defendant opposition memo: illinois liberty pac v. madigan et al

7/31/2019 Defendant Opposition Memo: Illinois Liberty PAC v. Madigan et al

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ILLINOIS LIBERTY PAC, )

)Plaintiffs, ) No. 12-cv-5811

)

v. )

) Judge Gary Feinerman

LISA MADIGAN, et al., )

)

Defendants. )

DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR A PRELIMINARY

INJUNCTION AND/OR EXPEDITED PERMANENT INJUNCTIVE RELIEF

LISA MADIGANIllinois Attorney General

MARNI M. MALOWITZ

LAURA M. RAWSKI

Assistant Attorneys GeneralGeneral Law Bureau100 West Randolph Street, 13th FloorChicago, IL [email protected]@atg.state.il.us

Case: 1:12-cv-05811 Document #: 19 Filed: 08/10/12 Page 1 of 17 PageID #:348


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Defendants LISA MADIGAN, Attorney General of the State of Illinois, WILLIAM M.

MCGUFFAGE, Illinois State Board of Elections (Board) Chairman, JESSE R. SMART, Board

Vice Chairman, HAROLD D. BYERS, BETTY J. COFFRIN, ERNEST L. GOWEN, JUDITH

C. RICE, BRYAN A. SCHNEIDER, and CHARLES W. SCHOLZ, all Board Members

(collectively, Defendants), by their attorney, hereby submit their Opposition to Plaintiffs

Motion for Preliminary Injunction and/or Expedited Permanent Injunction.

INTRODUCTION

Plaintiff Illinois Liberty PACs Memorandum devotes less than six of its fifteen pages to

arguing that its constitutional rights are violated by Illinoiss first comprehensive campaign

finance reform legislation, the Disclosure and Regulation of Campaign Contribution and

Expenditures Act, 10 ILCS 5/9-1, et seq. (the Act). Much of the remainder is an irrelevant

diatribe about various elected officials and political parties. Plaintiff also complains about

numerous provisions of the Act without challenging their constitutionality, including: (1)

restrictions on the number of political action committees (PACs) that a candidate can form; (2)

the lack of restrictions on individuals simultaneously directing candidate committees and

political parties; (3) sunset provisions on campaign contribution limitations for political parties;

and (4) the lifting of contribution limitations in response to high volumes of independent or self-

funded expenditures. See Pl.s Mem. at 4. This brief will focus on the Acts challenged

provisions, the contribution limitations in Sections 5/9-8.5(a)-(d). Plaintiff challenges under the

First Amendment the Acts implementation of contribution limitations, and under the Equal

Protection Clause of the Fourteenth Amendment, the Acts purported disparate treatment of

PACs (and other non-political party speakers) as compared with political parties. The challenged

provisions are constitutionally sound because they are closely drawn to serve the states



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sufficiently important interest in preventing quid pro quo corruption and the appearance thereof.

Accordingly, Plaintiff cannot demonstrate a likelihood of success on the merits of its claims, and

its request for injunctive relief should be denied.

FACTUAL BACKGROUND

In early 2009, former governor Rod Blagojevich was federally indicted on nineteen

counts of corruption, replete with allegations of pay-to-play politics, including: offering to

increase Medicaid reimbursement rates in exchange for campaign contributions; soliciting

campaign contributions from a racetrack executive in exchange for signing a then-pending bill

benefitting the horse racing industry; and perhaps most notoriously, attempting to sell newly-

elected President Obamas vacant U.S. Senate seat to the highest campaign contributor. See

Superseding Indictment (Ex. A). Against this backdrop, the Illinois legislature sought to reform

its electoral process and restore faith in government. As part of this effort, they enacted

campaign finance reform to curb corruption. The Acts adoption in December 2009 made Illinois

one of the last states in the nation to enact contribution limitations in state elections. Indeed, only

four states Missouri, Oregon, Utah, and Virginia currently do not limit campaign

contributions. See National Survey (Ex. B).

Consistent with existing federal law permitting contribution limitations enacted to

prevent quid quo pro corruption or the appearance of corruption, see Buckley v. Valeo, 424 U.S.

1, 47 (1976), the Act set limits on campaign contributions from individuals, corporations, and

PACs. See 10 ILCS 5/9-8.5(a)-(d). Political committees under the Act include political party

committees, PACs, candidate political committees, ballot initiative committees, and independent

expenditure committees. 10 ILCS 5/9-1.8. Under the Act, a candidate may not accept

contributions in the aggregate of more than $5,000 from any one individual; $10,000 from any



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one corporation, and $50,000 from any one PAC. 10 ILCS 5/9-8.5(b). Political parties and PACs

are limited to accepting an aggregate amount of $10,000 from any one individual, $20,000 from

any one corporation, and $50,000 from any one PAC in an election cycle. 10 ILCS 5/9-8.5(c)-

(d). Independent expenditures, which are made without coordinating with a candidate, are

unlimited under the Act. Independent expenditures are a vehicle commonly used by special

interest groups such as the Plaintiff in this matter. Overall, the Act tracks common campaign

finance reform provisions in the other 45 states, and its contribution limitations are comparable

to (and sometimes more generous than) the limitations put into place in other states. See Ex. B.

The Act contains many other provisions aimed at preventing circumvention of

contribution limitations. For example, the Act regulates how political committees are organized:

no public official or candidate may maintain more than one candidate political committee for

each office they hold or seek; political parties are limited to one political party committee for

each geographic location (i.e., statewide, etc.); and with the exception of independent

expenditure PACs, an organization or person may form only one PAC. 10 ILCS 5/9-2. All

political committees are required to retain for two years detailed financial records of all

contributions and expenditures, must file required reporting with the Board, are subject to audit

by the Board and are required to make certain public disclosures. 10 ILCS 5/9-7, 5/9-9, 5/9-9.5,

5/9-10, 5/9-11, 5/9-13. Taken as a whole, the Act aims to increase transparency and integrity in

Illinoiss campaign finance system by regulating how political committees are organized, how

much they may spend and receive during an election, and how they are required to report and

disclose their activities. Nevertheless, Plaintiff offers this Court political arguments and

inflammatory rhetoric in a feeble and unsuccessful attempt to obscure the Acts significant



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reform measures. Specifically, Plaintiff requests that this Court strike down every contribution

limitation enacted to effectuate reform in the wake of Illinoiss political corruption fallout.

ARGUMENT

Illinois Liberty PAC seeks to enjoin the Acts limitations on campaign contributions, 10

ILCS 5/9-8.5(a)-(d). An injunction is an exercise of a very far-reaching power, never to be

indulged in except in a case clearly demanding it.Girl Scouts of Manitou Council, Inc., v. Girl

Scouts of the U.S. of Am., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008) (quotations omitted). Here,

Plaintiffs request for injunctive relief should be denied because the contribution limitations in

the Act do not run afoul of the First and Fourteenth Amendments, as they are closely drawn to

serve an anticorruption interest. Plaintiff has failed to establish a likelihood of success on the

merits, and indeed should not succeed on the merits. Plaintiff asserts that it suffers irreparable

harm each day that it cannot contribute in excess of $50,000 to its chosen candidates (though it

waited nearly three years to challenge the 2009 statute). But that purported harm must be

balanced against the fact that, if an injunction is granted, the people of Illinois will suffer

irreparable harm each day that the limitations are not enforced, leaving the system open in the

upcoming elections to a free-for-all, unregulated and susceptible to corruption.

A. Plaintiff Lacks Standing to Facially Challenge the Entire Statutory Scheme. Facial constitutional challenges are disfavored, as they raise the risk of premature

interpretation of statutes on the basis of factually barebones records and run contrary to the

principle of judicial restraint. Wa. State Grange v. Wa. State Republican Party, 552 U.S. 442,

450 (2008) (quoting Sabri v. United States, 541 U.S. 600, 609 (2004)). Courts are prevented

from delving too far into the province of the legislature through the doctrine of standing. In

order to have standing, a plaintiff must allege an injury fairly traceable to the allegedly unlawful



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conduct that is likely to be redressed by the requested relief. Allen v. Wright, 468 U.S. 737, 751

(1984). The injury alleged must be distinct and palpable rather than conjectural.Id.

Plaintiff frames its challenge as pertaining to the rights ofallnon-party groups, but it

lacks standing to represent such a broad base. To be clear, the only issue that is properly before

this Court is the limitations that pertain to Illinois Liberty PAC, and specifically, what

contributions it may give and receive. See, Wi. Right to Life State PAC v. Barland, 664 F.3d 139,

148 (7th Cir. 2011). Even assuming arguendo that Plaintiff could meet the requirements for a

preliminary injunction, its proposed relief is overbroad and would prevent enforcement of the

anticorruption elements of the Acts statutory scheme outlined above. After all, [a]n order

issued in the area of First Amendment rights must be couched in the narrowest terms that will

accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs

of the public order. Carroll v. President & Comrs of Princess Anne, 393 U.S. 175, 183 (1968);

see alsoBrockett v. Spokane Arcades, Inc., 472 U.S. 491, 502 (1985) (holding that a federal

court should not extend its invalidation of a statute further than necessary to dispose of the case

before it). Although Defendants do not believe that Plaintiff is entitled to any relief, if the Court

were to issue an injunction, it must be narrowly tailored so that it enjoins only the $50,000

contribution limitation on what Plaintiff may give to candidates and parties, and the limitations

on contributions that Plaintiff can receive. See Wi. Right to Life State PAC, 664 F.3d at 148.

B. Plaintiff Fails to Establish a Violation of the First Amendment.a. The Act is closely drawn to serve an anticorruption interest.

Campaign finance regulations implicate core First Amendment interests because raising

and spending money facilitates the resulting political speech. ACLU v. Alvarez, 679 F.3d 583,

596 (7th Cir. 2012) (citing Buckley, 424 U.S. at 19). The Supreme Court has held, however, that

limitations on direct contributions to a candidates campaign do not burden First Amendment



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rights to the same degree as limitations on election expenditures, and as such, contribution

limitations need only satisfy a form of intermediate scrutiny. Wi. Right to Life State PAC, 664

F.3d at 152 (citing Buckley, 424 U.S. at 23-25). Contribution limitations are constitutionally

permissible if they are closely drawn to serve a sufficiently important interest. Id. Preventing

quid pro quo corruption or the appearance thereof has been found to be a sufficiently important

interest under this standard. Nixon v. Shrink MO Govt PAC, 528 U.S. 377, 390 (2000).

Contribution limitations significantly counter the cynical assumption that large donors call the

tune in elections.Id. In determining whether a challenged contribution limitation is closely

drawn, a court must look to whether it was so radical in effect as to render political association

ineffective, drive the sound of a candidates voice below the level of notice, and render

contributions pointless.Id. at 397. Thus, the Supreme Court has struck down contribution limits

aimed at corruption only if they are so restrictively low that they disproportionately burden First

Amendment interests. See, e.g.,Randall v. Sorell, 548 U.S. 230, 253 (2006).

In this case, Plaintiff does not question whether there is sufficient evidence of corruption

in Illinois to justify limitations on PAC contributions under a closely drawn analysis. Further,

Plaintiff cannot credibly claim that the Acts $50,000 PAC contribution limit to candidates or

any other limits are too restrictively low to pass First Amendment muster. In fact, the limits are

significantly higher than campaign contribution limits upheld by the Supreme Court. Cf.Buckley,

424 U.S. at 35 (upholding $1,000 group contribution limit) with Randall, 548 U.S. at 238, 253

(striking down PAC contribution limit of $400 for statewide offices, among others).



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b. Plaintiffs under-inclusiveness challenge fails, as the Act properlyrestricts as little speech as possible to serve its anticorruption purpose.

Plaintiff claims that the Act violates the First Amendment because it is under-inclusive.1

The purpose of an under-inclusiveness analysis is to ensure that the proffered state interest (and

not a desire to stifle particular content or speakers) actually underlies the challenged law. Brown

v. Ent. Merchants Assn, 131 S.Ct. 2729, 2740 (2011) (citations omitted). A law may be struck

down only if it is so wildly under-inclusive that it cannot fairly be said to advance the

governmental interest. Id. Here, Plaintiff does not suggest that the Act is actually intended to

stifle the speech of PACs. Nor does it claim that campaign contribution limits are never effective

at preventing corruption or the appearance of corruption. Rather, Plaintiff claims that the Acts

regulatory scheme should have done more by limitingmore speech that of political parties

and its purported failure to do so renders the Act unconstitutional. A statute is not, however,

invalid under the Constitution because it might have gone farther than it did[.] Buckley, 424

U.S. at 105 (quotations omitted); see alsoBlount v. SEC, 61 F.3d 938, 946 (D.C. Cir. 1995)

([A] regulation is not fatally underinclusive simply because an alternative regulation, which

would restrict more speech or the speech of more people, could be more effective. The First

Amendment does not require the government to curtail as much speech as may conceivably serve

its goals.).

Indeed, legislatures rarely resolve massive problems in one fell regulatory swoop.

Massachusetts v. EPA, 549 U.S. 497, 524 (2007). The legislature may address reform one step

at a time, targeting a problem in phases based on governmental priorities. Buckley, 424 U.S. at

105 (quoting Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955)). In the campaign finance

1 Plaintiff also mentions thatBuckley should be struck down, but it advances no specific reasoning. SeePl.s Mem.at 12. In the past, the Supreme Court has reviewed repeated requests to overrule Buckley but has declined to do so.See, e.g.,Randall, 548 U.S. 230.



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reform context, it is entirely proper for a legislature to focus on one aspect of quid pro quo

corruption, rather than every conceivable instance, even if other types of reform could also

curtail corruption. Ognibene v. Parkes, 671 F.3d 174, 191 (2d Cir. 2012) (citingRepublican

Party of Minn. v. White, 536 U.S. 765, 780 (2002)).

The improper influence of special interest groups like Plaintiff was a major concern in

formulating Illinoiss first campaign finance reform legislation. See 96th Ill. General Assemb.,

H.R. Deb., 81st Legis. Day, Oct. 29, 2009, at 178, Rep. Lang (the whole purpose of

campaign finance rules [is] to control special interest money so that when we came to the

House Floor we didnt just simply vote the way our special interest friends asked us to. So that

the large PACs didnt control our votes.). See Transcript Excerpts (Ex. C). Thus, it was within

the legislatures discretion to target corruption involving PACs (and other non-party speakers)

while tabling further regulation targeted at other forms of campaign finance corruption. In fact,

the Act required the formation of a task force to investigate the possibility of additional reform.

10 ILCS 5/9-40. The Illinois legislature may eventually find that it would serve anticorruption

interests to place permanent contribution limitations on political parties, but the fact that the

legislature has not yet done so does not invalidate the reform already implemented.

Plaintiff also complains that the Acts regulatory scheme belies any government interest

in preventing corruption because it lifts contribution limitations foreveryone in two particular

instances: (1) where self-funded candidates expenditures exceed $250,000 in a state-wide race

or $100,000 in another race; and (2) where independent expenditures exceed $250,000 in a state-

wide race or $100,000 in another race, 10 ILCS 5/9-8.5(h) and (h-5). This is yet another example

of Plaintiffs improper claims that the Act should have restricted more speech. Both provisions

are premised on the legislatures determination on the effects of uncorrupted funds in a



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particular race. See Az. Free Enter. Clubs Freedom Club PAC v. Bennett, 131 S.Ct. 2806, 2826

(2011); Citizens United v. FEC, 130 S.Ct. 876, 909 (2010). What Plaintiff asserts as loopholes

are actually efforts to restrict as little speech as possible.2

The cases Plaintiff relies on do not support its under-inclusiveness claim because they do

not involve campaign finance contribution limits, and more importantly, they employ a strict

scrutiny analysis. SeePl.s Mem. at 12 (citing Rubin v. Coors Brewing Co., 514 U.S. 476, 489

(1995); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425 (1993)). Notably,

neither the Supreme Court nor the Seventh Circuit has ever applied an under-inclusive analysis

under the closely drawn standard. But logically, Buckleys intermediate scrutiny test cannot

require as tight of a fit between means and ends as strict scrutiny. Thus, even if this Court were

to find that the Acts contribution limits are under-inclusive in some respects, the Act may

nevertheless be upheld because it serves some anticorruption purpose as written. As the Acts

contribution limits are closely drawn to serve the governments important interest in the

prevention of corruption and the appearance of corruption, Plaintiffs First Amendment

challenge must fail.

C. Plaintiff Fails to Establish a Violation of the Equal Protection Clause.a. Closely drawn is the appropriate standard for this Court to apply.

Plaintiff erroneously asks this Court to apply strict scrutiny to its equal protection

challenge. Where an equal protection challenge implicates a First Amendment right, a court

should apply the scrutiny level that would apply if the same law were being challenged under the

First Amendment. SeeGreen Party of Ct. v. Garfield, 616 F.3d 213, 229 (2d Cir. 2010)(applies

Buckleys exacting scrutiny to equal protection challenge); Wagner v. FEC, No. 11-CV-1841,

2Plaintiffs claimthat contribution limits are obsolete in the wake ofCitizens United is plainly contrary toestablished law. SeePl.s Mem. at 13. The Supreme Court has explicitly ruled that candidate-specific contributionlimits survived its ruling in Citizens United.Az. Free Enter. Clubs Freedom Club PAC, 131 S.Ct. at 2827.



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2012 WL 1255145 at *11-12 (D.D.C. Apr. 16, 2012) (same) (citing Police Dept. of the City of

Chicago v. Mosley, 408 U.S. 92, 101 (1972) (applying scrutiny consistent with the First

Amendment to an equal protection case that would otherwise require rational basis scrutiny).

Indeed, if the Court were to apply strict scrutiny to equal protection challenges of

campaign contributions, it would lead to the anomalous result that a statutory provision could

survive closely drawn scrutiny under the First Amendment, but nevertheless be found to violate

equal protection guarantees because of its impingement upon the very same rights. Wagner,

2012 WL 1255145 at *11. Such an approach would result in every First Amendment challenge

being reframed as an equal protection challenge, when the substantive guarantee of the First

Amendment itself should be the strongest form of protection, not the weakest. Id. (citations

omitted). This is particularly alarming given that the Supreme Court has explicitly rejected strict

scrutiny for contribution limitsbeing challenged in the First Amendment context.Id.

b. Plaintiff fails to establish that political parties are similarly situated tonon-political parties.

In order to prove its equal protection claim, Plaintiff has the burden to establish that it is

similarly situated with political parties, and that in turn, Plaintiff is unjustifiably being treated

differently. Wagner, 2012 WL 1255145 at *13. In determining whether PACs are similarly

situated to parties, the Court should evaluate whether they are similar with respect to their

history of corruption[,] whether they have similar structures, whether they are subject to similar

forms of corruption, and whether there is factual evidence of their similarity. Id.; See also,Cal.

Med.Assn v. FEC, 453 U.S. 182, 201 (1981). Plaintiff alleges that Sections 5/9-8.5(a)-(d) of the

Act unconstitutionally favor political parties by exempting them from contribution limits that

apply to other similarly situated groups. Plaintiff appears to conclude that all speakers whose

contributions could even potentially be corrupting are similarly situated. In doing so, Plaintiff



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cites FEC v. Colorado Republican Federal Campaign Committee (Colorado II), but as

discussed below, takes that case entirely out of context. Other than this unsupported and

conclusory argument, Plaintiff fails to provide this Court with any evidence that it is similarly

situated with political parties, and this Court is left without an iota of information to make a

meaningful comparison.

For example, in Iowa Right to Life Committee, Inc. v. Tooker, the plaintiff challenged

Iowas election law under equal protection, claiming corporations were being subjected to

burdens that were not placed on other associations. 795 F.Supp.2d 852 (S.D. Iowa 2011). The

court entered summary judgment for the defendants because other than a conclusory statement,

the plaintiff provided no evidence that the groups were similarly situated and failed to identify

any relevant similarities between corporations and these other associations.Id. at 873. Thus, the

court determined that theplaintiffs general assertions were not sufficient to carry its burden on

this key element of its equal protection claim.Id. Similarly, Plaintiff has not met its threshold

burden here, instead presuming that all potentially corruptible groups are similarly situated

without discussion of structure, specific vulnerabilities to corruption, or other relevant factors.

See Wagner, 2012 WL 1255145 at *14 (upholding contributions ban that reflects a reasonable

legislative judgment that contracting is particularly susceptible to quid pro quo arrangements or

the appearance thereof and rejecting similarly situated argument.)

Political parties are far from similarly situated to non-party groups, particularly PACs.

The corruption that inspired the Act concerned pay-to-play politics pertaining to the enactment

of legislation favoring special interest groups, political appointments, and awarding of

government contracts for significant contributions, not corruption of political parties. Further,

special interest groups have an issue-driven agenda and seek to elect those who will advocate



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within the legislature on their behalf. Among the risks with special interest groups is that an

elected official will be more concerned with fulfilling the donors interests than that of his or her

constituents. Corporations and individuals carry a separate additional risk that their contributions

will result in government contracts and business following the election. Political parties, on the

other hand, are composed of candidates and officeholders. They facilitate primary elections and

nominate candidates. By virtue of their membership, candidates have already adopted the agenda

of their political party. As a result, regardless of the contributions they receive from the political

party, the candidate is already aligned with the positions of the party, and, consequently, the

contributions carry a significantly reduced appearance or reality of quid pro quo corruption. As

Representative Lang emphasized during legislative debates on the Act,

Well, Ladies and Gentlemen, political parties are not special interests. Weare all members of a political partyTo lump political parties with the kindof special interests that campaign finance laws were designed to control inthe first place is wrong-headed from the beginning, wrong-headed from thebeginning. Campaign finance laws are to protect us from those outside thischamber, not to protect us from those inside this chamber.

See 96th Ill. General Assemb., H.R. Deb., 81st Legis. Day, Oct. 29, 2009, at 178, Rep. Lang.

(Ex. C). Plaintiffs unsupported assertion that any group that is corruptible is similarly situated

runs afoul of the basic principles of equal protection. Accordingly, Illinois Liberty PAC fails to

meet its burden and demonstrate that it is similarly situated to political parties.3

Dissimilar

treatment of dissimilar groups does not violate equal protection. U.S. v. Whiton, 48 F.3d 356, 358

(8th Cir. 1995) (citations omitted).

3 Plaintiff then claims that even if parties and PACs are not similarly situated, the Act violates equal protectionbecause of its treatment of party expenditures versus independent expenditures. This argument is a red herring atbest. Plaintiff cannot claim that party expenditures are treated more favorably than independent expenditures or thatPACs are treated less favorably based on this distinction.



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c. Plaintiff has not demonstrated any likelihood of prevailing on its equalprotection claim.

In claiming that the Act unconstitutionally favors political parties, Plaintiff relies on only

two cases. Plaintiff first cites Colorado IIfor the proposition that political parties are similarly

situated to PACs because they, too, can be susceptible to corruption. Plaintiffs reliance is

misguided. In Colorado II, a political party brought a First Amendment facial challenge to

contribution limitations and argued that its role in the election process was so unique that it was

entitled to a more rigorous standard of scrutiny than the closely drawn standard. 533 U.S. 431.

In the instant case, Plaintiff relies upon apart of the Courts narrow holding that political parties

are not so unique that their speech is entitled to a standard all its own. The Court in Colorado II,

however, was not addressing an equal protection claim, and was certainly not assessing whether

parties are in fact similarly situated to any other group. In fact, the Court acknowledged that

parties were treated more favorably under the challenged statute because they were subject to

higher contribution limitations. Id. at 455. Two years later, in McConnell v. FEC, the Court

rejected an equal protection challenge by a political party concerning disparate treatment

between interest groups and parties, noting, Congress is fully entitled to consider the salient,

real-world differences between parties and interest groups when crafting a campaign finance

regulation system[.] 540 U.S. 93, 188 (2003), overruled on other grounds,Citizens United, 130

S.Ct. 876.

The second case Plaintiff relies upon is also distinguishable. The court in Russell v.

Burris held that a statute that differentiated between small donor and large donor PACs violated

the equal protection clause because it permitted small donor PACs to contribute up to $2,500,

while other PACs were limited to $1,000. 146 F.3d 563 (8th Cir. 1998). Notably, there was no

mention that the groups were not similarly situated. The Court rejected the defendants argument



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that the disparate treatment was permissible because small donor PACs could not be strongly

influenced by any one of its small contributors. Id. at 572. In rejecting this argument, the Court

focused not on the flow of money to the PAC, but the ways in which the PAC itself may try to

control the candidate with the contributions it makes.Id.

Even if this Court were to find that PACs are similarly situated to political parties, it

should defer to the legislatures conclusion that special interest groups like Illinois Liberty PAC

present a greater need to be regulated via contribution limitations while political parties are

sufficiently regulated by other means.4SeeOgnibene v. Parkes, 671 F.3d at 182 (The judiciary

owes special deference to legislative determinations regarding campaign contribution

restrictions.); Cal. Med.Assn, 453 U.S. at 201 (The differing restrictionsreflect a judgment

by Congress that these entities have differing structures and purposes, and that they therefore

may require different forms of regulation in order to protect the integrity of the electoral

process.);Bread PAC v. FEC, 635 F.2d 621, 630 (7th Cir. 1980), revd on other grounds, Natl

Right to Work Comm., Inc. v. FEC, 455 U.S. 577 (1982) (dissimilar treatment of...[various

organizations] follows from the rather obvious facts that each of the different groups has a

different structure and a different kind of constituency and that each requires somewhat different

regulations) (all citations omitted). The legislatures decision to treat political parties

differently from special interest groups in this context is far from revolutionary. At least seven

other states regulate political parties differently than PACs, and at least four do so by capping

PAC contributions while leaving party contributions unlimited.5

As noted in Colorado II and

4 Political parties are subject to the same organization, reporting, and disclosure requirements as PACs, are limitedin the number of political committees they can form, are required to retain financial records, and are subject toauditing by the Board.5 California, Louisiana, North Carolina and Vermont limit PAC candidate contributions while party candidate

contributions remain unlimited. See, CA GOVT 85300, et seq.; LSA-R.S. 18:1481, et seq.; N.C.G.S.A. 163-278.5, et seq.; 17 VSA 2801, et seq. (partially invalidated by Randall, 126 S.Ct. 2479). New York, New Jersey and



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McConnell, the federal campaign finance regulatory scheme has also made distinctions in how it

regulates political parties as compared with other groups. The legislature, not this Court, is the

appropriate governmental body to determine how to regulate campaign finance.

Plaintiff essentially asks that this Court level the playing field between itself and

political parties under the guise of an equal protection challenge. Illinois Liberty PAC makes

clear that,but for the Acts $50,000 limitation, it could make more substantial contributions that

could significantly impact an electoral race, much as political parties can impact a race with their

unlimited contributions. (Dckt. No. 8, 31). But that is the point. The Court should defer to the

legislatures determination that this interest is advanced by limiting non-parties direct

contributions (and impact) to any one candidate or party. Illinois Liberty PACs request turns

Equal Protection on its head. Accordingly, Plaintiffs equal protection claim should be rejected.

CONCLUSION

As set forth above, Plaintiffs request for injunctive relief should be denied because it has

no likelihood of success on the merits. The Act is closely drawn to serve the governments

sufficiently important interest in preventing quid pro quo corruption and the appearance thereof.

Plaintiffs challenges are unprecedented and lack any meaningful case support. Alternatively,

any relief in this case should be narrowly tailored to the parameters of this case and existing law.

Respectfully submitted,

/s/ Laura M. RawskiLISA MADIGAN Marni M. MalowitzIllinois Attorney General Laura M. Rawski

Assistant Attorneys GeneralGeneral Law Bureau100 West Randolph Street, 13

thFloor

Chicago, IL 60601(312) 814-3700/6534

Kansas all have models that treat PACs and political parties significantly differently when applying contributionlimits. See, NY ELEC 14-114, et seq.; N.J.S.A. 19:44A, et seq.; K.S.A. 25-4153, et seq.



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CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that the aforementioned document was filed onFriday, August 10, 2012, through the Courts CM/ECF system. Parties of record may obtain acopy of the paper through the Courts CM/ECF system.

/s/ Laura M. Rawski


defendant opposition memo: illinois liberty pac v. madigan et al

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