Cook County Record

IL Gives up Defending Likely Unconstitutional, Politically Motivated Limits on Judicial Campaign Contributions

May 19, 2023

(Cook County Record)—With a Democratic supermajority on the state Supreme Court now in place, potentially for decades to come, Illinois state officials have given up their efforts to defend a state law that critics said was unconstitutionally designed to restrict the flow of money to campaigns and committees to aid Republican judicial candidates, particularly for an election cycle that could have resulted in Republican control of the state high court.

On May 18, U.S. District Judge John J. Tharp Jr. entered an order placing a permanent injunction on the ability of the state to enforce the challenged state law.

The order came about seven months since the judge had entered a preliminary injunction blocking that law. In that ruling, Judge Tharp found the challengers were likely to prevail on their claims Gov. JB Pritzker and his Democratic allies in the Illinois General Assembly had trampled the First Amendment in enacting the law to stifle the speech and political effectiveness of their opponents.

Following that order, court documents indicate Illinois Attorney General Kwame Raoul, also a Democrat and noted ally of the governor, opted not to appeal, and ultimately agreed not to continue to defend the law in court. A motion filed on May 17 indicates that concession was made as part of a deal, in which the plaintiffs agreed not to force the state to pay their legal bills for being forced to sue over the law.

Enacted in 2021, the law would have forbidden people and organizations from outside Illinois from donating to campaigns or specific kinds of political committees designed to support judicial candidates.

Further, Democrats imposed a $500,000 limit on all donations to judicial campaigns.

The law was challenged in a lawsuit filed in federal court by attorney Jeffrey Schwab, of the Liberty Justice Center, of Chicago, on behalf of named plaintiffs Matthew Chancey, a lawyer and former Illinois resident; and two Illinois-based independent expenditure committees, Fair Courts America and Restoration PAC.

The lawsuit claimed the laws unconstitutionally infringed on the rights of people and organizations who may wish to participate in Illinois politics from using their money to speak, by donating to candidates they support.

At the time it was enacted, critics said the law was intended specifically to block donations from big donors outside Illinois from donating to the campaigns of Republican state Supreme Court candidates, seeking election in two new state Supreme Court districts mainly in Chicago’s suburbs. By blocking such donations, critics said the law was essentially designed to allow Democrats to dominate the money race in those state high court races.

Ultimately, those elections were won by Democrats Elizabeth Rochford and Mary K. O’Brien.

The Rochford and O’Brien campaigns were heavily boosted by support from prominent Illinois politicians, including Pritzker, a billionaire, who donated $1 million each to both candidates. The donations were divided into chunks of $500,000 each from Pritzker’s personal campaign committee and from a Pritzker trust, skirting the individual contribution limits he had signed into law.

Further, Rochford and O’Brien’s candidacy drew millions of dollars in support from a political committee established and funded extensively by trial lawyers and other Democratic donors, specifically to blanket Illinois voters with attack ads against the Republican candidates opposing Rochford and O’Brien. The campaign committee, known as All For Justice, was headed by trial lawyer Luke Casson, a political associate of Illinois State Sen. President Don Harmon, a Democrat, of Oak Park.

Harmon, like all other Democrats in the General Assembly, also supported the law limiting judicial campaign contributions.

The law came after voters in north central Illinois in 2020 rejected the retention campaign of former Democratic Illinois Supreme Court Justice Thomas Kilbride. After that loss, Democrats in charge in Springfield used their supermajority to redraw state judicial districts and change the rules on judicial campaign donations, to increase their odds of retaining partisan control of the state Supreme Court. Democrats have held that majority since at least 1970, when the state last rewrote its constitution.

In October 2022, Tharp said the judicial campaign funding limits don’t hold up under the First Amendment.

“… Illinois’ exclusive targeting of out-of-state contributions raises a serious red flag that it is actually animated by what prospective out-of-state contributors have to say – or the ideologies of the judges whom they may tend to support – rather than public confidence in its judiciary,” Tharp wrote in his October ruling.

“Whatever its intent, the ban on out-of-state contributions will likely be more effective in preserving the status quo of the state’s judiciary than in enhancing its appearance of integrity.”

Ultimately, Illinois Democrats won both election contests, and increased their majority on the Illinois Supreme Court to a 5-2 supermajority, at the same time the state high court was poised to consider challenges to other constitutionally questionable state laws, strongly supported by Pritzker and Democrats, including state laws abolishing cash bail and banning so-called “assault weapons.”