser scrutiny

to contribution limits in Buckley have not stood

the test of time. Contributions and expenditures are

deserving of the same strict scrutiny because

“[c]ontributions and expenditures are simply ‘two

sides of the same First Amendment coin.’” Id. quoting

Buckley, 424 U.S. at 241, 244 (Burger, C. J., concurring in part and dissenting in part). They both

represent political speech and should be deserving of

the highest level of protection afforded by the Court.

The distinction between contributions and expenditures should be reexamined by the Court, and “the

half-way house . . . created in Buckley ought to be

eliminated.” Shrink Missouri, 528 U.S. at 410

(Kennedy, J., dissenting).

This Court has “not hesitated to overrule decisions

offensive to the First Amendment.” Citizens United,

558 U.S. at 363 (quoting FEC v. Wis. Right to Life, Inc.,

551 U.S. 449, 500 (2007) (opinion of Scalia, J.)). Stare

decisis applies with perhaps least force of all

to decisions that wrongly denied First Amendment

rights. Janus v. AFSCME, Council 31, 138 S. Ct. 2448,

2478 (2018). This Court has identified factors that it

will consider in deciding to revisit a decision. Among

the relevant ones here are: the quality of Buckley’s

reasoning, whether it conflicts with its other precedents, developments since Buckley, and reliance on

Buckley. See Janus, 138 S. Ct. at 2478-2479. Here,

the rationale for Buckley has eroded; this Court’s

precedents since Buckley have conflicted with it as

they have recognized the importance of such speech,

see McCutcheon, 572 U.S. at 231, Citizens United, 558

20

U.S. at 363; developments since Buckley have shown

that limits on contributions have not limited the

amount of money in political races; there is no

discernable decrease in corruption or its appearance;

and any reliance interest that a government has for

imposing restrictions on contributions are outweighed

by the First Amendment interests.

This case is a suitable vehicle for this Court to

reevaluate Buckley’s application of lesser scrutiny to

contribution limits in favor of a more consistent

approach: applying strict scrutiny to all limits on

political contributions.

CONCLUSION

This Court should clarify for lower courts that

political contribution limits that facially discriminate

against certain types of speakers, like those in Illinois,

should receive strict scrutiny. In the alternative, the

Court should overrule the holding in Buckley and subject all political contribution limits to strict scrutiny.

For these reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

JEFFREY M. SCHWAB

Counsel of Record

BRIAN KELSEY

REILLY STEPHENS

LIBERTY JUSTICE CENTER

190 LaSalle St., Ste. 1500

Chicago, IL 60603

(312) 263-7668

jschwab@libertyjusticecenter.org

Counsel for Petitioners

December 12, 2018