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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ILLINOIS LIBERTY PAC, a

Political Action Committee

registered with the Illinois

State Board of Elections,

EDGAR BACHRACH, and KYLE

McCARTER,

Plaintiffs,

-vsLISA M. MADIGAN, Attorney

General of the State of

Illinois; WILLIAM McGUFFAGE,

Chariman of the Illinois

State Board of Elections;

JESSE R. SMART,

Vice-Chairman of the

Illinois State Board of

Elections; HAROLD D. BYERS,

Member of the Illinois State

Board of Elections; BETTY J.

COFFRIN, Member of the

Illinois State Board of

Elections; ERNEST L. GOWEN,

Member of the Illinois State

Board of Elections; JUDITH

C. RICE, Member of the

Illinois State Board of

Elections; BRYAN A.

SCHNEIDER, Member of the

Illinois State Board of

Elections; and CHARLES W.

SCHOLZ, Member of the

Illinois State Board of

Elections, all in their

official capacities,

Defendants.

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Case No. 12 C 5811

Chicago, Illinois

January 25, 2016

9:30 a.m.

TRANSCRIPT OF PROCEEDINGS - Trial

BEFORE THE HONORABLE GARY FEINERMAN

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APPEARANCES:

For the Plaintiffs: LIBERTY JUSTICE CENTER

BY: MR. JACOB H. HUEBERT

MR. JEFFREY M. SCHWAB

MR. JAMES McQUAID

190 South LaSalle Street

Suite 1630

Chicago, Illinois 60654

(312) 263-7668

For the Defendants: ILLINOIS ATTORNEY GENERAL'S OFFICE

BY: MS. JESSICA M. SCHELLER

MR. KEVIN R. LOVELLETTE

MR. T. ANDREW HORVAT

100 West Randolph Street

13th Floor

Chicago, Illinois 60601

(312) 814-2098

Court Reporter:

CHARLES R. ZANDI, CSR, RPR, FCRR

Official Court Reporter

United States District Court

219 South Dearborn Street, Suite 2128

Chicago, Illinois 60604

Telephone: (312) 435-5387

email: Charles_zandi@ilnd.uscourts.gov

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(Proceedings heard in open court:)

THE CLERK: 12 C 5811, Illinois Liberty PAC versus

Madigan.

THE COURT: Good morning.

MR. HUEBERT: Good morning, your Honor.

THE COURT: So, who do we have at counsel table?

MR. HUEBERT: Jacob Huebert here with Jeffrey Schwab

and James McQuaid for the plaintiffs.

THE COURT: And for the defendant?

MS. SCHELLER: Good morning, your Honor. Assistant

Attorneys General Jessica Scheller, Kevin Lovellette and

Andrew Horvat on behalf of the State of Illinois defendants.

THE COURT: Good morning. Are both sides ready for

trial?

MR. HUEBERT: We are, your Honor.

MS. SCHELLER: The defendants are ready.

THE COURT: All right. So, is there anything we need

to discuss before we have opening statements?

MR. HUEBERT: Your Honor, I'd like to move for

judicial notice that Plaintiffs' Exhibits 2 through 5 are

authentic Illinois State Board of Election records.

THE COURT: Any objection to that?

MR. LOVELLETTE: Can we have one second just to look

at them, your Honor?

THE COURT: Sure.

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opening - plaintiffs

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MS. SCHELLER: Your Honor, one of our witnesses will

be able to testify as to the authenticity of these documents;

but in any event, if plaintiffs' counsel doesn't mind, if we

could wait until the lunch break so we could have him take a

look at them and see whether or not he would be willing to

authenticate them or if we could have them certified just to

remove any ambiguity over the documents.

THE COURT: Okay. Why don't you just act as if

they're fine, and then we'll dot the i's and cross the t's

later on.

MR. HUEBERT: That sounds good. Thank you, your

Honor.

THE COURT: All right. Anything else before we get

started?

MR. HUEBERT: That's all from the plaintiffs.

THE COURT: Okay. Defendants?

MS. SCHELLER: Nothing from the defendants.

THE COURT: Okay. Go ahead.

MR. HUEBERT: Thank you, your Honor. May it please

the Court. In 2009, the Illinois General Assembly passed an

act touted as campaign finance reform. One of the act's most

noticeable features was a scheme of campaign contribution

limits that limited the amounts that individuals and groups

can give to candidates for office in Illinois. It limited the

amount that individuals can give to $5,000. It limited the

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opening - plaintiffs

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amount that corporations, unions, and other associations can

give to $10,000. And it limited the amounts that political

action committees or PACs can give to $50,000.

In short, the act limited what everyone and every

group in Illinois can give to candidates except for the

state's political parties and its legislative leaders. The

act allowed those groups and those leaders to give unlimited

funds to the candidates they support in a general election,

and much greater funds than anyone else to the candidates they

support in a primary election.

The act allowed the legislative leaders to do this

through what it called legislative caucus committees. A

legislative caucus committee under the act is a special kind

of committee that can only be formed by the state's four

legislative leaders, the Speaker of the House, the Senate

President, the House Minority Leader and the Senate Minority

Leader, or by a group of 10 representatives or five senators.

The legislative caucus committees have another

strange feature. There's a rule that says that a candidate

can only accept contributions from one of them in any given

two-year election cycle.

So, what did Illinois' legislative leaders really do

when they enacted so-called campaign finance reform? They

gave themselves special committees that they could use to

direct unlimited funds or disproportionately large funds to

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opening - plaintiffs

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the candidates they support while restricting what everyone

else other than the political parties can give to the

candidates who they support. In other words, they tilted the

political playing field in a way that preserves and enhances

their own political power.

And that's why the plaintiffs are here today. The

plaintiffs include an individual who makes contributions to

candidates in Edgar Bachrach, a political action committee

called Illinois Liberty PAC run by a man named Matthew Besler,

and a candidate for office, State Senator Kyle McCarter.

Mr. Bachrach and Mr. Besler think that it's not fair

that they are limited in the amounts that they can give to

candidates while the legislative leaders are not limited or

face much higher limits in the amounts that they can give.

And Senator McCarter thinks that it's not fair that he's

limited in the amounts that he can accept from an individual

or a PAC while a candidate who has the support of a

legislative caucus committee can receive unlimited amounts or

disproportionately large amounts from the legislative leaders

who run those committees.

The First Amendment is on the plaintiffs' side. In

one of its most recent decisions on campaign finance,

McCutcheon versus FEC, the U.S. Supreme Court said that those

who govern should be the last people to decide who should

govern. And the court made clear when campaign contribution

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opening - plaintiffs

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limits are designed in a way to affect who governs, they

violate the constitution.

The Supreme Court has long held that limits on the

amounts that individuals or groups can contribute to

candidates impinge upon First Amendment rights. And the court

has said that the only governmental interest that is

potentially important enough to justify such a restriction on

First Amendment rights is the government's interest in

preventing quid pro quo corruption or the appearance of

quid pro quo corruption.

And the court has said that when an individual or

group challenges limits on campaign contributions, the

government bears the burden to prove that those limits are

constitutional. Specifically, the government bears the burden

to prove that the limits are narrowly tailored to serve the

government's interests in limiting corruption.

So, in this case, the question is whether Illinois'

limits on the plaintiffs are narrowly tailored to limit

corruption in light of the act's treatment of legislative

caucus committees. That is, the question is: Can the

limitation on the plaintiffs be narrowly considered to address

corruption when at the same time the act allows the

legislative leaders to give unlimited or disproportionately

large amounts to candidates?

And again, the defendants -- and the Supreme Court

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opening - plaintiffs

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has said that the government, to justify its limits, to meet

its burden, must provide evidence. So, in this case, the

defendants, to meet their burden, to show that these limits

are narrowly tailored must provide evidence. And this trial

will confirm that the defendants have no evidence to show that

these limits are narrowly tailored to address corruption. And

for that reason alone, the limits must be struck down.

The plaintiffs will present evidence to show that the

act's limits have impaired their ability to participate fully

in the democratic process. And although the plaintiffs don't

bear the burden of proof in this case, the plaintiffs will

also present evidence affirmatively showing that the acts are

not designed in a way that would limit corruption, but instead

are designed in a way that is -- preserves the legislative

leaders' power and actually enhances opportunities for

corruption.

Edgar Bachrach will testify that the limits have

impaired his ability to participate fully in the democratic

process.

Matthew Besler will testify that the limits affect

not only how much Illinois Liberty PAC gives to the candidates

it supports, but also which candidates Illinois Liberty PAC

financially supports.

And Senator McCarter will testify that the act's

limits have impaired his ability to raise funds for his

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opening - plaintiffs

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campaigns.

The plaintiffs will present testimony from an expert

witness, Dr. Marcus Osborn. Dr. Osborn is a political

scientist who studied the relationship between campaign

contributions, campaign finance restrictions, and interest

group influence.

Dr. Osborn will testify that the limits do not appear

to be designed to address corruption, but instead appear to be

designed to enhance the legislative leaders' power and, in so

doing, create new opportunities for corruption.

The defendants have maintained that the State is

justified in treating legislative caucus committees just like

other political party committees. The act defines legislative

committees as a type of political party committee, and so the

defendants have argued that really they're justified in just

treating them the same with respect to the limits.

But Dr. Osborn will explain that a legislative caucus

committee is not just like any other political party

committee. Dr. Osborn will testify that, in fact, a

legislative caucus committee more closely resembles a type of

PAC, and its potential for corruption through its

contributions is more like that of a PAC accordingly.

Dr. Osborn will explain that the legislative leaders'

ability to give unlimited or disproportionately large

contributions gives them a powerful tool that they can use to

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opening - plaintiffs

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make quid pro quo demands on the candidates they support.

He'll also explain that the rule that says that a candidate

can only accept contributions from one of these candidates in

a two-year election cycle enhances the leaders' leverage in

potentially making quid pro quo demands on legislators.

Common sense would tell a reasonable observer looking

at this from the outside that the state's legislative leaders

were not thinking about how to narrowly tailor these limits to

limit corruption or how to minimize burdens on anyone's First

Amendment rights when they just happened to create a scheme

that just happens to give themselves the ability to direct

unlimited or disproportionately large contributions while

restricting virtually everyone else, conveniently including

their political rivals.

Dr. Osborn's testimony will confirm that this common

sense conclusion is correct, and the defendants won't be able

to refute it, let alone meet their burden to show that the

act's limits are narrowly tailored to address corruption.

So, at the end of this trial, the plaintiffs will

respectfully ask this Court to find that the evidence does not

support the conclusion that the act's limits are narrowly

tailored to address corruption, and the plaintiffs will ask

the Court to strike down these limits which infringe the

plaintiffs' fundamental First Amendment right to engage in

political speech.

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opening - defendants

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THE COURT: Thank you. So, is your argument going to

be -- that's okay.

Is your argument going to be that the act's

under-inclusive nature, because it doesn't treat legislative

caucus committees like political action committees, undermines

or throws into doubt the purported justification for limiting

PAC speech through contributions and individual speech through

contributions?

MR. HUEBERT: That's correct, your Honor.

THE COURT: Okay. All right. Thank you.

Defendants.

MR. HORVAT: Good morning, your Honor.

THE COURT: Good morning.

MR. HORVAT: A famous American author once said,

"Get your facts first, and then distort them as you please."

But if Samuel Clemens were here today and were to read

Dr. Osborn's purported expert report, he would have the same

question that your Honor is going to have to ask himself at

the end of this trial, and that is: Where exactly are the

facts? Where are the facts to suggest, as plaintiffs claim,

that the act is unconstitutional because it is, in fact,

under-inclusive? In fact, are there any facts at all for the

plaintiff to distort?

And that is the issue in this case, your Honor.

You're being asked to declare a statute unconstitutional. You

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opening - defendants

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may only do so, as the Court is aware, based on the facts

presented. And this case is about just that, the inability of

the plaintiffs to present any facts to suggest that the act

is, in fact, under-inclusive.

As your Honor is well aware, we are no longer at the

stage where we are determining whether a claim has been made

or whether there is an issue of triable fact or whether

potentially somebody could win on the merits. This is the

merits phase, the prove-it phase. And the fact of the matter

is there are no facts to suggest that this act is

under-inclusive and, therefore, unconstitutional.

As your Honor just stated succinctly, it is the

plaintiffs' basis that legislative caucus committees are

similarly situated to the three plaintiffs, to an individual

recipient, an individual donor, and a PAC. And it is their

assertion that because they are similarly situated and that

legislative caucus committees, through this nefarious

activity, also engage in quid pro quo, that the respective

entities must be legislated or otherwise -- excuse me, your

Honor, otherwise regulated in the same manner.

But there will be no facts to suggest that, because

in order to prove, number one, that the act is

under-inclusive, they must show that the plaintiffs and the

legislative caucus committees are similarly situated. But the

facts of this trial will suggest that they are not.

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opening - defendants

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The facts will show that, number one, that they are,

in fact, different entities, the plaintiffs and legislative

caucus committees. The facts will show that they engage in

different activities for different purposes. The facts will

show that they, in fact, engage in different forms of speech.

But even if your Honor were to find during the course

of this trial that the plaintiffs and legislative caucus

committees are similar and, therefore, must be regulated in a

similar manner, there will not be any facts to suggest that

the complained-of conduct actually exists.

That is one of the key points of this trial, your

Honor. The plaintiffs claim that legislative leaders within

the legislature use legislative committees to entrench

themselves in power and that this gives rise to an appearance

of quid pro quo. But, if there are no facts to suggest that

that actually exists, there is no basis for the act to

regulate such conduct. In other words, your Honor, the act

need not regulate what does not exist.

In 2015, just in this past year, the Supreme Court,

in the case of Williams-Yulee versus the Florida Bar, stated

some very succinct language on this exact point, and I quote,

"Under-inclusivity creates a First Amendment concern when the

state regulates one aspect of a problem while declining to

regulate a different aspect of the problem that affects its

stated interest in a comparable way. But even under strict

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opening - defendants

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scrutiny, the First Amendment does not require states to

regulate for problems that do not exist."

Your Honor, this is the prove-it phase, and if there

are no facts to suggest that legislative caucus committees are

used by the members of the legislature to entrench themselves

in power, if there are no facts to suggest that the

legislative caucus committees are used in such a nefarious

manner, this Court cannot declare a statute unconstitutional

for failing to regulate what does not exist.

But there is one more point that plaintiffs will also

fail to bring forth any facts upon, and your Honor again in

his question to Mr. Huebert showed where this case is going.

As your Honor is well aware, the doctrine of

under-inclusiveness is concerned with the fact that the stated

purpose, in this case, quid pro quo, is actually pretextual.

It actually exists only, in fact, as subterfuge; in other

words, that it helps to regulate speech on the basis of

viewpoint, that it is not content-neutral.

Your Honor, there will be no facts brought before

this Court to suggest that the act as applied or across the

board regulates speech in a content-discriminatory manner,

and that is the concern of the under-inclusive doctrine.

Your Honor, this case was brought to you via an

accusation and a theory. In one hand, the plaintiffs pointed

the finger, and in the other, they trumpeted a report of

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opening - defendants

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Dr. Osborn. But at no time throughout this litigation has

either hand ever held a fact that supported either assertion;

and at the end of this case, nothing will change. There are

no facts to suggest that this statute is under-inclusive

because -- or excuse me, is unconstitutional because it is

under-inclusive. Because of that, at the end of the evidence,

we're going to ask that your Honor deny plaintiffs' requests,

find for the defendants across the board.

Thank you, your Honor.

THE COURT: Thank you. And if I could ask one

question of you. The plaintiffs say that the burden of proof

is on the defendants. Do you agree with that?

MR. HORVAT: Judge, the burden of proof would be on

the plaintiffs if this was an issue of Buckley, in other

words, the restrictions directly on the plaintiffs' speech.

It is the defendants' position that even if the burden is

still on the defense to prove that, in fact, it is not

under-inclusive, that they still have the burden of

persuasion. In other words, they still must bring facts

before this Court to establish its under-inclusivity.

So, although the initial burden may be on the

defendants to prove that, in fact, it is narrowly drawn, not

narrowly tailored, narrowly drawn, that's not where we're at

right now because we're not talking about the direct

restrictions on the plaintiffs' speech like in a Buckley

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opening - defendants

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matter. We're talking about whether somebody else's speech

should be similarly regulated; and, therefore, we believe that

plaintiffs have to bring forth facts to show that it is not.

THE COURT: Are you saying that the plaintiffs have

the burden of production with respect to evidence and that the

defendants have the burden of persuasion as to whether there's

an under-exclusivity problem?

MR. HORVAT: Judge, I believe so. I think the

plaintiffs will always have the burden of production to bring

forth evidence to suggest that the act is unconstitutional and

to overcome that significant presumption that, in fact, it is

constitutional.

THE COURT: But at the end of the day, in deciding

whether the act as drafted is under-inclusive, that's

something that the defendants have the burden on?

MR. HORVAT: Judge, I don't believe the defendants

have the burden on that, no. I believe --

THE COURT: Okay. So, what is the defendants'

burden, if any?

MR. HORVAT: Judge, the defendants' burden, to the

extent that it has a burden, is just to prove that the act's

not under-inclusive as the facts show it. It's not to prove

that it's narrowly drawn because that issue is no -- I

understand that the plaintiffs still believe that that issue

is an issue in the case, in other words, the limitations, 5,

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opening - defendants

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10, 50,000 under Buckley. And then I would agree with you

that it would be the burden of the plaintiff to show that it

is narrowly drawn. There's no question about that.

But that's not what we're dealing with here. We're

dealing with whether or not the act itself is under-inclusive.

And I believe that although ultimately the burden might well

be on the defendants to defend the constitutionality of the

act, that they still have the burden of production, if you

will, your Honor, to bring facts.

THE COURT: So, with respect to evidentiary facts,

the plaintiffs have the burden --

MR. HORVAT: I believe so, your Honor.

THE COURT: -- but with respect to the legal issue of

whether there's under-inclusivity, the defendants have the

burden?

MR. HORVAT: I believe so, your Honor.

THE COURT: Based on the factual predicate at trial?

MR. HORVAT: Correct, your Honor.

THE COURT: All right. Thank you.

MR. HORVAT: Thanks, your Honor.

THE COURT: So, are the plaintiffs ready to call

their first witness?

MR. HUEBERT: Yes, your Honor. The plaintiffs will

call Edgar Bachrach.

THE COURT: Please step up, Mr. Bachrach, and if you

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opening - defendants

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could step up and remain standing.

MS. SCHELLER: Your Honor, may I be briefly heard?

THE COURT: I'm sorry?

MS. SCHELLER: May I be briefly heard on an issue?

The defendants filed a motion in limine, to which the

plaintiffs agreed, to exclude all non-party testifying

witnesses during testimony. We would just like to ask that

any witnesses who will be testifying who are non-parties be

excused from the courtroom at this time, to the extent there

are any.

MR. HUEBERT: There are none, your Honor.

THE COURT: Okay.

MS. SCHELLER: Thank you.

THE COURT: Please raise your right hand. State your

name.

THE WITNESS: Edgar H. Bachrach.

(Witness sworn.)

THE WITNESS: I do, sir.

THE COURT: Okay. You've been sworn. You may be

seated. If you'd like to pour yourself a glass of water,

there's a pitcher and some cups right there. I don't think

there's any wheels on the bottom of the chair, so it's going

to be tough.

And with respect to the microphone, you don't have to

be right on top of it; but if you're speaking directionally

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Bachrach - direct

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towards the microphone in a moderate tone of voice, we should

be able to pick you up.

MR. HUEBERT: Thank you.

EDGAR HENRY BACHRACH, A PLAINTIFF HEREIN, DULY SWORN.

DIRECT EXAMINATION

BY MR. HUEBERT:

Q. Mr. Bachrach, can you please state your full name for the

record.

A. Edgar Henry Bachrach.

Q. Mr. Bachrach, what is your occupation?

A. Retired.

Q. What was your career before you were retired?

A. I owned and operated a chain of men's specialty clothing

stores.

Q. Have you ever made any contributions to candidates for

office in Illinois?

A. Yes.

Q. Did you make any contributions to candidates for state

office in the 2012 election cycle?

A. I believe that I did. I'm not sure.

MR. HUEBERT: Your Honor, may I approach the witness?

THE COURT: Sure. And are you going to be giving the

witness something?

MR. HUEBERT: Yes.

THE COURT: Would you mind just showing defense

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Bachrach - direct

20

counsel first.

BY MR. HUEBERT:

Q. Mr. Bachrach, I've handed you what's been marked as

Plaintiffs' Exhibit 4. Do you recognize this document?

A. Yes.

Q. What is it?

A. It appears to be a recap of all of the political

contributions that I have made in recent years.

Q. Could you please turn to page 4 of this document.

Do you see the third item from the bottom on this

page, where it says, "Individual Contributions, Citizens For

Babcock"?

A. Yes.

Q. Can you explain what that is?

A. This describes a contribution that I made to Citizens For

Babcock on August 29th, 2012.

Q. And what was the amount of that contribution?

A. $5,000.

Q. And is that correct? Did you contribute $5,000 to

Citizens For Babcock at that time?

A. Yes.

Q. What is Citizens For Babcock?

A. That is a campaign committee that was attempting to elect

Michael Babcock to the state senate.

Q. Did you make any other contributions to Citizens For

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Bachrach - direct

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Babcock during the 2012 general election?

A. No.

Q. Why not?

A. I was limited by state law.

Q. If there hadn't been a legal limit on your contributions,

would you have given Citizens For Babcock more than $5,000 in

the 2012 general election?

A. Yes.

Q. Can you please turn to the first page of Exhibit 4.

Do you see the item at the bottom of the first page

there where it says, "Individual Contribution, Illinois

Liberty PAC, Matthew Besler"?

A. Yes.

Q. Can you explain what that is?

A. This was a contribution that I made on February 18th of

2014 to the Illinois Liberty PAC for $10,500.

Q. And is that correct? Did you contribute $10,500 to

Illinois Liberty PAC at that time?

A. Yes, I did.

Q. Did you make any other contributions to Illinois Liberty

PAC during the 2014 election cycle?

A. No.

Q. Why not?

A. I was limited by state law.

Q. If there had not been a legal limit on your contributions,

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Bachrach - direct

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would you have given Illinois Liberty PAC more than $10,500 in

that election cycle?

A. Yes, I would have.

Q. In the current election cycle, would you like to give more

than the law allows to any candidate for state office in

Illinois?

A. Yes.

Q. Can you identify the candidate to whom you would like to

contribute more than the law currently allows?

A. Jeanne Ives.

Q. What office is she a candidate for?

A. State representative.

Q. If there were no limit on the amount that you could give

to Jeanne Ives in the current election cycle, how much would

you give?

A. $10,000.

Q. In the current election cycle, would you like to

contribute more than the law currently allows to any Illinois

political action committee?

A. Yes.

Q. Which one?

A. Illinois Liberty PAC.

Q. If there were no limit on the amount that you could give

to Illinois Liberty PAC in the current election cycle, how

much would you give?

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Bachrach - cross

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A. I can't say exactly, but it would be more than $10,500.

Q. Finally, Mr. Bachrach, can you please look at -- I'm

sorry. Strike that.

MR. HUEBERT: No further questions.

THE COURT: Okay. Thank you.

Anything from defendants?

MR. HORVAT: Briefly, your Honor.

CROSS-EXAMINATION

BY MR. HORVAT

Q. Good morning, Mr. Bachrach. Mr. Bachrach, my name is

Andrew Horvat, and I represent the defendants in this matter.

I have a few questions for you, but I should be fairly brief.

When you give a donation to a candidate or you are

anticipating giving a donation to a candidate, you do so

because of the issue that that candidate is trumpeting,

correct?

A. Yes.

Q. You do not do so because you're supporting any particular

party, is that correct?

A. That's correct.

Q. In other words, just so the record is clear, you're not

what would be referred to as maybe a straight ticket voter,

only voting for one party or the other, is that fair?

A. That's correct.

Q. And so when you donate to a particular candidate, you're

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Bachrach - cross

24

not intending to speak on behalf of any particular political

party, is that correct?

A. That's correct.

Q. You're speaking on behalf of Mr. Bachrach, correct?

A. Yes.

Q. Did I pronounce your last name correctly?

A. Close enough.

Q. Bachrach?

Now, these questions might sound interesting, but I

need to make the record. You as an individual donor are not

actually selecting slates of candidates to run for any

particular party, correct?

A. That's correct.

Q. And so in lieu of that answer, when you are speaking or

donating to a particular individual, you are not intending to

advocate on any particular slate of potential candidates,

correct?

A. That's correct.

Q. Now, as an individual donor, you do not determine who sits

on, for instance, legislative committees; would you agree with

that?

A. Yes.

Q. And so would you agree, then, that when you donate to

particular candidates, you're not intending through that

donation to advocate for who sits on any particular committee;

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Bachrach - cross

25

is that fair?

A. That's correct.

Q. And again, you don't determine who sits in the leadership

positions in either house of the Illinois legislature; is that

fair?

A. That's fair.

Q. And again, you can see where we're going with these

questions, but when you donate your money, when you make your

speech on behalf of a particular individual, you're not

advocating that any particular individual be designated to sit

on any congressional leadership positions, correct?

A. Correct.

THE COURT: Do you mean legislative?

MR. HORVAT: Yes. If I misspoke, my apologies, your

Honor.

BY MR. HORVAT:

Q. Now, Mr. Bachrach, as an individual donor, you are not,

shall we say, beholden to the electorate; you're not voted in

or out of office, is that fair?

A. Yes, sir.

Q. You're not answerable to the electorate if you vote

opposite of what some of them might think is their best

interests, correct?

A. Correct.

Q. Now, the limits on your ability to donate, those limits

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Bachrach - cross

26

are in place regardless of your political affiliation,

correct?

Did you not understand my question?

A. I didn't -- yes, I didn't.

Q. Okay. Let me back up for a second. You have no specific

political affiliation, correct? In other words, you don't

align yourself with one party or another, do you?

A. That's correct.

Q. And so if your limits are $5,000, that $5,000 limit would

be upon you regardless of whether you're affiliated with one

party or another or, as the case may be, that you're not

affiliated with any party; is that fair?

A. That's fair.

Q. And to the same extent, your donation would be limited

regardless of the recipient's political affiliation, is that

correct?

A. That's correct.

Q. And again, along the same lines, your donation yourself,

it would be limited across the board regardless of which issue

that you are advocating on behalf of when you give your money,

correct?

Yeah, I mumbled that. Let me try it one more time.

Okay?

Regardless of the issue that you are advocating on

behalf of when you give your money, regardless of the issue

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Bachrach - cross

27

that is supported by the candidate to whom you give that

money, the limits remain the same, correct?

A. Yes.

Q. Now, you joined this lawsuit -- do you recall when?

A. I don't recall. I believe it was sometime in the summer

of 2013.

Q. Okay. The second amended complaint in this case was filed

in May of 2013. Does that sound about right when you joined

this case?

A. I don't specifically recall.

Q. Okay. You agree with the proposition put forward by your

co-plaintiffs and counsel that the legislative caucus

committees are used by legislative leaders to entrench

themselves in power; is that my understanding?

A. Yes.

Q. But you have no factual support for that proposition,

that, in fact, the legislative leaders in Illinois use those

committees to entrench themselves in power, isn't that

correct?

THE COURT: And you mean Mr. Bachrach personally, and

not --

MR. HORVAT: Yes, yes.

THE COURT: -- other plaintiffs and counsel? Just

him personally.

BY MR. HORVAT:

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Bachrach - cross

28

Q. I should have made that clear, Mr. Bachrach. Do you

understand my question, sir?

A. Yes.

Q. Okay. Do you personally have any factual support for that

position that legislative leaders use these caucuses to

entrench themselves in power?

A. No.

Q. You did not have that at the time that the second amended

complaint was filed, correct?

A. That's correct.

Q. And almost a year later, when you gave your deposition,

you did not have any factual support for that proposition, is

that correct?

A. That's correct.

MR. HORVAT: Mr. Bachrach, I appreciate your time,

sir. Thank you very much.

THE COURT: Anything -- any redirect?

MR. HUEBERT: Nothing further, your Honor.

THE COURT: Okay. Thank you, Mr. Bachrach. You can

step down.

And you're a party, so you're welcome to stay for as

much or as little of the rest of the trial as you like.

THE WITNESS: Thank you, your Honor.

(Witness excused.)

THE COURT: And who is the plaintiffs' next witness?

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McCarter - direct

29

MR. HUEBERT: The plaintiffs will call Kyle McCarter.

THE COURT: Okay. Senator McCarter, if you could

please step up, raise your right hand, and state your name.

THE WITNESS: Kyle McCarter.

(Witness sworn.)

THE WITNESS: Yes, I do.

THE COURT: Okay. You've been sworn. You may be

seated. If you'd like to pour yourself a glass of water,

there's a pitcher and some cups.

KYLE McCARTER, A PLAINTIFF HEREIN, DULY SWORN.

DIRECT EXAMINATION

BY MR. HUEBERT:

Q. Senator McCarter, can you please state your name for the

record.

A. Kyle McCarter.

Q. Senator McCarter, do you currently hold an elected office?

A. Yes.

Q. What office do you hold?

A. State senator for the 54th District.

Q. How long have you held that office?

A. Almost two years.

Q. And how long have you been a state senator?

A. Almost six years.

Q. Did you have to originally run for election to the Senate?

A. No. I was appointed.

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McCarter - direct

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Q. Did you have to run for election after that?

A. I did. I had to run for -- be elected for the completion

of the term appointed, and then two other times after that.

Q. When were the next two elections?

A. 2012 and 2014.

Q. When you ran for election in 2010, did people contribute

money to your campaign?

A. Yes.

Q. When you ran for election in 2010, did political action

committees contribute money to your campaign?

A. Yes, I believe so.

Q. When you ran for election in 2012, did individuals

contribute to your campaign?

A. Yes.

Q. And when you ran in 2012, did political action committees

contribute to your campaign?

A. I believe so.

Q. And did both of those types of donors also contribute to

your 2014 campaign?

A. Yes.

Q. Do you have a campaign committee that receives the

contributions to your campaign?

A. I do.

Q. What's it called?

A. Citizens For Kyle McCarter.

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McCarter - direct

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Q. And what is your role in the Citizens For Kyle McCarter

committee?

A. I'm the chairman.

Q. Who makes decisions for Citizens For Kyle McCarter?

A. I do.

Q. Is it your understanding that the Illinois Election Code

has limited the amount your campaign committee can receive

from any individual in a given election cycle?

A. Yes.

Q. And is it your understanding the election code has limited

the amount your campaign committee can receive from any

political action committee in a given election cycle?

A. Yes.

Q. Has your campaign committee ever accepted any

contributions from individuals or political action committees

that exceeded the legal limits?

A. No.

Q. During your races for office, if the law allowed it, would

you have sought contributions for your campaign committee from

individuals that exceeded the legal limits?

A. Yes.

Q. And would you also have sought contributions from

political action committees that exceeded the legal limits?

A. Yes.

Q. If it were allowed?

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McCarter - direct

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A. If it were allowed, I would have.

Q. If it were legal, would your campaign committee currently

accept contributions from individuals in greater amounts than

the law allows?

A. Yes.

Q. If it were legal, would your campaign committee accept

contributions from political action committees in greater

amounts than the law currently allows?

A. Yes.

Q. Senator McCarter, do you play a role in any political

action committees that make contributions to candidates for

state offices in Illinois?

A. Yes.

Q. What political action committee is that?

A. It's the Common Sense Caucus PAC.

Q. What's your role in that PAC?

A. I'm the chairman.

Q. Who decides which candidates that PAC will give money to?

A. I do.

Q. Do you play a role in any other political action

committees that make contributions to candidates for state

office in Illinois?

A. No.

Q. Are you familiar with the term "legislative caucus

committee"?

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McCarter - direct

33

A. I am.

Q. And what is that?

MR. LOVELLETTE: Objection, your Honor. We had a

motion in limine that new information should be excluded.

During his deposition, Senator McCarter said he was not

familiar with them. If he's become familiar in the meantime,

we believe that should be excluded from this trial.

THE COURT: Overruled. Go ahead. You can give your

understanding.

BY THE WITNESS:

A. I understand. I was -- I understand what it is now. And

the -- I think the confusion on that was when I established

that as a PAC, that original Common Sense Caucus PAC, the

intention was for it to be a legislative caucus PAC, but then

it was made just a standard PAC.

BY MR. HUEBERT:

Q. And to be clear, what is a legislative caucus committee?

A. It's essentially a PAC made up of members.

Q. Can you give an example of a legislative caucus committee?

A. The SRO, Senate Republican Organization.

MR. HUEBERT: No further questions.

THE COURT: Thank you.

MR. LOVELLETTE: Can I have just a moment, your

Honor?

THE COURT: Sure.

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McCarter - cross

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MR. LOVELLETTE: Thank you.

THE COURT: And you're saying that the SRO is a

legislative caucus committee, or is it a PAC?

THE WITNESS: I believe it is.

THE COURT: And does that mean that there are five

senators who got together and formed it?

THE WITNESS: I don't know the difference between the

original -- I guess on the Republican side, what that is

versus the five members coming together.

THE COURT: Okay. Thank you.

THE WITNESS: I'm just telling you.

CROSS-EXAMINATION

BY MR. LOVELLETTE:

Q. Senator McCarter, we've never met before. My name is

Kevin Lovellette. I'm with the Attorney General's Office

representing the defendants in this lawsuit. I've got a few

questions for you, too. Okay?

If constituents in a senatorial district in Illinois

don't like their Illinois senator's voting record or are

otherwise dissatisfied with the senator, they can vote him or

her out of office, is that correct?

A. That's correct.

Q. And the entities that a candidate or candidate's committee

for senator that they accept money from is a matter of public

record; is that your understanding?

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McCarter - cross

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A. Yes.

THE COURT: Would you mind positioning yourself or

the microphone just a little bit closer?

MR. LOVELLETTE: Closer? Sure.

THE COURT: Thank you.

MR. LOVELLETTE: I usually speak too loud.

THE COURT: No, that's not going to be a problem

here.

BY MR. LOVELLETTE:

Q. Okay. If constituents don't like who a candidate or who a

senator is accepting money from, they can vote the senator out

of office, is that right?

A. Yes.

Q. And this would apply to you as a senator?

A. Of course.

Q. I don't like bringing this specter up, but I have to ask

the question. If you were ever voted out of office, you would

still be associated with your PAC, is that correct?

A. I could.

Q. The voters can't vote you out of your PAC?

A. That's correct.

Q. Are you aware if under Illinois law there is anything

called a legislative caucus PAC?

A. Please clarify that.

Q. Sure. I am just asking if you were aware under Illinois

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McCarter - cross

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law if there's anything titled a legislative caucus PAC?

A. Yes, there is.

Q. What is that?

A. It's my understanding that that's a PAC made up of

members.

Q. Members of --

A. Members of the legislature.

Q. Who is the -- if you know, who is the current Minority

Leader of the Illinois House of Representatives?

A. Christine Radogno.

THE COURT: Is she the Senate Minority Leader?

THE WITNESS: She's the Senate.

BY MR. LOVELLETTE:

Q. She's the Senate. I'm asking --

A. I'm assuming you were talking about the Senate.

Q. I actually -- yeah, that was my next question. I should

have started with the Senate. I apologize.

Senator Radogno is the Minority Leader of the Senate,

is that correct?

A. That is correct.

Q. Do you know who the current Minority Leader of the House

is?

A. Of the House? I would think that would be Representative

Durkin.

Q. Is that James Durkin?

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McCarter - cross

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A. Yes.

Q. Thank you. Are you aware of how the Senate Minority

Leader is chosen?

A. Yes.

Q. Will you briefly describe the way that that happens.

A. That is a vote of the members closely following the

completion of the election.

Q. Is that all members of the Senate that vote on the

Minority Leader, or is it the members of the caucus?

A. All members of the caucus.

Q. Have you participated in that process?

A. Yes.

Q. And you voted for the person that you voted for because

they would be the best leader for your party; is that fair to

say?

A. Each time, yes.

Q. And you voted for them because they gave your party the

best opportunity to expand in the Senate; is that fair?

A. I voted for the best leader at the time.

Q. You did not vote for them because they gave you money?

A. No.

Q. At the time you first became involved in this lawsuit --

THE COURT: And by gave money, you mean made a

contribution to Senator McCarter's campaign from the

legislative caucus committee?

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McCarter - cross

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MR. LOVELLETTE: That's exactly what I meant.

BY MR. LOVELLETTE:

Q. I'm sorry. That's what I meant. Is that the way you

understood the question?

A. I always vote for who I think is the best leader, whether

they gave me money or not.

Q. Okay. Thank you.

THE COURT: And by give you money, you don't mean in

an envelope, obviously.

THE WITNESS: No. Whether they contribute to my

campaign.

THE COURT: Okay. I just want -- for your sake, I

wanted to make that clear.

BY MR. LOVELLETTE:

Q. Burlap bag with a dollar sign on it, is that more

preferable? I'm joking. I'm sorry, Senator.

At the time that you first became involved in this

lawsuit, you didn't have any knowledge that your -- any of

your fellow senators voted for a minority leader to be the

leader because they had donated to their campaigns, is that

correct?

A. Clarify that.

Q. Sure. At the time you became involved in this lawsuit,

you didn't have any knowledge that one of your fellow senators

voted for a minority leader because that individual had

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McCarter - cross

39

donated to their campaign, is that correct?

A. I don't know why they voted for the leader. I have no

idea.

Q. Would it be fair to say that you can't judge their

intentions?

A. I don't know. I just don't know.

Q. Would it also be fair to say that you don't know, you

can't judge the intentions of legislative caucus committees

and why they donate to the causes or individuals that they

donate to?

A. Well, I have -- I believe I have some understanding why

they give to who they give.

Q. So, you understand why -- what their intentions are?

A. Based on -- personally, based on whether they would give

to me.

Q. So, their intent --

A. I can't Judge others' intentions, but I can say to myself

if I'm in a position of not agreeing with leadership, they are

most likely not going to give to me.

Q. And that's your assumption, is that correct?

A. That's my belief.

Q. But the flip side of the same coin, you don't know exactly

why they did or didn't give you money, is that correct?

A. It's my belief that because I at times disagree with the

leadership and the direction of the caucus, I am not given

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McCarter - cross

40

contributions.

Q. By whom?

A. By the leader of that caucus and the chairman of that

legislative caucus.

Q. Through what mechanism? Through a PAC? Through --

A. Well, I'm referring to the Senate Republican Organization

and the minority leader that you asked me who it was, and

that's -- that's specifically what I'm talking about.

Q. So, it's your belief that if you don't follow, that you

won't receive any money?

A. Yes, it is.

Q. And do you have evidence that contributions of the SRO has

followed your belief?

A. There's probably evidence that they didn't give me money.

Q. The question was, do you have any evidence to support your

belief that SRO did not give you money because you didn't

follow them?

A. I believe the evidence would be based on whether they gave

me money or not.

Q. I understand your belief, Senator. I'm asking if you have

any evidence that supports your belief that the SRO did not

give you money because you did not follow them.

A. I think if you -- if you looked originally where they gave

me money, and then when I spoke out against the leadership and

they didn't give me money, that would be evidence.

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McCarter - cross

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Q. I understand. I'm asking if you have any evidence as you

sit here today --

THE COURT: I think what you're asking him is: Has

anybody told you, "By the way, the reason we're not giving you

money is because you went against us on these particular

issues"? Is that your question?

MR. LOVELLETTE: I didn't want to get into hearsay,

though, your Honor.

THE COURT: That wouldn't be hearsay. That would

be --

MR. LOVELLETTE: Oh, you're right. You're right.

Could the court reporter repeat that question, your Honor?

THE WITNESS: I heard it.

THE COURT: Yes.

BY THE WITNESS:

A. No.

THE COURT: No one's ever told you that?

THE WITNESS: I have not heard that statement from

anyone.

THE COURT: But from the timing, you got

contributions at one point and then you opposed and you didn't

get contributions, you're making an inference of a causal

relationship?

THE WITNESS: Yes, I am.

THE COURT: Does that answer your question?

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McCarter - cross

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MR. LOVELLETTE: That does. Thank you.

BY MR. LOVELLETTE:

Q. Senator, are you aware of any specific instances in which

legislative leaders have used organizational rewards and

punishments through their legislative caucus committees?

A. Yes.

Q. Senator, do you remember sitting for -- I believe this was

your first deposition in this case on June 3rd, 2014?

A. Yes.

Q. And your attorneys were there?

A. Correct.

Q. And there was a court reporter there taking down all the

information?

A. Correct.

Q. And you were sworn to tell the truth?

A. Yes.

Q. Do you remember being asked --

MR. LOVELLETTE: I'm sorry. For counsel, it is

page 50, starting at line 3.

BY MR. LOVELLETTE:

Q. Do you remember being asked this question and giving this

answer?

"Question: Are you aware of any specific instances

in which legislative leaders have used organizational rewards

and punishments through their legislative caucus committees?

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"Answer: I can't judge the intention of their

actions."

Do you remember that question and answer?

A. Yes.

Q. Okay. Thank you.

At the time of your deposition, it was your

understanding that the House Republican Leadership

Organization was the main campaign arm of the Republican Party

in the House, is that correct?

A. Yes.

Q. And again at the time of your deposition, it was your

understanding that the Republican State Senate Campaign was

the campaign arm of the Republican Party in the Illinois

Senate, is that correct?

A. Yes.

MR. LOVELLETTE: May I have just a moment, your

Honor?

May I have a moment?

THE COURT: Sure. Go ahead.

MR. LOVELLETTE: Thank you.

A few more questions, your Honor. Thank you.

BY MR. LOVELLETTE:

Q. You mentioned before that you wanted to set up the Common

Sense PAC, is that correct?

A. Yes.

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Q. Did you want to set this up as a PAC, or did you want to

set it up as a legislative caucus committee?

A. Originally, I wanted to set it up as a legislative caucus.

Q. But you were unable to persuade four other senators from

your caucus to join, is that correct?

A. That could not be put together.

Q. I'm sorry. What could --

A. We could not meet the qualifications.

Q. In order to form the Common Sense legislative caucus,

right?

A. Correct.

Q. Because there was not five senators from the same caucus,

is that correct?

A. Well, there was numerous reasons.

Q. Was one of the reasons because there wasn't five senators

from the same caucus?

A. They didn't believe it was the right thing to do.

Q. Was one of the reasons because there wasn't five senators

from the same caucus?

A. I'm not saying there couldn't have been.

Q. I'm asking --

A. So, I'm telling you that wasn't the main reason.

Q. I'm not asking about the main reason.

A. I know what you want me to say, it's the main reason. It

wasn't the main reason.

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Q. I'm not asking the main reason. Was one of the reasons

because there wasn't five members of the same caucus that

would join Common Sense?

A. No. I believe I perhaps could have gotten five members.

Q. But you didn't?

A. I didn't file it that way.

Q. I'm sorry. You didn't --

A. I didn't file it as that caucus. I didn't file as that

caucus. I filed as a regular PAC.

Q. Because there were not five members -- and one of the

reasons was there wasn't five members of the same caucus that

would sign on to that, is that correct?

A. No. I chose not to form it as a legislative caucus.

MR. LOVELLETTE: Thank you.

THE COURT: So, when -- you testified that at some

point, you got contributions from the leadership, then you

started opposing the leadership on certain issues, and then

you stopped getting contributions from the leadership.

After you started opposing the leadership on certain

issues, did the leadership ever fund an opponent to your

candidacy in the primary?

THE WITNESS: I believe so. And, your Honor, it was

more than just differing on opinions. I actually ran for

leadership in 2012.

THE COURT: Okay. And then -- and that's -- was that

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McCarter - cross

46

the breaking point where they stopped giving you

contributions?

THE WITNESS: Yes, yes. I mean, it was -- I think it

had started a little before that, but primarily, yes.

THE COURT: And after you bucked the leadership, did

the leadership start funding a primary opponent against you?

THE WITNESS: I don't have proof that they put a

sitting senator against me, but he did file against me, and --

in the 2014 race. I mean, I don't have -- I'm not privy to

all of those conversations that went into that. It was a

redistricting year, and I was in the same senate district as

the sitting senator, so there was a lot of movement. I don't

have evidence of that.

THE COURT: So, you were redistricted into -- the

redistricting caused you and another sitting senator to be in

the same senate district?

THE WITNESS: Yes, sir.

THE COURT: Okay. And you both ran in the primary?

THE WITNESS: Yes, sir.

THE COURT: And you prevailed?

THE WITNESS: Well, no, actually, he never ran.

THE COURT: He filed, but didn't run?

THE WITNESS: He filed, and then he was -- he

withdrew his nomination papers because of issues.

THE COURT: I see. Okay. Thank you.

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Any redirect based on either defendants' questions or

my questions?

MR. HUEBERT: No, your Honor.

THE COURT: Okay. Do you have anything based on my

questions?

MS. SCHELLER: We may have one question, your Honor.

THE COURT: Okay. Go ahead.

CROSS-EXAMINATION

BY MR. LOVELLETTE:

Q. Senator, I want to make sure that the record's clear. You

have not presented any evidence through the course of your

testimony either in the deposition or here, as far as you can

remember, that a legislative caucus committee gave money to an

electoral foe of yours because you, as the judge said, bucked

the leadership, is that correct?

MR. HUEBERT: Objection. The evidence in the record

is what it is. It's not necessarily for Senator McCarter to

opine on what conclusions it leads to.

THE COURT: I'm going to sustain the objection as to

the form. Why don't you just, instead of asking him, "Have

you presented any evidence," say, "Has it happened?"

BY MR. LOVELLETTE:

Q. Has it happened?

A. Has what happened?

Q. Has it happened that since you bucked the legislative

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McCarter - cross

48

leaders, as you've -- the judge said earlier, you know that

the legislative caucus committee has given money and helped to

fund an electoral foe of yours?

A. I think if you look at -- I think you'd have to look at

Senator Jones' records as to whether he was given money. I

don't know that. He may have been. I don't know that.

Q. Okay. Thank you.

THE COURT: Actually, I have a follow-up.

THE WITNESS: Yes, sir.

THE COURT: Do you know -- putting your own

experience aside, are you aware of any of your Senate

Republican colleagues who opposed the leadership in some way

and then had the leadership fund primary opponents of those

members?

THE WITNESS: No, sir, I don't. I -- this is not

always in the form of funding campaigns. I mean, there are

repercussions as slight as not being able to sit where you

want to sit, take the office you want to get, the parking

place you're put at. I mean, there are repercussions to this.

As far as whether the money was intended to go

against me or someone else, I don't know that, sir.

THE COURT: Okay. There are repercussions, but so

far as you know, those repercussions don't include

contributions from a legislative caucus committee to a primary

opponent of a member who opposed the leadership in certain

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McCarter - cross

49

ways?

THE WITNESS: You may see that money went to Senator

Jones but it didn't go to me. I can't connect those two, but

you probably could see that.

THE COURT: Okay. How about out -- other than you,

how about any of your colleagues who opposed the leadership?

Do you believe that anything like that has happened to them?

THE WITNESS: I would have to look, and I really

haven't looked.

THE COURT: How about on the -- your friends from

across the aisle? Are you aware of anything like that

happening with Democratic members of the Senate who opposed

President Cullerton.

THE WITNESS: I've got enough problems of my own. I

don't even look toward the other side to see what they do. I

really don't.

THE COURT: Okay. Thank you.

Anything based -- I just kind of added some

questions, and the defendants asked a question. Do you have

anything -- any redirect based on the most recent questions?

MR. HUEBERT: No, thank you, your Honor.

THE COURT: Do you have any questions based on my

most recent questions?

MR. LOVELLETTE: No, your Honor.

THE COURT: Okay. Thank you, Senator McCarter. You

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Besler - direct

50

can step down. And you're a party, so the exclusion rule

doesn't apply to you, so you're welcome to stay for as much or

as little of the trial as you'd like.

(Witness excused.)

THE COURT: And who is the plaintiffs' next witness?

MR. HUEBERT: Matthew Besler, your Honor.

THE COURT: If you could raise your right hand, state

your name.

THE WITNESS: Matthew Besler.

(Witness sworn.)

THE WITNESS: Yes, your Honor.

THE COURT: You've been sworn. You may be seated.

If you'd like to pour yourself a glass of water, there's a

pitcher and some cups.

THE WITNESS: Thank you.

THE COURT: And you heard what I said about the

microphone, right?

THE WITNESS: Yes, thanks.

THE COURT: Good.

MATTHEW ALLEN BESLER, PLAINTIFFS' HEREIN, DULY SWORN.

DIRECT EXAMINATION

BY MR. HUEBERT:

Q. Mr. Besler, can you please state your full name for the

record.

A. Sure. It's Matthew Allen Besler.

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Besler - direct

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Q. Mr. Besler, do you play a role in any political action

committees that participate in elections for state offices in

Illinois?

A. Yes.

Q. What political action committees do you have a role in?

A. The Illinois Liberty PAC.

Q. And is Illinois Liberty PAC registered as a political

action committee with the Illinois State Board of Elections?

A. Yes.

Q. And what is your role with Illinois Liberty PAC?

A. I serve as the chairman.

Q. How long have you been chairman of Illinois Liberty PAC?

A. I believe since 2012.

Q. What are your responsibilities in your role as chairman of

Illinois Liberty PAC?

A. To support candidates that support and align with us on

free market principles.

Q. And when you say support, what do you mean?

A. Provide financial contributions in legislative House and

Senate districts.

Q. Does Illinois Liberty PAC do anything else to support

candidates?

A. We might do some material support, in other words,

education on -- or briefings on policy.

Q. Who decides which candidates Illinois Liberty PAC will

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Besler - direct

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support?

A. I do.

Q. Are you the only person responsible for those decisions?

A. Yes.

Q. Has that been true for the entire time you've been

chairman of Illinois Liberty PAC?

A. Yes.

Q. Does the Illinois Election Code currently limit the amount

that a political action committee can give to a candidate in a

given election cycle?

A. Yes.

Q. What is the current limit on the amount that a political

action committee can give to a candidate in a given election

cycle?

A. For Liberty PAC, it's 21,000.

Q. The amount --

A. Liberty PAC can give -- are you asking what Liberty PAC

can give to a candidate?

Q. To a candidate in a given election cycle.

A. Liberty PAC can give 21,000 to a candidate, Liberty PAC.

Q. Are you familiar with the term "legislative caucus

committee"?

A. Yes.

Q. What does that term mean to you?

A. In the House and the Senate chambers of the General

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Besler - direct

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Assembly, there's four leaders. Each leader runs a political

committee, political PAC, committee PAC. There's the Senate

President, Cullerton. There's the Senate Minority Leader, and

then there's the House Minority Leader, and then there's the

Speaker of the House. They each have campaign committees that

they run.

Q. Do you know whether the law places any limits on the

amounts that a legislative caucus committee can give to a

candidate in an election cycle?

A. Yeah, there's no amounts in the general election. There's

limits in the primary election.

Q. Do you know what those limits are?

A. For the Senate, it's 130,900, and for the House, it's

80,900.

MR. HUEBERT: Your Honor, may I have a moment?

THE COURT: Sure.

BY MR. HUEBERT:

Q. Mr. Besler, is it possible you're confusing the limit on

what Illinois Liberty PAC gives to candidates to what others

can give to candidates?

A. Yes, that's correct.

Q. Can you clarify how much Illinois Liberty PAC can give to

the candidates?

A. Sure, it's 52,900.

Q. Does Illinois Liberty PAC ever support candidates who are

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running against a candidate who receives support from a

legislative caucus committee in a primary election?

A. I'm sorry. Can you say that again?

Q. Does Illinois Liberty PAC ever support candidates who are

running against a candidate who receives support from a

legislative caucus committee in a primary election?

A. Yes.

Q. Does Illinois Liberty PAC ever support candidates who are

running against a candidate who receives support from a

legislative caucus committee in a general election?

A. Yes.

Q. As chairman of Illinois Liberty PAC, do you want to give

contributions to candidates for state office in Illinois that

exceed the current legal limits?

A. Yes. As we get into a campaign or are looking to support

a candidate, Liberty PAC is capped on what we can give,

especially in a general election, where the legislative caucus

committees are not capped. So, we can only spend a certain

amount right out of the gate, but they can spend any amount.

In the primaries, we can only spend 53,900, where

they can spend more. In the House, they can spend up to

$80,000. So, in races that have -- that are, let's say, a

media market where the caucus committees can buy hundreds of

thousands of dollars of TV advertising for a candidate, we can

only spend -- Liberty PAC can only spend $53,000 on that race

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Besler - direct

55

and then we're done, so we're completely hampered by that.

Q. Can you identify any specific candidates to whom Illinois

Liberty PAC currently wants to give contributions that would

exceed the legal limit?

A. Sure. We could start with Jeanne Ives, or we can go to

candidates that are currently running right now, like Dan

McConchie in the Senate.

Q. Do the limits on political action committees'

contributions to candidates affect the strategies that

Illinois Liberty PAC pursues with its contributions?

A. Yes. You know, we're limited with funds that we raise,

and it changes the way that we raise money. But if I see that

a race is very close and that additional TV buys or additional

dollars might help that candidate that I want to be able to

provide them, right now, if I hit my limit, I'm capped. I

can't do any more. So, I have to strategically look at the

dollars I have currently on hand to where I can provide the

most support where I think I'm going to get the biggest bang

for my dollar.

Q. Do the limits on political action committees'

contributions to candidates affect which candidates Illinois

Liberty PAC will provide the financial support?

A. Yes.

Q. How so?

A. So, for instance, if you have a candidate that is running

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for office that has not generated a lot of dollars or support,

putting 5 to $10,000 to them versus putting more to another

race that might be more beneficial, like, say, a media race or

something like that, then I have to make those decisions as

early as I possibly can so I can spend our money wisely.

Q. So, if there were no limits on how much Illinois Liberty

PAC could give to candidates, would that change your

contribution strategies?

A. Yes.

Q. And how so?

A. So, if I -- if there's a candidate that is maybe in a

large media market or is very close that I feel that more

dollars can help support that candidate for office, then I

would use those dollars effectively.

MR. HUEBERT: Thank you. That's all I have.

THE COURT: Okay. Thank you.

Defendants?

CROSS-EXAMINATION

BY MR. HORVAT:

Q. Good morning, Mr. Besler. Mr. Besler, I'm not sure if you

were in the room earlier when I spoke to Mr. Bachrach, but my

name is Andrew Horvat, and I represent the defendants. I have

just a few questions for you.

You indicated that Illinois Liberty PAC is a PAC that

supports free market principles; is that fair?

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A. That's correct.

Q. Now, as a PAC that supports free market principles, are

you aligned with any particular party?

A. No.

Q. You would support -- if you believed a candidate -- strike

that.

If you believed a candidate was sufficiently

supporting the interests that your PAC is interested in, you

would support them regardless of party affiliation?

A. Yes.

Q. Mr. Huebert asked you about the limitations on your

donations. Donations are not the only activity, political

activity that Illinois Liberty PAC engages in, is that

correct?

A. That's correct.

Q. You also do consulting -- and by you, I mean Liberty PAC

also does consulting work, is that correct?

A. We provide policy briefings. If we see a briefing or

something that talks about a free market principle policy, we

might send that on to legislative candidates.

Q. Would that be consulting?

A. That's -- in my definition, I guess it would be.

THE COURT: Would you mind aligning yourself --

MR. HORVAT: Yes, sir. My apologies.

THE COURT: That's okay.

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BY MR. HORVAT:

Q. You also engage in fundraising, correct, outside of what

Liberty PAC might also take in, is that -- in other words,

you'll help candidates raise funds, is that correct?

A. We will help -- we'll support the candidate any way we

can, and if that means raise funds, then we'll do that. We'll

help them.

Q. Can you also go out and, for instance, put forth flyers

for a candidate's election if you wanted to?

A. We can do mails, yes, that's correct, in-kind

contributions, so we can do a mail into a district that would

help support that candidate. That mailing is also a part of

the cap, so if we do that in-kind contribution, then, yes,

that goes to that 53.

Q. What about, say, for instance, electronic media, TV ads

and things of this nature?

A. Yeah. I believe anything that we are going to do for the

candidate, we are capped. If we're spending money on behalf

of the candidate, that money is against that cap.

Q. Well, I'm not asking particularly about a candidate, but

just to engage or just to advocate for free market principles,

you can put forth TV ads, put forth other manners of advocacy,

if you will, to support the principles that Liberty PAC

supports, correct?

A. I suppose we could. I mean, the main mission of Liberty

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PAC is to support candidates directly.

Q. But you're not aware of any limitations on your ability to

do those things that we just discussed, correct?

A. As long as it's not -- it's my understanding that as long

as it's not benefiting the candidate as -- so it wouldn't go

against that cap, then, yes, we could do that.

Q. And just so the record is clear, when you say benefiting

the candidate, you mean directly going into, shall we say, the

coffers of the candidate?

A. Correct, correct. Or even mentioning the candidate,

"Go vote for this person," that would be something. But we

don't do that, so I'm not that familiar with it.

Q. And similar to what I asked Mr. Bachrach, you're not, for

instance, a straight line party supporter, correct? We

established that you would give donations to either party

depending on their principles?

A. Correct, right.

Q. So, when you speak with your money, you're not advocating

for any political party, correct?

A. That's correct.

Q. You are only advocating for the interests that your PAC

determines are most pressing, for lack of a better word?

A. Correct.

Q. Now, similar to what I asked Mr. Bachrach, just so the

record is clear, as a PAC, you do not, for instance, select

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60

slates of candidates, correct?

A. Correct.

Q. So, when you speak with your money, you are not advocating

on behalf of any particular slate of candidates, is that

correct?

A. Correct.

Q. Again, you do not determine who sits on legislative

committees, is that correct?

A. Correct.

Q. And again, when you give money, you are not advocating on

behalf of who should sit on any particular legislative

committee, correct?

A. Correct.

Q. And along those same lines, you do not determine who sits

in legislative leadership positions, correct?

A. Correct.

Q. And, therefore, once again, when you give your money, when

you speak, you are not advocating on who should be in any

particular legislative leadership position?

A. Correct.

Q. As a PAC, you are not beholden to any particular

electorate, correct?

A. No.

Q. Nobody can vote you in or out of office, right?

A. Correct.

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Q. Now, the limitations that you discussed with Mr. Huebert,

those limitations remain constant despite the issue you

advocate for, correct?

A. Correct.

Q. And they remain constant despite the issue that the

recipient of your donation advocates for, correct?

A. Correct. You mean the money that they can receive?

Q. Yes.

A. Yes, correct.

Q. And so, for instance, the limits that are on Illinois

Liberty PAC would apply regardless of whether you are giving a

donation to a candidate who is expounding free market

principles or one who is expounding socialism, correct?

A. There's limits on what we can give candidates, correct.

Q. Sure. And it's regardless of the interest that is put

forth by the candidate, correct?

A. Correct. Like in the general election, there are no

limits for the other side, for campaign committees. There are

for us.

Q. I understand. And I'm just speaking of you, just so you

and I are clear.

A. Okay.

Q. The limits are the same regardless of the viewpoint of

either the donor or the donee, correct?

A. Correct.

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Q. Now, Liberty PAC was formed to support the candidates who

support free market principles, correct?

A. Correct.

Q. It was not formed to elect members to the General

Assembly, correct?

A. By members, do you mean sitting legislators, or do you

mean members by -- so, Liberty PAC supports individuals that

are running for office, for legislative office. So, if that's

considered a member --

Q. Right. That was a misnomer. I shouldn't have used

members.

In other words, you are not -- Liberty PAC was not

formed to design -- or designed to elect candidates to office

on the whole, correct?

A. We are -- I'm confused by your question.

Q. Sure.

A. We are -- we -- our mission is to support candidates for

legislative office.

Q. Particular candidates, correct?

A. Correct, particular candidates.

Q. Not slates of candidates from the Republican Party or

slates of candidates from the Democratic Party, correct?

A. Correct. But I'm confused on what you're calling a slate.

Q. Well, it goes back to my initial questions. Liberty PAC

is not party affiliated, correct?

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A. Correct.

Q. So, it's not the point of Liberty PAC to pack the

legislature with as many Republicans or Democrats as possible,

correct?

A. That's correct.

Q. You're not there to expand any particular caucus, correct?

A. Correct.

Q. Mr. Besler, I assume because you are a named plaintiff in

this case that you subscribe to the theory that legislative

leaders use these legislative caucus committees to entrench

themselves in power, correct?

A. You know, I don't familiarize myself with how legislative

leaders operate. I focus on what our PAC operates on.

Q. Fair enough. Then you would agree that you have no

factual support to indicate any instances in which legislative

caucus committees used rewards or punishments or withheld

electoral support?

A. I'm not aware of any.

Q. And just so I can finish my question, do so to entrench

the leadership in power, correct?

A. Again, I'm not aware of any.

MR. HORVAT: Mr. Besler, I appreciate your time, sir.

Thank you very much.

THE COURT: Thank you. Just to follow up on some of

the questions, you were talking about directly supporting a

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candidate, and you were suggesting that Illinois Liberty PAC

could spend money in a way that doesn't directly support the

candidate. Were you referring to independent expenditures?

THE WITNESS: No. I'm just referring to what my

understanding is of campaign reporting laws, that if I go out

there and send out a piece that says, "Free market principles

are generally a good practice. We should all engage in that,"

I don't think I'm capped by doing that because I'm not

mentioning a candidate, so it's not directly supporting a

candidate. But if I say, "Go support so-and-so candidate

because they represent true free market principles," then I

think that means I'm supporting a candidate, so that piece or

whatever that is would be looked at as helping that candidate,

which then I have to make sure that doesn't go against our

cap.

THE COURT: I see. So -- but even if you're not

coordinating with the campaign, you think that that money

still goes against the cap?

THE WITNESS: No, I don't think it does. But if I'm

just doing a blanket piece that says -- that doesn't mention

the candidates, I don't think it goes against any candidate's

cap.

THE COURT: But what if -- are you saying that you

can't operate in the way that, say, a federal Super PAC like

Rite to Arise can operate?

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THE WITNESS: Correct. Because it's my understanding

I cannot give -- I can give direct contributions to

candidates, which means the money that the PAC is raising is

capped. I believe that independent expenditures can't

coordinate candidates, so their dollars that are coming in are

not capped.

THE COURT: I see. So, could you do things like

Rite to Arise is doing, which is to run an advertisement

either in favor of your preferred candidate or against a

not-preferred candidate, so long as you don't coordinate with

your favored candidate, in a way that doesn't count against

the cap?

THE WITNESS: I'm not familiar with that

organization, but if I put anything out there that supports

the candidate, then I am -- then I am bound to report that as

an in-kind contribution, because Illinois Liberty PAC is a

direct expenditure PAC.

THE COURT: I see. Could Illinois Liberty PAC

organize itself in a different way so that it would be allowed

to make independent expenditures in support of a particular

candidate so long as there was no coordination with that

candidate?

THE WITNESS: I think anybody can become an

independent expenditure PAC. Liberty PAC is intended to be a

direct expenditure PAC; and as a direct expenditure PAC, we

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have to follow the law, which is the limitations that we have.

THE COURT: But if Illinois Liberty -- if the powers

that be at Illinois Liberty PAC decided to do so, it could

become an independent expenditure organization?

THE WITNESS: Sure, sure. But our main thing is we

like to work with candidates.

THE COURT: Could you have two arms that are separate

but for both --

THE WITNESS: I don't know. I mean, I guess -- I

don't know if you can have the same name. I'm not familiar

with those legal restrictions on Liberty -- a direct and

independent, if they can have the same name or not. I'm not

aware. I don't believe they can. Maybe it's different

federally, but I don't know.

THE COURT: Okay. Thank you.

Plaintiffs, any redirect based on the defendants'

questions or mine?

MR. HUEBERT: No, your Honor.

THE COURT: Okay. Defendants, any recross based on

my questions?

MR. HORVAT: No, your Honor.

THE COURT: Okay. Thank you, Mr. Besler. You can

step down.

(Witness excused.)

THE COURT: And Mr. Besler is the rep of Illinois

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Liberty PAC?

MR. HUEBERT: That's correct, your Honor.

THE COURT: Okay. So, you can stay in the courtroom

as well.

We've been going for about an hour and 20 minutes, so

why don't we take a 10-minute break. We'll come back at a

little after 11:00 o'clock, and then we'll probably go until

about 12:10.

And if you could -- do you have one more witness, or

more than that?

MR. HUEBERT: Just one, your Honor.

THE COURT: Okay. And that will be your expert?

MR. HUEBERT: That's correct, your Honor.

THE COURT: Okay. Very good. Thank you.

(Recess had.)

THE COURT: Do one of plaintiffs' counsel want to

check in the hallway to see if defense counsel is there?

So, do we have -- are plaintiffs ready to call their

next witness?

MR. HUEBERT: Yes, your Honor. The plaintiffs call

Marcus Osborn.

THE COURT: Dr. Osborn, if you could step up, please.

If you could remain standing, raise your right hand, and state

your name.

THE WITNESS: Marcus Brian Osborn.

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(Witness sworn.)

THE WITNESS: I do.

THE COURT: You've been sworn. You may be seated.

There's a pitcher and some cups if you'd like to pour yourself

some water.

And the -- in terms of the microphone and how it

works, you don't have to be right on top of it like that; but

if you speak directionally towards it in a moderate tone of

voice, it should be able to pick you up.

THE WITNESS: I do have a bad habit of not speaking

into the microphone, so please, if I do that --

THE COURT: Sure. I've never had any problem

directing a witness to do that.

MS. SCHELLER: Your Honor, I apologize. I was out in

the hallway. I just -- if we're calling Dr. Marcus Osborn,

the defense would just like to renew their objection to

Dr. Osborn's testimony to preserve our record.

THE COURT: Okay. That's fine. I think you're

already preserved on that twice, but in case not, you're now

preserved a third time. And I'm going to deny that motion for

the reasons stated in my most recent opinion.

Are you ready to go, Dr. Osborn?

THE WITNESS: Yes, I am.

MARCUS BRIAN OSBORN, PLAINTIFFS' WITNESS, DULY SWORN.

DIRECT EXAMINATION

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BY MR. HUEBERT:

Q. What do you do for a living, Dr. Osborn?

A. I'm in the government relations field.

Q. And what is it that you do working in the government

relations field?

A. I represent clients before legislative bodies,

administrative bodies, assist them in developing political

policy strategies, draft legislation, review legislation,

provide policy expertise on various public policy issues, and

work with policy-makers, legislators, campaign and

other-related issues.

Q. What is it that you do related to campaigns?

A. I advise clients on contribution strategies. I've -- in

the past, I've also assisted candidates in actually running

campaigns, developing marketing strategies, and running

elections, assisting them in campaign finance strategies, all

aspects of running campaigns.

Q. And how long have you been doing this type of government

relations work?

A. Since the early 1990s.

Q. Do you work for a firm?

A. Yes. I work for Kutak Rock.

Q. What kind of business is Kutak Rock?

A. It's a national law firm.

Q. Are you an attorney?

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A. No.

Q. So, Kutak Rock offers government relation services in

addition to legal services?

A. Yes, they do.

Q. How long have you been working in this field at Kutak

Rock?

A. About three years.

Q. You mentioned a moment ago that you're -- strike that.

Do your clients that you serve as a government

relations specialist include governmental agencies?

A. Yes, they do.

Q. Can you provide some examples of government agencies

you've represented while working at Kutak Rock?

A. Yes, I can. I represented the Town of Queen Creek, and

still do, on legislative matters. I've represented Phoenix

Industrial Development Authority. I've also done work for the

Arizona state legislature on campaign finance issues related

to the Clean Election v. Bennett case.

Q. And what exactly did you do for the Arizona legislature in

connection with the case you just identified?

A. The legislature increased campaign contribution limits

because of the increased outside money spending. The Clean

Elections Commission sued to overturn those limits, and I

provided a report explaining how the presence of increased

outside campaign contributions put candidates at risk unless

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they had a better opportunity to fundraise.

Q. Do you know what court that case was before?

A. I believe it was -- went all the way up to the Arizona

Supreme Court.

Q. Before you worked at your current firm, did you work

somewhere else?

A. Yes. I worked for a marketing and lobbying firm called

R & R Partners for about 12 years.

Q. What kind of business is that, to be clear?

A. They provide generalized marketing efforts, and then they

have a government relations division that provides lobbying

services, campaign services, and other types of policy,

political-related services to both business clients and

individuals.

Q. How long did you work for R & R Partners?

A. 12 years.

Q. And did you do the same type of work there essentially as

you do now for Kutak Rock?

A. Very similar, yes.

Q. Did you represent any governmental agencies when you

worked for R & R Partners?

A. Yes. I represented the City of Phoenix, Valley Metro,

which is a local transit agency in the Phoenix area. And we

also did work for the Arizona Secretary of State on voter

outreach communication and messaging.

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Q. You said that you have represented clients before the

legislative branch of government. Have you done that kind of

work in any matters related to election law?

A. Yes, I have.

Q. Who was your client for that work?

A. The Arizona Chamber of Commerce and Industry, which is the

largest chamber of commerce in Arizona in terms of public

policy matters. And I -- I assisted them in helping craft

some legislation to deal with the regulatory environment for

campaigns in the post-Citizens United environment.

Q. And do you advise state legislative campaigns?

A. Yes, I do.

Q. What state legislative campaigns have you advised?

A. Senate President Randall Gnant; Senator and former

Representative Carolyn Allen, who was the House Majority

Leader. I represented Laura Knaperek, Representative Michael

Gardner. Those were all done on a more formal basis, and I've

informally advised numerous other candidates as well, in

addition to Representative Carol Sommers.

Q. And just to be clear, those are all Arizona state

candidates?

A. Yes.

Q. And what are some examples of things you've advised

legislative candidates on?

A. Marketing strategies, campaign strategies, designing

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direct mail and voter outreach efforts, fundraising

strategies, general campaign consulting strategies.

Q. Do you believe that anything in particular makes you

qualified particularly to advise candidates on campaign

financing strategies?

A. My professional experience, understanding both the

relationship of marketing and public relations, and my

academic background and professional background.

Q. Speaking of your academic background, let's discuss that.

Where did you receive your undergraduate degree?

A. The University of Arizona.

Q. And what year did you graduate?

A. 1993.

Q. Do you have any graduate degrees?

A. Yes. I have an MPA, a Master's in Public Administration,

and a doctorate in public administration from Arizona State

University.

Q. Is that doctorate a Ph.D.?

A. Yes, it is.

Q. And when did you receive the Master's Degree?

A. I think about 1998.

Q. And when did you receive your Ph.D.?

A. 2003.

Q. And the Ph.D. was in public administration?

A. That is correct.

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Q. What is public administration?

A. Public administration is a science that deals with the

management of government. It involves both issues of

traditional -- applies concepts from the business sector in

terms of business management. It also applies concepts from

the political science field and merges those together to

inform how governments operate both politically and from a

policy perspective.

Q. As part of your work to earn your Ph.D., did you write a

dissertation?

A. Yes, I did.

Q. What was your subject of your dissertation?

A. It was on how interest groups achieve influence through

campaign contributions and the importance of both money,

information, and how those interact together.

Q. To complete your dissertation, did you have to become

familiar with the general body of academic literature in any

particular subjects?

A. Yes.

Q. What did those subjects include?

A. Political science, particularly focused on interest group

theory and how interest groups get influence both at the

federal and state level, state legislative operations,

campaign-related issues, and to a lesser extent, political

parties.

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Q. Can you give more details on what the -- what you studied

with respect to campaigns?

A. So, in terms of campaigns, how electoral vulnerability and

other issues impact the willingness of candidates to be

influenced by interest groups is one of the themes in the

interest group literature.

Q. Was the literature you became familiar with in your Ph.D.

studies focused primarily on Arizona law and politics?

A. No. It's a much broader literature. They incorporate

some elements from the congressional literature as well as

state legislative issues.

Q. Today, do you remain familiar with the general body of

academic literature with respect to the subjects you studied

in obtaining your Ph.D.?

A. Yes.

Q. Since you received your Ph.D., have you written any other

academic works related to the subjects you've just described?

A. Yes, I have.

Q. Can you tell us what works you've written on those

subjects and just briefly what each one is about?

A. I wrote a book chapter on how governors lobby the

legislature. I wrote a piece on the use of -- it was an

application of my dissertation on -- basically a conference

paper based off of my dissertation. I wrote a conference

paper that describes how different economic factors drive the

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need for lobbying and government relation services.

And then I developed a paper on using options theory

to help -- as a tool for campaign consultants in lobbying

strategies.

Q. You mentioned earlier that you served as an expert witness

on behalf of the Arizona legislature in a court case. Have

you served as an expert witness in any other court cases?

A. Yes, I have.

Q. What case was that?

A. Arizona Free Enterprise Club v. Bennett.

Q. Do you know what court that case was before?

A. It eventually went up to the U.S. Supreme Court.

Q. On whose behalf did you testify in that case?

A. I was representing or was recruited by the plaintiffs on

the prevailing side, and the plaintiffs were a number of

legislators who were concerned about the matching funds

provision of the Arizona Clean Elections Act.

Q. And what was the subject matter of your expert testimony

in that case?

A. I looked at strategies for gaming the election system and

the -- and how the current system of campaign contribution

limits was adequate to protect against the appearance of

corruption.

Q. Do you know the result of that litigation?

A. The plaintiffs were ultimately successful.

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Q. Dr. Osborn, have you reviewed Article 9 of the Illinois

Election Code?

A. Yes, I have.

Q. So, as we talk, if I refer to the code, you'll understand

that I'm referring to the Illinois Election Code?

A. Yes.

Q. And it's possible I'll also refer to Article 9 of the

Illinois Election Code as the act. If I do that, you'll also

understand what I'm referring to?

A. Yes, I will.

Q. In particular, have you reviewed the contribution limits

that Article 9 of the code places on individuals, political

action committees, political party committees, and legislative

caucus committees?

A. Yes, I have.

Q. And have you analyzed how the structure of those limits

affects opportunities for corruption and the appearance of

corruption?

A. Yes, I have.

Q. And in particular, have you analyzed the role of

legislative caucus committees within that structure?

A. Yes, with particular focus.

Q. And do you have an opinion as to whether the Illinois

Election Code's treatment of legislative caucus committees

affects opportunities for corruption and the appearance of

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corruption?

A. Yes, I do.

Q. And in summary, what is your conclusion as to whether the

Illinois Election Code's treatment of legislative caucus

committees affects corruption or the appearance of corruption?

A. The -- the structure of the caucus committee system

enhances the potential of corruption because it links a

policy-making authority directly with a fundraising system.

MR. HUEBERT: Your Honor, may I approach the witness?

THE COURT: Sure.

BY MR. HUEBERT:

Q. Dr. Osborn, I've handed you what's been marked as

Plaintiffs' Exhibit 1. Do you recognize it?

A. Yes, I do.

Q. What is it?

A. It is the report I prepared.

Q. And does this report state your opinion on how the code's

treatment of legislative caucus committees affects corruption

or the appearance of corruption?

A. Yes, it does.

Q. And does this report state the basis for that opinion?

A. Yes, it does.

Q. Before you explain your opinion, we should define some

terms. The Illinois Election Code defines several different

categories of people or entities that commit contributions to

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candidates for office, is that correct?

A. Yes, that is correct.

Q. What are those categories?

A. There are individuals, political action committees,

corporations, political action committees, and then there's

also individual candidate committees.

Q. Are there also political party committees?

A. Yes, yes, I'm sorry.

Q. And does the code also refer to a type of entity called a

legislative caucus committee?

A. Yes, it does.

Q. And what is a legislative caucus committee under the code?

A. There's in essence three ways a caucus committee can be

formed. First, the code designates the Speaker, the Senate

President, and the two minority leaders as -- gives them the

authority to create a caucus committee. And it additionally

allows five members of the Senate or 10 members of the House

to raise their own caucus committees as well.

Q. Can you give -- provide some examples of entities other

than legislative caucus committees that would be considered

political party committees under the code?

A. The Democratic Party. I think I understood your question

right.

Q. But the Democrats could have different political party

committees, right? Can you provide some examples of the

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different kinds they could have?

A. Oh, yes. The code allows there to be multiple types of

political party committees, whether it's based at the county

level, the legislative district level, ward level. There's,

I think, approximately 379 different types of political

parties in Illinois.

Q. Now, as you proceed in your testimony, if I say political

parties or political party committees, I am referring to

political party committees other than legislative caucus

committees. And if I mean to include legislative caucus

committees, I'll specifically refer to legislative caucus

committees. Does that make sense?

A. Yes, it does.

THE COURT: Defendants, you got that?

Okay. Go ahead.

BY MR. HUEBERT:

Q. The code places different contribution limits on the

different categories of political contributors, is that

correct?

A. Yes, it does.

Q. And at the time you submitted your report, the most an

individual could give to a candidate in an election cycle was

$5300, is that correct?

A. That's correct.

Q. And at the time you prepared your report, the most a

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corporation or other association could give to a candidate in

an election cycle was $10,500, is that correct?

A. That is correct.

Q. And at the time you prepared your report, the most a

political action committee could give to a candidate in an

election cycle was $52,600, is that correct?

A. That is correct.

Q. And at the time you prepared your report, what was the

most a political party committee could give to a candidate in

an election cycle?

A. Can you be a little more clear when you say "election

cycle"?

Q. In a general election, at the time you prepared your

report, what was the most a political party committee could

give to a candidate?

A. Unlimited amounts.

Q. And at the time you prepared your report, what was the

most a political party committee could give to a candidate in

a primary election?

A. There were limitations. I'm trying to remember. I know

for the caucus committees, they were about 78,000, and 131,000

for -- depending on whether they were a Senate or House race.

Q. So, those are approximate figures? It might be 131,600

for a Senate candidate?

A. Right.

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Q. And it might be 78,900 for an Illinois House candidate?

A. That's correct.

Q. You mentioned that the code considers legislative caucus

committees to be a type of political party committee. Does

that mean that legislative caucus committees have the same

type of contribution limits or lack of contribution limits as

any other political party committee?

A. I'm sorry. Can you repeat the question?

Q. The code -- you mentioned that the code considers

legislative caucus committees to be a type of political party

committee. Does that mean, then, that legislative caucus

committees face the same contribution limits or lack of

contribution limits as any other type of political party

committee?

A. That is correct.

Q. Are there differences between the way the code treats

legislative caucus committees and the way that it treats other

types of political party committees?

A. There are some differences.

Q. What are those differences?

A. The major difference is that candidates are limited from

accepting contributions from only one caucus committee.

Q. Are there differences with respect to how those committees

are formed?

A. Yes.

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Q. What are those differences?

A. The differences is the code specifies whether it's the --

I'm sorry, the Senate President, the Speaker, or the minority

leaders can create their own caucus committees. And as I

mentioned before, the combination of five senators or 10 House

members can also create a caucus committee. So, it's

prescriptive; whereas, the party provisions relate more to the

nature of the legislative -- or the district in which they're

forming a party, the geographic boundary is probably the

easier way to say that.

Q. Now, let's step back from the Illinois code for a moment

to talk about the characteristics of the different types of

political contributors in general based on your knowledge

of -- from your education and from your work.

Can you explain what goals and strategies that

political parties generally, not including legislative caucus

committees, generally pursue?

A. Political parties pursue what I would call an expansion

strategy. They are always trying to enhance their numbers,

either their numbers of registered voters or the number of

officeholders that they can get elected.

In addition, they are also there to protect their

existing membership as well to make sure that the other side

does not make inroads. So, they are designed as a body to

elect. They're not focused necessarily on policy-making as

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such.

Q. Do political parties pursue any other goals or strategies

besides trying to maximize the number of party members elected

to office?

A. That's their primary and overwhelming goal.

Q. Do political parties tend to attract campaign

contributions from any particular types of donors?

A. Political parties tend to get a broad cross section of

donors, including small individuals. In some cases,

corporations or allied interest groups also contribute. So,

they get a broader mix of contributors who are interested in

the broader electoral goals of the party.

Q. Does that diverse mix of contributors affect the potential

for corruption or the appearance of corruption with respect to

contributions to a political party?

A. Yes, it does.

Q. How so?

A. The potential for corruption increases when you have an

intense concentration of contributions, meaning that it's from

one select group of industries or one select group of

interests. And those contributions become heavily favored and

valued. If you have a diverse series of contributions, that

mitigates the potential for corruption because you have a

diverse cross section of contributors.

Second is parties are one step removed from the

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policy-making process, meaning while their goal or job is to

elect candidates, they are also not actively involved in the

day-to-day legislating or policy-making as a legislator or a

governor would be.

Q. So, when a political party receives contributions and then

donates them to candidates for office, does the diverse mix of

contributors to the political party affect the potential for

corruption inherent in the donations from the party to a

candidate?

A. Yes, it does. If you look at the academic literature,

scholars tend to believe that parties are a countervailing

force against interest group influence; and so because

interest groups are seeking access, they have a slightly

different strategy than a political party, which is there to

promote the interests of their party members and grow their

party.

Q. And just to be clear, what is your basis for the testimony

you've just given about the strategies that political parties

pursue and how that affects the potential for corruption?

A. That's based on the academic literature, some of which

I've cited in my report.

Q. Okay. Now let's talk for a moment about political action

committees. Can you explain to us what goals and strategies

political action committees in general pursue?

A. Political action committees tend to implement what we call

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access-driven strategies. The goal of a political action

committee is to help set the environment so that they can

influence a public policy decision.

Yes, there are some what I'd call ideologically-based

political action committees that are just trying to promote a

broader agenda; but when you think about the political action

committees tied to corporations or labor unions or trade

associations, they are pursuing an access strategy where

they're trying to supplement their on-the-ground lobbying or

influence strategies on public policy with campaign

contributions.

Q. Is there a relationship between political action

committees' use of these access strategies that you've

described and the potential for quid pro quo corruption or the

appearance of quid pro quo corruption inherent in political

action committees' contributions to candidates?

A. Yes, there is a relationship. One of the reasons why many

states will limit campaign contributions from political action

committees or corporations is to provide a buffer so that

there isn't as intense a level of concentration of these

contributions.

And because of their tie to policy-making in a more

direct fashion than, say, a political party contribution, the

risk is higher for quid pro quo type of corruption.

The idea would be, "Unless you support X, Y, or Z

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candidates, we will not move your piece of legislation through

the process."

Q. And just to be clear, what's your basis for the testimony

you've just given about the strategies that political action

committees pursue and how that affects the potential for

corruption?

A. As someone who has worked and helped manage political --

political action committees and my review of the literature,

those two elements provide the foundation for that argument.

Q. Does the academic literature you're familiar with say

anything about the combined effects of political party

contributions and political action committee contributions on

a candidate?

A. Yes.

Q. And what does it say about that?

A. Can you be a little bit more specific?

Q. Does the literature say anything about the relative

influence on political party contributions and political

action committee contributions on a candidate? Is there a

relationship? Is there an interaction between the effects

of those contributions coming in to a candidate?

A. Political party contributions in terms of influence, in

terms of specific public policy issues, tend to be more

general; whereas, the risk of an interest group contribution,

since they tend to be a little bit more transactional, there's

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a higher degree of potential for influence or corruption on

the interest group contribution as compared to the political

party contribution.

Q. You described some general characteristics of political

parties and political action committees. Do the

characteristics of political parties you've described

necessarily apply to every political party committee?

A. No, they're generalizations of how political parties

operate.

Q. And do the characteristics of political action committees

you've described necessarily apply to every political action

committee?

A. No. As I said before, they represent diverse interests.

But as a general notion, they tend to be access-granting or

-seeking organizations.

Q. So, if you were presented with an example of a political

action committee that did not pursue the strategies you said

that political action committees generally pursue, would that

change your views regarding the strategies those groups

generally pursue?

A. No.

Q. Why not?

A. As I said before, there's a diversity of interest groups

or political action committees. Some may have varying degrees

of sophistication or different policy goals, so there may be

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examples on the outside where they don't pursue necessarily an

access strategy and they're more electorally focused.

Q. So, if you were presented with an example of a political

action committee that did not pursue the strategies you said

that political action committees generally pursue, would that

change your opinion regarding the strategies that those groups

generally pursue?

A. No.

Q. Why not?

A. Because it's a generalization of what as a group those

interests seek out.

When I -- as an example, when I did my dissertation,

I labeled all interest groups as a uniform category and used

that as a variable in my model. So, it's taken as a

generalization of what interest groups as compared to other

actors in the political process provide.

Q. Is that the approach taken in the academic literature

generally?

A. The academic literature looks for trends and themes, and

it's social-science-based, so we're not looking for absolutes

because these are dynamic systems with dynamic interests.

Q. Apart from the legislative caucus committees defined in

the Illinois Election Code, is the concept of a legislative

caucus committee something that you're familiar with

generally?

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A. Yes.

Q. And what is that in general, according to your

understanding?

A. Outside --

MS. SCHELLER: Objection. Relevance.

THE COURT: Overruled.

BY THE WITNESS:

A. Outside of the caucus committee structure specifically

defined in the statute, caucuses in general are bodies that

manage the legislative operations of a legislature. They are

how parties organize themselves for both political

organization and for policy-making.

So, caucuses are utilized as tools to help Democrats,

Republicans organize themselves, help establish policy

positions, and create administrative structures to manage the

operation of legislative bodies.

BY MR. HUEBERT:

Q. And so just to be clear on the terms you're using, would

you call what you just described a legislative caucus?

A. Yes.

Q. And is there something different from that you're familiar

with that would be called like a caucus committee?

A. A legislative caucus committee would be the finance arm

of -- as defined in the Illinois statute.

Q. Is that a concept that -- is that a more general concept

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that exists or could exist in other states?

A. The idea of caucus committees -- caucuses can also be

arranged with subcommittees and other organizational features,

so a caucus committee could be a body -- outside of the

Illinois campaign finance definition, it's any mechanism to

organize members within a legislative body.

Q. Are you talking about with respect to financing?

A. It could be either financing or administration and

policy-making.

Q. Would those be two different types of things you're

talking about there, two different concepts?

A. Yes.

Q. So, just for clarity as we talk, if I say legislative

caucus, it would make sense that that refers to the

organization within the legislature that is not necessarily

tied to fundraising; does that make sense as to the use of

that term?

A. Yes. They may have some activity generally speaking for

fundraising, but it's more -- normally a caucus is more a

group that operates the operations of the House and Senate on

a partisan basis.

Q. And if I were to use the term "caucus committee," would it

make sense to use that term to refer to a type of committee

that's used as a fundraising vehicle?

A. Yes.

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Q. Okay. So, do legislative caucuses -- excuse me. Strike

that.

In general, do legislative caucuses have all the same

characteristics as a political party committee?

A. No.

Q. What are the differences?

A. The primary difference is while they both have electoral

goals in order to maintain their status as a -- in the

legislature, a legislative caucus committee is also organized

to manage the policy affairs of whatever legislative body they

are part of. So, they organize themselves in a committee

structure. They assign members to different committees to do

policy work. They use the caucuses as a filtering mechanism

for policy ideas and try to coordinate legislating --

legislative activity.

So that it's easiest to think of it in two ways: The

political side of making sure they maintain their agendas,

which could include fundraising and campaigning and those

elements; and the second area is the actual legislating and

organizing the legislating activity.

Q. Just so we're clear on our terms, is what you described --

just described what you defined earlier as a legislative

caucus?

A. That is correct.

Q. Not necessarily identical to the concept of a legislative

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caucus committee in Illinois?

A. Correct.

Q. In general, do caucus committees, the kind we talked about

for financing purposes, have all the same characteristics as a

political party committee?

A. Yes, they do, with a couple of exceptions. One, they have

the exclusivity limitation, and they are focused on just

legislative members have the ability to create those

committees. So, they are similar, but there is some

differences.

Q. I just want to be clear. The question I just asked was

not about legislative caucus committees as defined in the

Illinois code.

A. Okay.

Q. I'm talking about the more general concept of a caucus

committee, the vehicle you described that members of a

legislature could use for financing. Is that type of

committee -- does that type of committee have all the same

characteristics as a political party committee?

A. No. While they are both -- have an electoral interest, a

legislative caucus has the secondary or additional requirement

of managing the legislative operations on a partisan basis.

Q. We keep going back and forth between these twos terms, so

I want to make sure we're very clear. There's the -- you've

described a legislative caucus as the thing that is involved

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in managing legislative affairs in the legislature.

The question I just asked was not about that. My

question was about -- specifically about a committee for

financing related to members of the legislature. So, just to

be clear, does that kind of committee for financing have all

the same characteristics as any other political party in

general in the abstract?

A. No. They're similar, but not identical.

Q. What makes them different?

A. The legislative caucus committee for financing is a

vehicle that is -- gives special powers to the legislative

leaders of each of the caucuses or a self-organizing group of

members within the legislature to organize financing for

legislative financing purposes. So, it's a -- it has a more

narrow focus than a political party, which is examining all of

the aspects of political races within that. So, it's

specifically tied to legislative elections.

Q. Do legislative caucuses typically have a leader?

A. Yes, they do.

Q. And who, if anyone, typically serves as a leader of a

legislative caucus?

A. The leader tends to be either the Senate President, the

Speaker of the House, could be a minority leader, and in some

states, it could be a majority leader. So, there's a mix.

But usually the majority party, their leader also has the role

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as being the Speaker or the President of the body. So, they

have both formal authority over the body, but also authority

over the caucus as well.

Q. Do the leaders of legislative caucuses generally have any

kind of institutional authority?

A. Yes, they do.

Q. And what does that include?

A. The Senate President and the Speaker of the House have the

ability to make committee assignments, direct legislation,

calendar legislation, appoint individuals to committees. So,

they have very significant legislating authority in terms of

managing the legislative process. They also commonly control

staff and have a key role in defining rules and policies for

each legislative body.

Q. Are caucus leadership positions generally considered

desirable among legislators?

A. They are probably the most desirable positions, where

members -- many members will aspire to become a Speaker or a

Senate President, if possible.

Q. Why is that?

A. Given their fairly significant institutional power puts

them in the best position to influence public policy and the

legislative agenda of the caucus.

Q. If a leader of a majority party's legislative caucus wants

to maintain his or her position as leader, are there certain

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things that he or she must do to stay in that position?

A. Yes.

Q. And what are those things, at a high level of generality?

A. First, they have to be supported by their caucus. Second,

they have to maintain the numbers of their caucus. And third,

they must make sure that the membership or the majority of the

membership of their caucus is supportive of their position as

leader.

So, those are the core elements. So, they have to

provide enough benefits to the broad base of the members that

the members see value in them as leader. They have to

maintain the numbers of the caucus or electoral status. And

then they have to be an effective public policy leader as well

so that the members respect their ability to guide the public

policy process for the legislative body.

Q. After someone becomes a legislative leader, are there

particular tools that he or she can use to maintain his or her

support within the caucus?

A. There are a series of carrots and sticks that they can

use providing members with plum committee assignments or

fast-tracking the legislation or providing assistance to the

legislation. They can provide fundraising support, either

direct or indirect, or they can withhold fundraising support.

Similarly, if a member has been problematic on some issues,

they can slow down or restrict their legislative efforts.

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So, there's a series of carrots and sticks that a

leader can utilize. They have to be judiciously handled to

make sure that the caucus as a whole is content with their

leadership, but there are a series of kind of levers or

hammers and carrots that they can use.

Q. You said the leader can do things related to fundraising

to support him -- to maintain support for himself or herself

within the caucus. How could a leader use fundraising to

maintain support within the caucus?

A. Well, in the role of leading the finance -- caucus

committee finance arm, they can direct contributions to

members. In addition, they can attend or help solicit members

funds if they did not have a caucus committee fundraising

source.

But the caucus committee in particular fundraising

structure allows them a very direct mechanism to distribute

campaign contributions directly to members.

Q. Can a legislative leader use campaign contributions to

advance his or her personal policy agenda?

A. Yes. When I was speaking of the tools that they can

utilize, that could be a potential tool as a way of

influencing members, saying, you know, additional campaign

funds will either be provided or withheld depending on how

supportive they are of the Speaker's agenda or the caucus's

agenda. So, it is a tool that can be utilized.

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Q. Does a legislative leader's ability to make campaign

contributions, through whatever vehicle is available, to

legislative candidates create any opportunities for quid pro

quo corruption?

A. Potentially, yes.

Q. How so?

A. Well, the leader can formally say, "Unless you vote for

this bill, you will not receive contributions," or even a more

subtler form to say -- where a member could say, "You know,

that bill's going to be very difficult in my district. It

would be helpful if I had some additional fundraising

opportunities from the caucus committee to help mitigate

that."

So, there's a range of kind of discussions that can

occur that could lead to potentially quid pro quo corruption.

Q. Is having a caucus committee fundraising vehicle an

inherent part of being a legislative leader? In other words,

is that something that legislative leaders kind of by

definition would always have everywhere?

A. No. They will always be active at some level in

fundraising, and that could be indirect or hosting events for

other members. But having such a direct mechanism isn't

necessarily a requirement for a leader to manage a caucus.

Q. Now, considering the legislative caucus committees that

exist under the Illinois Election Code in particular, can you

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see any advantages that having those legislative caucus

committees would give Illinois' legislative leaders?

A. Yes.

Q. And what would those be?

A. Because they're able to redirect significant amounts of

campaign funds, it potentially can create some dependency

between the members and the legislative leaders in terms of

their fundraising efforts.

In addition, because those contributions -- once

they've received them from one caucus committee or in essence

an exclusive contribution, it helps to mitigate potential

rivals within the caucus from creating their own caucus

committees and creating a really effective fundraising

strategy to create electoral pressure on the legislative

leaders.

So, it has the effect of concentrating power at the

top of the caucus and minimizing the potential for individuals

who are -- want to rise up in the caucus to challenge the

legislative leader.

Q. And do the limits that the code places on other types of

political contributors besides legislative caucus committees

affect how much of an advantage the legislative caucus

committees give to the legislative leaders?

A. The ability to have a countervailing fundraising source I

think is an important interaction. Legislative caucus

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committees can be a very dominant fundraising source; whereas,

political action committees and other organizations which can

be much more decentralized have stricter campaign contribution

limits, and so it minimizes some of the competition from the

caucus committees.

Secondly, because a lot of the interest groups are --

and PACs and other contributors are access-seeking

organizations, contributing to the legislative leaders'

committees are one of the most attractive areas to dedicate

resources because of their strong role in the policy-making

process.

Q. Can you elaborate a little bit more about why legislative

caucus committees would tend to attract interest group

contributions?

A. So, if you look at a lot of the academic literature about

where interest groups contribute, they're going to contribute

to folks that, one, are aligned to their issues, but two, are

in positions of authority and power. So, if it's a specific

issue, they're going to dedicate more of their contributions

to a relevant committee.

The Speaker and the President and the legislative

leaders are at the top of the food chain in terms of

organizational power, so it makes sense that they would

dedicate those resources there, because having access to those

individuals is the most important goal in terms of granting --

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achieving an access strategy.

Q. You testified earlier that in general, a legislative

leader's ability to give campaign contributions can give rise

to opportunities for quid pro quo corruption. Does the

Illinois Election Code's treatment of legislative caucus

committees affect those opportunities for corruption?

A. Yes, it does.

Q. How so?

A. The issue is by combining the policy-making function of

the Senate President, the two minority leaders, and the

Speaker with extraordinary fundraising power, you've now, in

essence, merged policy-making and electoral in a very tight

nest together; and that relationship, I think, enhances the

potential for corruption.

This is compared to a party or a distant external

organization that would be fundraising or supporting the

caucuses. By tying that so close, I think you've brought in

an enhanced potential for corruption.

Q. Does the provision of the Illinois Election Code that

prohibits candidates from accepting contributions from one --

more than one legislative caucus committee in a given two-year

election cycle have an effect on the opportunities for

corruption inherent in legislative caucus committees'

contributions to candidates?

A. It does, because it centralizes the fundraising to

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candidates -- the caucus committee structure. So, once -- if

you're the only game in town or the most powerful game in

town, even if there's other caucus committees that are formed,

if you get your contributions in early from those

organizations, you've in essence got exclusive rights to those

members in terms of contribution strategies.

Q. And how does that relate to the opportunities for quid pro

quo corruption?

A. Well, if a candidate is -- a member is in electoral

distress when they need the resources the most and they're

already committed to the caucus committee, that creates a

powerful incentive or power to influence not only the

candidate's behavior but influence their policy-making as

well. In essence, it's almost a dependency factor.

Now, that has to be judiciously used because if the

Speaker or President uses it too aggressively, they will lose

the will and the interest of their caucus; but when you have a

strong fundraising machine, it allows the legislative leaders

on both minority and minority to have a fairly good series of

carrots and potential sticks.

Q. Does the provision of the Illinois code that prohibits

candidates from accepting contributions from more than one

legislative caucus committee in a given election affect a

legislative leader's ability to remain in his or her position

as leader?

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A. I think it enhances it, because it gives them a sense of

exclusivity. Whether they had a caucus committee or not,

legislative leaders will always have a superior fundraising

ability. As I mentioned before, interest groups in particular

want access to the highest-level leaders, and they will always

seek that out.

When you enhance that by also making a caucus

committee that has the ability to limit access from other

caucus committees, you've really enhanced that centralization

of fundraising authority.

Q. Now, you testified that the exclusivity enhances that.

Then what do the limits -- what effect do the limits on other

political contributors do to that ability?

A. The -- if you're looking for -- if candidates can find

other sources of funding that are as efficient and can be

achieved through higher limits, that could be a

counterbalancing force to the concentration of fundraising

within the caucus committee system.

Q. When you examine the characteristics of legislative caucus

committees under the Illinois Election Code, do they bear a

closer resemblance to other types of political party

committees, or do they bear a closer resemblance to political

action committees?

A. I believe they're somewhat in between. And where I think

they fall is they're -- they more closely resemble what I

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would call a leadership PAC. And when I speak of legislative

caucus committees, I'm speaking of the ones that are

exclusively managed by the four top leaders.

In that sense, the legislative caucus will operate in

both a -- kind of an expansionist strategy or kind of a caucus

strategy, but they will also have a secondary purpose of

managing or assisting in a leader achieving their personal

objectives.

Now, commonly, those will be very aligned, where the

leader wants to do the best for the caucus, but there could be

opportunities where they diverge either in subtle ways or even

in more significant ways.

Q. You used the term "leadership PAC." To be clear, what is

a leadership PAC?

A. A leadership PAC is a concept where a -- and they're

common in Congress, where a congressional member will create a

fundraising arm and use those funds to contribute to other

candidates within their caucus or within their party. So,

it's a way that the emerging leaders or even senior leaders

can provide electoral support in a decentralized way.

One of the benefits for the member managing that

legislative leadership committee is they're able to curry some

favor with other legislators who receive those contributions.

And so there's a benefit both for the caucus or for the party,

but there's also a benefit for that individual leader.

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That seems very similar to the kind of four-top

legislative caucus committee, where they have both some

individualized benefits as well as some caucus benefits.

Now, for the other caucus committees where they're

created by five or 10 members, you don't see that same

concentration of individualized benefit. Those are more

generalized benefits for the caucus or at least the members

who are creating those broader-based caucuses.

Q. Does the academic literature in your field discuss the

strategies and goals that leadership PACs pursue?

A. Yes, it does.

Q. And according to that literature, what strategies and

goals do leadership PACs generally pursue?

A. They call them Type 1 goals, which are kind of the broader

caucus-building, party-building goals, and then Type 2 goals

are the more individualistic goals of the leaders of the

leadership PACs, so how can those contributions benefit the

leaders. So, they may give to individuals on certain

committees or folks that they may want to seek out for their

efforts to become a leader or a committee chair or something

of that nature.

Q. How do leadership PACs differ in their goals and

strategies from political party committees?

A. Political party committees are there to support the broad

agenda of the party, and they always have an access -- or not

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access, excuse me, a membership expansion strategy.

Where a leadership PAC may differ slightly is yes,

they want to expand the leadership -- or the membership of

their party, but they also want to make sure those who get the

most attention are ones who are most closely aligned either

ideologically or for political reasons to those managing the

leadership PACs.

Q. Are there any factors that affect whether a leadership PAC

is likely to focus on the Type 1 goal or the Type 2 goal?

A. The primary difference is if you were in the minority

party, you're going to be much more likely to pursue an

expansionist goal, because until you achieve majority status,

the organizational benefits of being in leadership cannot be

attained. So, those type of organizations tend to always seek

a more expansionist strategy. With power comes, you know --

or with larger numbers comes more authority.

Q. And so what is the implication there for the majority

party legislative -- or excuse me, the majority party

leadership PACs?

A. The majority party leadership PACs will also seek to

protect their majority status, but it does give them a little

bit more flexibility to pursue other smaller individualized

goals.

Q. So, you testified that the legislative caucus committees

referenced in the Illinois Election Code resemble leadership

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PACs. Why do you say that?

A. Because they're organized -- well, the ones for the four

senior leaders are specifically organized around the leader

themselves. If they were broad-based PACs that -- or caucus

committees that all the members came and appointed a board of

five or 10 members, that would make them a little less

individualized.

But what the statute here has done is actually

statutorily appointed those four as the ones who have that

specialized authority. So, it's a subtle difference, but I

think it's an important difference.

THE COURT: Have you reached a good breaking point,

or is there a certain line of questioning that you'd like to

continue with?

MR. HUEBERT: I think we can break now.

THE COURT: Okay. All right. Why don't we break for

lunch right now. We'll -- well, let me ask, about how much

longer do you think you'll have with Dr. Osborn?

MR. HUEBERT: It will be a while yet. Maybe an hour,

but I don't know.

THE COURT: Okay. All right. So, why don't we -- I

have to go to a meeting at 12:15. Why don't we plan on

starting at 1:20. Is that all right?

MR. HUEBERT: That's fine.

THE COURT: Okay. Anything anybody would like to

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discuss before we break?

MR. LOVELLETTE: Yes, your Honor. We were talking

during our previous break. I have let our witnesses know to

be here tomorrow. I don't know if I should change that.

We'll have at least one witness that could be here this

afternoon, but I don't know what --

THE COURT: Well, don't worry about it. If it were a

jury trial and we'd be putting the jury on ice for two hours,

it would be one thing, but it's not a concern with a bench

trial.

MR. LOVELLETTE: Thank you.

THE COURT: So, if they're down the street and they

want to come this afternoon, great. If it's just more

convenient to start tomorrow, we can start tomorrow with your

witnesses.

MR. LOVELLETTE: Thank you.

THE COURT: Anything else?

MR. HUEBERT: No, your Honor. Thank you.

THE COURT: Okay. You can step down, and we'll

resume at about -- let's say 1:25 just to be safe.

(Lunch recess had.)

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109

IN THE UNITED STATES DISTRICT COURT.

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ILLINOIS LIBERTY PAC, a

Political Action Committee

registered with the Illinois

State Board of Elections,

EDGAR BACHRACH, and KYLE

McCARTER,

Plaintiffs,

-vsLISA M. MADIGAN, Attorney

General of the State of

Illinois; WILLIAM McGUFFAGE,

Chariman of the Illinois

State Board of Elections;

JESSE R. SMART,

Vice-Chairman of the

Illinois State Board of

Elections; HAROLD D. BYERS,

Member of the Illinois State

Board of Elections; BETTY J.

COFFRIN, Member of the

Illinois State Board of

Elections; ERNEST L. GOWEN,

Member of the Illinois State

Board of Elections; JUDITH

C. RICE, Member of the

Illinois State Board of

Elections; BRYAN A.

SCHNEIDER, Member of the

Illinois State Board of

Elections; and CHARLES W.

SCHOLZ, Member of the

Illinois State Board of

Elections, all in their

official capacities,

Defendants.

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Case No. 12 C 5811

Chicago, Illinois

January 25, 2016

1:30 p.m.

TRANSCRIPT OF PROCEEDINGS - Trial

BEFORE THE HONORABLE GARY FEINERMAN

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110

APPEARANCES:

For the Plaintiffs: LIBERTY JUSTICE CENTER

BY: MR. JACOB H. HUEBERT

MR. JEFFREY M. SCHWAB

MR. JAMES McQUAID

190 South LaSalle Street

Suite 1630

Chicago, Illinois 60654

(312) 263-7668

For the Defendants: ILLINOIS ATTORNEY GENERAL'S OFFICE

BY: MS. JESSICA M. SCHELLER

MR. KEVIN R. LOVELLETTE

MR. T. ANDREW HORVAT

100 West Randolph Street

13th Floor

Chicago, Illinois 60601

(312) 814-2098

Court Reporter:

CHARLES R. ZANDI, CSR, RPR, FCRR

Official Court Reporter

United States District Court

219 South Dearborn Street, Suite 2128

Chicago, Illinois 60604

Telephone: (312) 435-5387

email: Charles_zandi@ilnd.uscourts.gov

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(Proceedings heard in open court:)

THE COURT: Everybody can be seated. Apologies. The

meeting ran about five minutes long.

So, should we resume with Dr. Osborn?

MR. HUEBERT: Yes, your Honor.

THE COURT: Is there anything we need to discuss

before we do that? No?

Okay. Dr. Osborn, if you could resume the stand,

please, and you're still under oath.

MARCUS BRIAN OSBORN, PLAINTIFFS' WITNESS, DULY SWORN.

DIRECT EXAMINATION (Resumed)

BY MR. HUEBERT:

Q. Dr. Osborn, in Illinois, is it possible for a legislative

leader to use his or her legislative caucus committee to serve

his or her own personal interests?

A. Yes, it is.

Q. And how is it possible?

A. Well, remember that the leader is designated as the

chairman or the director of the legislative caucus committee,

so he has discretion in how those funds are to be used. Now,

he always has to balance that with the needs of the caucus,

but it does give him a great deal of discretion on how he

utilizes those funds.

Q. Does legislative leaders' ability to use their legislative

caucus committees to serve their own personal interests affect

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the potential for quid pro quo corruption in the contributions

that they make from those committees?

A. Yes, it could. If -- if he or she has some personal

objectives, it makes he or she more susceptible to those

types of requests when interest groups or other individuals

are making contributions.

And similarly, if he has certain legislative or other

priorities that he wants, it allows him the ability to direct

those funds to legislators who are either supportive of his

effort or withhold those type of funds to those members who

are not.

Q. And does that affect the potential for quid pro quo

corruption inherent in campaign contributions from the

legislative leaders' caucus committees relative to the

potential for corruption inherent in the typical political

party contribution?

A. Because the contributions and the caucus committee is more

closely associated with the legislative authority, that risk

is enhanced, where a traditional political party is one step

removed from the policy-making, and so their goals are to

promote the party and aren't as specific to actual

legislating.

Q. You noted exclusivity as a difference between legislative

caucus committees and other political party committees under

Illinois law, the idea that a candidate can accept

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contributions from -- I'm sorry. Strike that.

A candidate in Illinois -- can a candidate in

Illinois accept contributions from more than one political

party committee other than a legislative caucus committee?

A. Yes, they can.

Q. But you testified that a candidate can only accept

contributions from one legislative caucus committee in an

election cycle?

A. That is correct.

Q. Does that difference affect the relative potential for

corruption inherent in legislative caucus committees'

contributions versus other political party committees'

contributions?

A. It could, because of the exclusivity factor. If a

candidate or a member is dependent on the legislative caucus

committee's contribution and they can't accept contributions

from other caucus committees, the level of dependency

increases; whereas, with the political parties, they can

accept from multiple political parties.

Q. You testified earlier that political party committees

tend to attract contributions from a variety of donors, a

diverse mix of donors. Is that what you would expect to see

in contributions to legislative caucus committees as well?

A. Not necessarily. You'll likely see a higher concentration

of interest group contributions because those contributions

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are more closely tied to the policy-making process.

Q. Are you aware of any evidence that legislative caucus

committees in Illinois have received heavy support from

special interests?

A. Yes. I reviewed the campaign finance reports for two of

the caucus committees and saw heavy reliance on campaign

contributions from interest groups and corporations.

Q. And that was from which caucus committees?

A. Yes.

Q. For which ones?

A. The Senate caucus committee and the House caucus

committee, Democratic Majority and the Senate Victory Fund, I

believe.

Q. And for which election cycle was that?

A. 2012.

Q. Are you sure it was 2012?

A. Let me check my --

Q. Well, do you not recall?

A. Oh, I'm sorry. Yes, it was the 2014 cycle.

Q. Did you find anything notable about the list of

contributions to the Senate Democratic Victory Fund caucus

committee that you reviewed?

A. There appear to be a very high reliance on PAC

contributions and corporate contributions.

Q. And have you reviewed a list of contributions to the

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Democratic Majority for the 2014 election cycle?

A. Yes, I did.

Q. And did you find anything notable about the list of

contributors to the Democratic Majority legislative caucus

committee that you reviewed?

A. Similarly, it was heavily reliant on interest group

contributions.

Q. If legislative caucus committees do receive a large

portion of their contributions from special interests, does

that affect the potential corruption associated with

legislative caucus committees?

A. Potentially, it could.

Q. How so?

A. Because interest groups are access-seeking organizations,

and they're looking to influence the public policy process,

and so heavy reliance on those contributions kind of mirrors

the policy-making process along with the electoral process.

Q. So, just so it's clear, would that affect the potential --

assuming a legislative caucus committee receives a large

portion of its contributions from interest groups, would that

affect the potential for corruption in the contributions that

the caucus committee in turn makes to candidates --

A. Potentially.

Q. -- after receiving that money?

A. Potentially, it could.

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Q. And just so it's clear, how so?

A. Because it's, in essence, a triangle between the donors,

the interest groups, the legislative caucus committee; and

the policy agenda of each of those groups, that cozy

relationship could lend itself to increased opportunities for

corruption.

Q. Have you -- excuse me.

Have you reviewed data regarding any contributions by

legislative caucus committees in Illinois to see what

contribution strategies those committees appear to be

pursuing?

A. Yes, I did.

Q. What contributions did you review?

A. I reviewed contributions for the 2012 election cycle from

the two legislative caucus committees managed by the

legislative leaders.

Q. By which legislative leaders?

A. The Speaker of the House and the Senate President, the

Democrat Victory fund and the Senate fund.

Q. Where did you obtain that information?

A. I requested that information from the Liberty Institute

For Justice as part of a follow-up report.

Q. Do you mean to say Liberty Justice Center, which is --

A. Excuse me, Liberty Justice Center.

Q. And why did you have the Liberty Justice Center compile

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that information?

A. It was an economic cost-savings. Instead of paying me to

collect that data, it was cheaper to have you guys assemble

it; and it is common in the academic world to use compiled

data as part of your analysis.

Q. Is the information that you reviewed contained in your

expert report?

A. It is.

Q. Where in your expert report?

A. It's in the appendices.

Q. Did you request data on these two legislative caucus

committees in the 2012 election cycle in particular?

A. Yes.

Q. Why did you request data from these two Democratic

legislative caucus committees in particular?

A. Because those two are the caucus committees associated

with the majority party who had institutional control over the

House and the Senate. The House Republicans and the Senate

Republicans also have caucus committees, but they don't have

the same level of organizational management control, so these

were the two caucus committees I was the most interested in.

Q. And why did you request data from the 2012 election cycle

rather than some other election cycle?

A. That was the latest election cycle, and it was the

election cycle post-redistricting as well.

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Q. Why did it matter that it was the latest election cycle?

A. In many cases, when you implement a campaign finance

change, it takes several cycles for the parties or

participants to fully understand the -- how to utilize the

tools, and so having the latest election cycle provided the

most up-to-date area for strategy.

Q. Within the contributions that you reviewed, did you focus

on any particular contributions within those groups?

A. Yes. I focused on the largest contributions that were

made by each group. That seemed to be reflective of the areas

and the races that were of most importance or highest value to

the caucus leaders.

Q. When you reviewed the contributions made by the Senate

Democratic Victory Committee in the 2012 primary and general

elections, did they appear to be consistent with any

particular type of strategy?

A. Yes. They were consistent with an expansion strategy,

electoral expansion strategy. The largest contributors tend

to be focused on some of the lower margin of victory races.

Although many of the races, the margin of victories were still

fairly large, but that's probably more a factor of the lack of

competitiveness in some of the other elections.

Q. When you reviewed contributions by the Democratic Majority

legislative caucus committee in the 2012 primary elections in

particular, did they appear to be consistent with any

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particular type of strategy?

A. Yes.

Q. And what did you observe with respect to the strategies

that appeared to be -- that the committee appeared to be

pursuing?

A. While there was evidence of an electoral expansion

strategy, there was also evidence that they -- that the

Democratic Majority committee participated in several primary

elections; and many of those primary elections, the general

elections were won overwhelmingly. So, it appears that there

is some evidence that there was some focus on primaries versus

just a general election expansion strategy.

Q. And were there any primaries in particular where the

Democratic Majority committee did not appear to be acting

consistently with a party expansion strategy?

A. Yes. The election of Sue Scherer and Maria Berrios.

THE COURT: Can you spell those names, please.

THE WITNESS: S-C-H-E-R-E-R, and Maria, M-A-R-I-A,

B-E-R-R-I-O-S.

BY MR. HUEBERT:

Q. And what in particular led you to conclude that the

contributions that were made in that -- in those races did not

appear to be consistent with a party expansion strategy?

A. They were large contributions in the primary, and the

margin of victory for those two candidates in the primary was

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very narrow, which suggested that there were competitive

candidates in that race and the caucus committee took sides in

that election.

Q. And I'm sorry if I didn't catch it. Did you remark just

now upon what happened after the primary races in the general

elections that those candidates faced?

A. Yes. Both of them won by wide margins in the general

election.

Q. And does that tell you anything about what strategy the

legislative caucus committee appeared to be pursuing with its

primary election contributions?

A. It appears they were trying to hand-select or be provided

a preference of Democratic candidates in the primary.

Q. And just so it's clear, do you mean a preference between

two different Democratic candidates?

A. Between, yes.

Q. If you could, please, turn to page 7 of Exhibit 1. Are

the two races you referred to in which the Democratic Majority

did not appear to be pursuing a pure party expansion strategy

referenced on this page?

A. Yes, they are.

Q. And is that in the table that's the topmost table on that

page?

A. That is correct.

Q. And just so it's clear, in that table where it says,

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"Contribution Amount," what does that signify?

A. The level of contribution from the caucus committee.

Q. And are the amounts that were given important to your

analysis?

A. They represented significant amounts of contributions. A

good way to think about it is for every dollar of

contribution, you know, for a $67,000 contribution, you can

distribute, you know, approximately 67,000 pieces of campaign

mail or other various tactics. So, they're significant

contributions.

Q. Would your opinion about the strategy that the committee

was pursuing change if the amounts given to these candidates

were lower than the amounts indicated here?

A. If they were extremely low contribution levels, yes; but

at the high -- high levels that they all are at, no.

Q. So, if they were all, say, the same amount as in the

last-ranked one here in the table, that wouldn't change your

analysis if the dollar amount had been the same for all of

them?

A. Probably not, no.

Q. When you reviewed contributions made by the Democratic

Majority legislative caucus committee in the 2012 general

election, did they appear to be consistent with any particular

type of strategy?

A. There was some evidence of an expansion strategy, but also

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evidence of an individualistic strategy, meaning that many of

the highest recipients of funds had wide margins of victory,

in excess of, you know, 5, 10 points, which suggested that

those candidates were not electorally vulnerable. And then

one of the candidates was actually an independent.

Q. To be clear, did you just testify that one of the

candidates to which the Democratic Majority gave funds in the

general election was not running as a member of the Democratic

Party?

A. That's correct.

Q. And was that -- and that candidate who was not the

Democratic -- who was not a Democratic Party candidate

received the fourth-highest amount of contributions in -- of

any candidate in that part of the -- in that general election?

A. Yes.

Q. You say that the margins of victory in some of these races

indicated that the committee was not pursuing a party

expansion strategy with those contributions. Can you explain

a little further why that is or why you reached that

conclusion?

A. Well, with large margins of victory, those are likely not

electorally vulnerable individuals. If you're pursuing a more

expansion strategy, you would dedicate high resources into

either high-risk districts or districts in which you, even if

it's a longer shot, have the ability to pick up a seat. And

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these appear to be more incumbent protection strategies than

more expansionist strategy.

Q. I'm sorry. When you say incumbent protection strategy,

what incumbent are you referring to?

A. The incumbent candidates.

Q. If the candidates won by a large margin, do they need

protection from --

A. They need lesser amounts of protection.

One of the things to think about in campaigns is

candidates will always want more resources and dollars, even

if they're in non-competitive races. And so there is a

benefit to members if they receive contributions, even in

non-challenging races. And so they can build up a war chest.

It helps protect them against future races, and it reduces

their individualized burden to actually fundraise for

themselves.

So, if you ask a candidate do they need more money,

their answer unless they're about ready to retire is always

going to be yes.

Q. And could they use those contributions in future primary

contests?

A. They could. They're free to use them as they see fit.

Q. When you gave your opinion earlier on the opportunities

for corruption that legislative caucus committees present

relative to other types of political committees, did you base

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that opinion on the election data that's included in the

appendices to your report?

A. Can you repeat the question?

Q. Sure. When you gave your opinion about the opportunities

for corruption that the structure of limits creates, did you

base that opinion on the campaign contribution data that's

included in the appendices to your report?

A. In small part, yes, but the foundation of the potential

for corruption is the link between the policy-making side and

the campaign finance side. That's the core element that

provides the greatest risk of the potential for corruption.

The election data helps to illustrate that there is

some examples where a purely expansionist strategy may have

occurred.

Q. Would your conclusions about the opportunities for

corruptions that legislative caucus committees present

relative to other types of political committees have been

different if the data you reviewed from the 2012 election

cycle had not shown any apparent efforts to pursue something

other than an expansionist strategy?

A. I'm sorry. Can you repeat the question?

Q. I'll see if I can rephrase it to be clearer.

If you had looked at the 2012 contribution data that

you reviewed and you didn't see anything that looked to you

like an attempt to pursue a strategy other than a caucus

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expansion strategy, if you had not seen evidence of that,

would that have changed your opinion about the opportunities

for corruption that the structure of limits creates?

A. No, because it's the structure that is the problem. A

leader may certain years have a more expansionist strategy;

but at any given time, they can restrict that strategy or

modify that strategy to pursue a more personalized agenda.

Q. Dr. Osborn, how would you describe the methodology you

applied in forming your opinion in this case?

A. It was a qualitative methodology. I was really focused on

looking at the structure of the campaign finance system. I

was not looking to create a predictive model about how

contributions would be directed. That would require a more

quantitative model.

Q. And what is a qualitative analysis?

A. It's an analysis where you review documents, contacts,

sometimes interviews, and make a conclusion about a structure

or a policy question.

Q. Have you used qualitative analysis in your scholarly work?

A. Yes. The book chapter I wrote with Dr. Nownes on

governors lobbying was primarily developed through long-form

interviews with governors' staff.

Q. Did you use qualitative analysis in your dissertation at

all?

A. Well, it was primarily a quantitative dissertation. There

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were elements of qualitative analysis in that.

Q. Is qualitative analysis a type of analysis that's used in

the political science field generally?

A. Yes.

Q. You also referenced quantitative analysis. To be clear,

what is quantitative analysis?

A. Quantitative analysis is analyzing numbers, taking

concepts and creating models where you can predict future

activities. So, it can be a range of different types of

analysis, but --

Q. In your field, is either of the two methods you've

mentioned, qualitative analysis and quantitative analysis,

inherently preferable to the other?

A. It depends on the research question.

Q. But in general, is either inherently preferable to the

other?

A. No.

Q. Why did you choose to do a qualitative analysis rather

than a quantitative analysis in this case?

A. For a couple of reasons. One, there wasn't a long history

of election and contribution data to create models off of; and

secondly, I was really more interested in analyzing how the

structure of the caucus committee worked, which lent itself to

a more qualitative design.

Q. So, when you applied a qualitative analysis in forming

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your opinion in this case, did you follow the same standard of

intellectual rigor that you would apply in your other

professional work?

A. Yes.

Q. You've testified that you based your opinion in this case

in part on the academic literature in your field. Did the

literature you relied on in forming your opinion include any

literature specifically addressing Illinois' system of

campaign contribution limits?

A. No, it did not, which is not surprising. A lot of the

state-specific literature addresses a variation of states, so

it's in essence a kind of hodgepodge of states. And then

there's a series of other literature that's more focused on

the congressional literature, and it's common for scholars to

use some of the congressional literature as well as the state

literature with the appropriate caveats. Obviously, you're

not comparing apples to apples when you're looking at Congress

and states, but there are some similarities that you can draw

conclusions from.

Q. So, to be clear, is there literature in the field on

Illinois' system that has been published and been created

after Illinois enacted the contribution limits we're

discussing here today?

A. Not that I'm aware of in scholarly journals.

Q. And did the lack of literature specifically addressing

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Illinois' system impair your ability to form your opinion?

A. No.

Q. You testified a moment ago that qualitative analysis can

involve interviews. Did you conduct any interviews as part of

your qualitative analysis in this case?

A. No.

Q. Why not?

A. One of the challenges with interviews when you're talking

about campaign corruption is witnesses may not be forthcoming

about their real motives. In addition, if you're asking

members of the legislature to say do they have concerns that

they have been overly influenced by the Speaker or President's

contributions, that's a heavy request to make of a member to

get truly objective and forthright answers. So, that seemed

like an approach that could be wrought with unreliability.

Q. In your -- the analysis that you performed for this case,

did you look at the voting records of any Illinois

legislators?

A. No. That wasn't the research question -- while there is a

healthy literature about how PAC contributions relate to

voting records, I did not look to see if X contributions led

to a certain voting result. The literature is very mixed and

creates a series of methodological challenges when you attempt

to do that.

Q. In your analysis for this case, did you compare data from

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Illinois elections with data from federal elections?

A. No, I did not.

Q. And why not?

A. The focus was on the Illinois example and not the federal

system.

Q. And is there anything that would have limited your ability

to compare data in Illinois to data in the federal system?

Would that have been difficult?

A. Well, the question is: What are you trying to prove or

determine if you're comparing -- if there are similar

structures or -- there may be some ability to do that, but in

this context, we were focused on the Illinois system and not

trying to do a comparative analysis between other states or

the federal system.

Q. Given that this act came into being in 2009, would there

be enough data from Illinois for you to make a meaningful

comparison with federal data?

A. It would depend on what your research question was, but I

don't think so, no.

Q. In your analysis for this case, did you compare data from

Illinois elections with data from other states' elections?

A. No.

Q. Why not?

A. The question was: Is there a structure that is -- creates

the potential for corruption? It wasn't whether or not

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Illinois' structure looks like other states'.

Q. Before we conclude, let's return once more to the

structure created by Illinois' campaign finance laws. Does

that structure appear to be designed to limit corruption?

A. While it created a series of contribution limits, it

created a major window to -- of more unregulated contributions

through the caucus committee system. While some of the limits

may have a beneficial impact on the potential for corruption,

when combined with the presence of the caucus committee

system, it creates some real new opportunities for corruption

that did not exist in the prior system.

Q. Does the structure of limits appear to be designed to

serve any particular purpose?

A. In particular relation to the caucus committee structure,

it appears to be designed to make sure that fundraising power

is concentrated in the most senior leaders of the caucuses.

Q. And why do you say that?

A. Because the act gave specific authority for the Speaker,

the President, and the two minority leaders to create their

own caucus committees. If the act was simply designed to make

sure that you're limiting interest group access, they could

have just relied on the existing Democratic and Republican

party structures to provide mechanisms to fund more

legislative-specific campaign committees.

Q. Does the exclusivity feature you referenced earlier have

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any bearing on your conclusion about what purpose the limits

are designed to serve?

A. It appears the exclusivity provision is a tool that can

enhance the power of the largest caucus committees or the

Speaker, President, and minority-leader-managed caucus

committees.

MR. HUEBERT: I think I'm about done. Let me just

take a moment here to make sure.

Thank you, Dr. Osborn.

THE COURT: Okay. Thank you.

Defendants?

CROSS-EXAMINATION

BY MS. SCHELLER:

Q. Good afternoon, Dr. Osborn.

A. Good afternoon.

Q. My name is Jessica Scheller. I'm one of the Assistant

Attorneys General who's representing the defendants in this

case. I'm going to be asking you just a few more questions

this afternoon.

I think you can likely hear me, but will you let me

know if you have difficulty hearing me?

A. You're good.

Q. Okay. Are you hearing me okay right now?

A. Yes, I am.

THE COURT: And if you can move a little bit closer.

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Thank you.

THE WITNESS: Okay.

BY MS. SCHELLER:

Q. Perfect. So, Dr. Osborn, I want to begin with the two

examples that you cited where, according to your report,

legislative caucus committees engaged in spending patterns

which were not consistent with party expansion. Do you recall

your testimony on that point?

A. I do.

Q. Okay. And if I'm understanding your opinions correctly,

there is some statistical significance to the margin of

victory in the general election which led you to that

conclusion. Am I correct on that as well?

A. There is a significance to the margin of victory. Larger

margins of victory in the general election indicate an

electorally safer seat, yes.

Q. So, in your report, what margin of victory did you assign

to an electorally safer seat in the general election for the

two contributions that you opined upon?

A. I didn't express the -- actually, I may have. But I

usually use 5 percent.

Q. Okay. So, in the general election, if a candidate wins by

a margin of victory greater than 5 percent, in your opinion,

that victory is indicative that that was a politically safe

seat?

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A. It is more indicative, yes, the larger the margin of

victory as it grows. The closer you are to 5 means more

competition.

Q. And is this a number that you've selected based upon

more -- my math is not great today, 20-plus years as a

political consultant or operative, or what do you base that

number upon?

A. Yes, I think when I advise candidates about the

contributions and what races are electorally at risk, that's

been the rule of thumb.

Q. Okay. And in your expertise, you've worked both in state

electoral politics and national as well?

A. Primarily state, but some federal.

Q. Okay. So, I want to look at that 5 percent margin of

victory in the general election indicating that we could have

predicted from the outset of the primaries who that winner was

going to be.

Are you familiar with the 2008 presidential election,

Dr. Osborn?

A. Generally.

Q. And are you generally aware that President Obama defeated

Senator McCain by a margin of victory greater than 5 percent?

A. You have to be more specific, because you have to take

into account the electoral college. So, it certainly -- if

you're taking the average of all of the states, that is a --

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it's apples and oranges. It's in each state how large the

margin of victory was.

Q. I will be fair to you by making my question far more

specific.

A. Okay.

Q. Would you agree with me that President Obama obtained 365

electoral votes, and that Senator McCain won 173?

A. I haven't -- out of my recollection, I don't remember

exactly what he won by, but that does not seem out of

question.

Q. And if the popular vote numbers reflected a margin of

victory for Senator -- excuse me, President Obama of -- I'll

list the vote numbers, 69,498,516 votes to Senator McCain's

59,948,323 votes, the victory percentages would be about 52.9

to 45.7. Does that sound about right to you?

A. Again, because of the electoral college, the national

popular vote is somewhat irrelevant.

Q. The margin of victory for that particular election was

greater than 5 percent, right?

A. Yes.

Q. Okay. So, according to the analysis that you've employed

here for your model, we all should have been able to predict

that outcome dating all the way back to the time before the

Democratic primaries began, correct?

A. Not necessarily, but at the lower level of the scale,

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that's a more competitive race, but --

Q. Well, in this particular race, if we had picked a winner

at the beginning of the primary seasons for the Democratic

primary, we would not have been picking President Obama,

correct?

A. I can't recall the details of that election, but --

Q. I believe that Hillary Clinton for many months was

referred to as the presumptive nominee.

A. Yes, I would agree with that.

Q. And after Ms. Clinton was referred to as the presumptive

nominee, both President Obama and I suppose I should refer to

her as Secretary of State Clinton -- it's unclear; she's held

many titles -- engaged in unprecedented campaign fundraising,

right?

A. Yes.

Q. And there was unprecedented participation in the primary,

also, right?

A. Yes.

Q. And that's because, among other reasons, the members of

the Democratic Party wanted to pick the candidate who was most

likely to win the general election, right?

A. That's one of the reasons. But what you also will see in

the way they distributed their campaign contributions,

actually the way they spent, those contributions were

dedicated in the I think 11 or 12 most electorally competitive

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seats in the general election. So, they focused those dollars

in states like Ohio, Florida, and states which were seen as

electorally safe for one party or the other did not see much

campaign spending.

Q. But that's not true in the primary race for 2008. Is that

what you're referring to?

A. No. In the primary -- the primary system is --

Q. I'm sorry. I misunderstood what you were referring to

with regard to states, so --

A. If you're talking about fundraising for the general

election, my point was that the distribution of funds in the

general election went to electorally competitive states where,

for electoral college purposes, they needed to maximize votes.

They did not go to states where there was huge registration or

polling advantages in one state or another.

For example, the Obama campaign did not spend a lot

of resources in Arizona.

Q. And my point, I guess, is, Dr. Osborn, that your entire

theory that these legislative caucus committees' contributions

are not related to party expansion relies upon the premise

that those contributions could have predicted the winner of a

general election when they were made far before the primary

had been completed, correct?

A. That sounds like your assertion, yes.

Q. Would you agree that that's consistent with your opinion?

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137

A. You also have to look at the specific timing of when the

contributions occurred, and so super early contributions can

be treated differently than later contributions.

Q. And your report doesn't analyze the timing of when the

contributions occurred with regard to the two specific

candidates you cited in your report, right?

A. No, I did not.

Q. It does not?

A. It does not.

Q. And your report doesn't discuss the qualitative

differences in the platforms of the candidates you've

discussed in your report, right?

A. That is correct.

Q. We don't know a single thing, based on your report, about

what the political platform was of Sue Scherer, right? Is

that correct?

A. That is correct.

Q. We don't know anything about her challenger, right?

A. That's correct.

Q. And we don't know a single thing about the opponent that

Ms. Scherer faced in the general election, right?

A. Other than she beat him or her very badly.

Q. So, there's nothing in your report which would contradict

a strategy by the legislative caucus committee of funding the

candidate most likely to prevail in the general election, is

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138

there?

A. Given the fact that both her and her opponent were very

close in the primary, it demonstrates to me that there was

competition even amongst the Democratic Party, and so it is

clearly not that clear-cut as you're suggesting.

Q. Well, competition among the Democratic Party doesn't

necessarily mean electability in a general election, though,

does it, right? Because Democrats tend to like Democrats with

Democratic ideologies; would you agree with that?

A. Yes.

Q. But electability in the general election also frequently

depends upon either candidate being able to pull voters from

the middle, independent voters, centrist voters, left-leaning

Republicans, right-leaning Democrats, et cetera?

A. That is correct.

Q. All right. I'd like to move on now to focus a little bit

on your qualitative report. So, you mentioned that your

report was qualitative because you wanted to analyze the

structure of how the election code worked, correct?

A. Um-hum.

Q. And despite this espoused desire to learn how the election

code worked, you interviewed absolutely nobody?

A. That is correct.

Q. Including but not limited to Senator McCarter, your own

client, correct?

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139

A. That is correct.

MR. HUEBERT: Objection. It's not in the record that

Senator McCarter is Mr. Osborn's client, assumes facts not in

evidence.

THE COURT: I think what you meant is -- I think you

might be equating counsel with Dr. Osborn, and while Senator

McCarter is counsel's client, I'm not -- I think what counsel

is saying is that that doesn't necessarily mean that Senator

McCarter is Dr. Osborn's client.

MS. SCHELLER: I understand counsel's objections,

your Honor. I would say Senator McCarter is a plaintiff in

this case. Dr. Osborn has been retained to testify on behalf

of the plaintiffs. It seems like a logical connection.

THE COURT: I think what you're saying is that an

expert witness, a retained opinion witness has a client, and

I'm not sure that's the right term.

MS. SCHELLER: I can rephrase it.

THE COURT: Okay.

BY MS. SCHELLER:

Q. You did not even interview Senator McCarter, one of the

plaintiffs who retained you to testify in this case?

A. No. Taking and just cherry-picking random interviews

would not be part of a thoughtful qualitative strategy.

Q. And so instead, you did not try to interview anybody?

A. That is correct.

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140

Q. Now, you also testified that you wanted to review

literature concerning legislative caucus committees, and that

was the method pursuant to which you were going to analyze the

election code and the structure of legislative caucus

committees, correct?

A. Yes.

Q. And yet you did not review any literature concerning

Illinois -- excuse me, Illinois caucus committees, right?

A. Correct.

Q. And you did not review any literature written after

Illinois legislative caucus committees were created, right?

A. That is correct.

Q. Now, aside from this, in your qualitative analysis, you

didn't conduct any type of analytical analysis comparing

congressional campaign committees to Illinois legislative

caucus committees and comparing their spending habits, right?

A. No.

Q. You did, however, review the financial data provided to

you by plaintiffs' counsel, the Liberty Justice Center, right?

A. Yes.

Q. And from that data they provided to you, you either

incorporated the data into tables in your report or used the

Liberty Justice Center's tables in your report, right?

A. I don't believe I used any of the Liberty Center's

specific tables.

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141

Q. It was somewhat unclear in your deposition, so I'm

clarifying. So just the appendices?

A. As appendices, yes.

Actually let me correct the question. I did modify

the table they had on staff spending and incorporated that

into my report, so --

Q. So, the table on staff spending that's incorporated into

your report was actually a table generated by plaintiffs'

counsel, which then you modified and incorporated into your

report?

A. I believe so, yes.

Q. Is there anything else in your report that was generated

by plaintiffs' counsel which you took and either incorporated

whole hog or modified slightly and plugged in to your report?

A. Just the contribution data that I requested.

Q. And aside from the contribution data and the table,

everything else is your own?

A. Or a source document, yes.

Q. So, we're going to switch gears entirely now, and I'd like

to direct your attention to what Illinois law discusses or

defines as political party committees. Okay?

A. Okay.

Q. And if I'm understanding your direct examination properly,

you have reviewed that area and offered opinions on political

party committees here today?

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142

A. Yes.

Q. Okay. So, setting aside legislative caucus committees

just for the moment, let's turn to other political party

committees as defined under Illinois law. Okay?

A. Okay.

Q. So, you would agree with me, would you not, that the state

central committee of a political party is an Illinois

political party committee?

A. Yes.

Q. And the state central committee has the same contribution

limits or restrictions as a legislative caucus committee,

right?

A. With some exceptions, yes.

Q. Okay. And your report doesn't address any specific

conduct of any state central committee for any Democrat in any

race in any election, right?

A. That's correct.

Q. It doesn't address the conduct of any Republican state

central committee for any official in any race?

A. That is correct.

Q. It doesn't look at Libertarians, right?

A. Correct.

Q. The Green Party? Your report does not opine on how anyone

is elected into any position of leadership within a state

central political party committee, does it?

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143

A. No, it does not.

Q. There's zero analysis in your report as to how someone

obtains a position of leadership in a state central political

party committee, right?

A. That is correct.

Q. And you also don't discuss what a state central political

party can do, right?

A. Not in much detail, no.

Q. You don't review any contributions made by any state

central committee to any candidate in any race?

A. I do not.

Q. Now, a political party committee under Illinois law is

also a county central committee, right?

A. That is correct.

Q. Your report doesn't address the specific conduct of any

county central committee under Illinois law, does it?

A. No, it does not.

Q. You're not familiar with the power structure of a county

central committee, are you?

A. Not in detail, no.

Q. Your report contains absolutely no discussion of them,

does it?

A. No.

Q. So, you don't know who holds positions of power or

leadership in a county central committee for the Democrats?

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144

A. No.

Q. Republicans?

A. No.

Q. Or any other party?

A. No.

Q. Your report doesn't review the actions of any county

central committee with regard to campaign spending, right?

A. That's correct.

Q. And your report does not contain any analysis of a county

central committee insofar as it compares to some of the other

legal structures you discussed in your direct examination,

right?

A. That is correct.

Q. You don't compare county central committees to PACs,

right?

A. Correct.

Q. You don't talk about the different types of activities

that county central committees engage in?

A. That's correct.

Q. And that follows through, really, for every political

party definition under Illinois law except for legislative

caucus committees, right?

A. That is correct.

Q. Your report doesn't address ward committeemen, does it?

A. No.

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Osborn - cross

145

Q. Are you aware of what a ward committeeman is?

A. A ward committeeman is like a -- in essence like a

precinct committeeman.

Q. How many wards are there in Chicago?

A. I do not know.

Q. I'm sorry?

A. I do not know.

Q. And you also do not know who the committeeman is for any

particular ward, right?

A. I do not.

Q. You couldn't say in your report whether those committeemen

are aldermen who sit on the City Council, right?

A. They could be.

Q. And they could be somebody else, correct?

A. That's correct.

Q. That's simply not something that you analyzed in reaching

any of the opinions or conclusions in your report?

A. That is correct.

Q. It's also not something that you analyzed in determining

whether legislative caucus committees were more similar to

political party committees or to PACs, correct?

A. That is correct.

Q. And the same would hold true for any township

committeemen, right?

A. That is correct.

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146

Q. Your report is similarly not addressing political party

committees as it applies to township committeemen?

A. That is correct.

Q. And as was the case with the other political party

committees, your report does not address how county central

committees, ward committeemen, or township committees have

spent on any particular campaign under the contribution

requirement -- excuse me, contribution limitations under the

election code, right?

A. That is correct.

Q. So, I want to direct your attention now to our infamous

legislative caucus committees. And we've spent a lot of time

discussing those, right? So, just briefly, they're defined

under Illinois law as a type of political party committee,

correct?

A. Yes.

Q. And your report doesn't identify any statutory

distinctions between legislative caucus committees and

political party committees, right?

A. Say that again?

Q. So, your report doesn't identify any legal distinguishers

between legal -- excuse me, legislative caucus committees and

political party committees? So, it's not as though they're

defined the same under the election code; but somewhere else

in the election code, it says something else, and you've

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147

identified that in your report, right?

A. I've identified the definition of caucus committee in my

report.

Q. Right. But you haven't cited us in your report to any

provision of Illinois law which suggests that the definition

of "legislative caucus committee" was fabricated just for the

election code and it means something different elsewhere?

A. No.

Q. So, there are a few different ways to establish

legislative caucus committees under the act, right?

A. Correct.

Q. And the President of the Senate may form a legislative

caucus committee if he or she so chooses, right?

A. Correct.

Q. And you may or may not be aware, I assume you are, that

the President of the Senate in Illinois is an elected

position, right?

A. Yes.

Q. And they're elected by the members of their caucus,

correct?

A. Yes, like most legislatures.

Q. And the same, then, would be true for the minority leader

of any party in the Senate, right?

A. I agree.

Q. They may also form a legislative caucus committee if he or

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Osborn - cross

148

she so chooses, correct?

A. That is correct.

Q. And if for some reason the majority or the minority leader

lost in a general election, someone new would have to step in

to that seat, correct?

A. That's correct.

Q. So, if, for example, the legislative caucus committee

controlled by the minority leader of the Senate was engaging

in corruption, the electorate could remove that person from

office, correct?

A. Of course they could.

Q. And that would be the end of it, right?

A. Yes.

Q. Now, the same power structures hold true throughout the

House, correct? Elected Speaker, may form a legislative

caucus committee, right?

A. Correct.

Q. Minority leader, may form a legislative caucus committee?

A. Correct.

Q. Each is elected by their respective caucuses, right?

A. Correct.

Q. And each may be removed, right?

A. Correct.

Q. Either by the members of their caucus?

A. Yes.

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149

Q. Or by the general electorate?

A. Correct.

Q. However, you would agree -- and I think we walked through

it a little bit with Senator McCarter -- that it's not just

leadership in the Illinois Congress who can form a legislative

caucus committee, right?

A. You mean the General Assembly? You said Congress.

Q. I meant both, but I'll be specific.

A. Okay.

Q. So, it's not just leadership in Illinois that can form a

legislative caucus committee, right?

A. Correct.

Q. If I were an Illinois senator and I could find four

like-minded individuals, we could form a caucus committee?

A. Yes, you could.

Q. There is no other barrier to entry, correct?

A. Barrier to entry, correct.

Q. So we're not only allowed to form a legislative caucus

committee if we are in the majority party, right?

A. That's correct.

Q. We could be the only five people who caucus of that party,

and we would be allowed to form one, right?

A. Yes.

Q. So, say there are five members of the Green Party?

THE COURT: If you could --

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150

THE WITNESS: I'm sorry. Yes.

THE COURT: Thank you.

BY MS. SCHELLER:

Q. So, there are five members of the Green Party and we say

we want to caucus. So long as there are five of us, we can

form a legislative caucus committee, correct?

A. That is correct.

Q. And similarly, if there are 25 Republican senators and

five of us say, "You know what, we're really going to focus on

this one issue, and we're going to form a legislative caucus

committee, and we are going to advance that agenda because

that is what the electorate wants," we would be free to do

that as well?

A. That's correct.

Q. And then in the House of Representatives, the same holds

true, the only difference being if I were a congresswoman, I

would have to persuade nine people to join me, correct?

A. That is correct.

Q. The House legislative caucus committee requires 10 people?

A. Yes.

THE COURT: You mean a representative?

MS. SCHELLER: Yes.

BY MS. SCHELLER:

Q. And that is the only barrier to entry for forming a

legislative caucus committee in the Illinois House of

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Osborn - cross

151

Representatives, right?

A. Yes.

Q. There's no restriction based upon viewpoint?

A. No.

Q. Now, for the purposes of your report, you seem to focus

primarily on two legislative caucus committees, right?

A. Yes.

Q. Both controlled by Democrats?

A. Yes, because they're the majority party.

Q. You are aware, though, that there were six legislative

caucus committees at the time you prepared your report?

A. I was aware of four of them.

Q. Did you look into how many there were prior to writing

your report?

A. No, I did not.

Q. Why not?

A. I was focused on the caucus committees that had the

institutional control of the body.

Q. So, would it be fair to say that your report doesn't

really address the structure or the behavior of legislative

campaign caucuses generally; you were focused exclusively on

those of the leadership party with the majority?

A. There are elements that talk about -- in my report about

if you form some of the smaller caucus committees, that --

that that is an option and how that could be designed around

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Osborn - cross

152

legislative committee structures. But generally speaking, my

focus was on the legislative leaders' caucus committees.

Q. Right. So, you did not analyze or review the structure of

any other legislative caucus committee?

A. No, I did not.

Q. Your report does not reference any specific dangers

created by legislative caucus committees formed by a

non-leadership group of legislators, does it?

A. Yes, it does. I talked about if a minority -- or if a

subset of the caucus created a caucus around a particular

committee, that could create some problematic aspects.

The same -- I do believe the same potential for

corruption could occur in the minority party. It's not party

specific. But the potential for corruption is obviously

higher in those who have the most authority and influence.

So, if it was a Republican legislature, the structural

concerns would still be the same. It's not a party-specific

issue.

Q. That is correct. Your report does reference that that

could happen; however, in your review for your report, you did

not find any specific circumstance of that type of corruption

taking place in Illinois?

A. No, I did not.

Q. So, I want to turn your attention now to our discussion of

legislative caucus committees, and we've heard the word

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153

"leadership PAC," and I think I even heard legislative caucus

PAC today, the phrase "legislative caucus PAC." But for the

purposes of Illinois law, you would agree with me that there's

a PAC, right?

A. Correct.

Q. And legislative caucus committees?

A. Correct.

Q. And there are corporations, right?

A. Correct.

Q. Individuals?

A. Yes.

Q. And candidates, right?

A. Yes. Did you mention political action committees?

Q. I did.

A. Okay.

Q. And those are the groups that we're primarily focused upon

here, right? We have plaintiffs, who are a PAC, a candidate,

an individual, and we're defending a statute on the other side

related to legislative caucus committees, right?

A. You are right.

Q. Okay. So, you would agree with me that PACs, or political

action committees, are referred to in your report as special

interest groups?

A. They can be, yes.

Q. And what is a special interest group?

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154

A. It could be a corporation, an individual, or group of

individuals who have a policy or political agenda.

Q. A policy -- I'm sorry. I didn't hear you.

A. I'm sorry. A policy or political agenda.

Q. Okay. And that policy or political agenda advanced by

that individual or group of individuals or corporations does

not need to be tied to the desires of the democratic majority

of whatever geographical area that PAC occupies?

A. You are correct.

Q. And in this case, I believe Illinois Liberty PAC described

their special interest as a free market system, is that

correct?

MR. HUEBERT: Objection. Dr. Osborn wasn't present

for that testimony.

THE COURT: Hold on. Counsel?

MS. SCHELLER: I'm thinking.

BY MS. SCHELLER:

Q. Are you familiar with what type of --

THE COURT: So, the last question was --

MS. SCHELLER: I'll withdraw that.

THE COURT: The last question was withdrawn, and

you're going on to your next question.

MS. SCHELLER: Right.

BY MS. SCHELLER:

Q. Are you aware of what type of special interest group

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155

Illinois Liberty PAC might be?

A. Generally, yes.

Q. And what do you generally know about Illinois Liberty PAC

insofar as it's a special interest group?

A. It's a free market advocacy group, but much more than

that, I do not know.

Q. What does it mean to be a free market advocacy group?

A. It means that you believe in free market principles,

markets -- they tend to be associated with conservative

movements.

Q. So, what are some free market principles?

A. Deregulation, less taxes -- I mean, there's a host of free

market principles -- less government, all of those type of

concepts are pretty core to that ideology.

Q. And in your opinion, to the extent you have one, are free

market interest groups on the same side or a different side as

groups that advocate for collective bargaining?

A. Opposite side.

Q. So, when you're acting as the chairperson of a special

interest group, nobody outside of that interest group has to

approve of your ideological message, right?

A. That is correct.

Q. It can help with fundraising, correct?

A. Yes.

Q. But an independently wealthy chairperson of a PAC doesn't

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156

require the majority of the electorate to sign on to their

ideas?

A. That is correct.

Q. So, if we're looking at special interest groups, I want to

go to the concept of quid pro quo corruption. Okay?

So, if I am engaging in quid pro quo corruption as

the chairperson of a political action committee and I approach

a Republican who shares my free market ideology, right? Are

you with me so far? And I offer to give them money in

exchange for voting against collective bargaining, is that

quid pro quo corruption?

A. Not necessarily. If you're supporting -- if you're

providing resources to a candidate that is consistent with

their ideology, that's a campaign contribution. I wouldn't

consider that quid pro quo corruption.

Q. So, taking that to the next logical step, let's look at

those contributions from SEIU, which you reference in your

report, to the Democratic legislative caucus committees. You

would agree with me that collective bargaining tends to be

consistent with Democratic principles, yes?

A. With many Democrats, yes.

Q. And so a donation from a proponent of collective

bargaining to a legislative caucus committee which

ideologically tends to vote in favor of collective bargaining

is not necessarily indicative of the appearance of quid pro

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157

quo corruption, right?

A. May not, no.

Q. Right. Because in order to be corrupt, the money has to

be in exchange for a change in the vote, right?

A. Yes.

Q. So, I'm not corrupting anyone if I'm giving them money and

they're going to vote the same way they would have had they

not received the money?

A. I would agree with that.

Q. Now, a great deal of your direct exam before we took the

break dealt with the carrot and stick principle or the carrot

and the hammer principle, right? Do you have a preferred

metaphor?

A. It's your choice.

Q. We'll do the carrot and the hammer for today.

You would agree with me, would you not, that the

Speaker of the House in the State of Illinois is going to have

an extraordinary amount of both carrot and stick regardless of

his or her position as the chair of a legislative caucus

committee?

A. Agreed.

Q. And the same would hold true for the Speaker of the House

of Representatives of the United States of America, right?

A. Yes.

Q. And if we look to that particular position, there's the

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158

Speaker of the United States House, and that person has a

deputy. Do you know what that person is called?

A. I think in the U.S. -- well, it's the majority leader,

majority whip, and it moves down. There's a whole detailed

structure within, at least, congressional.

Q. And are you familiar with the background for why that

person is called the whip?

A. Yes.

Q. And what is that?

A. Their job is to collect votes for the caucus on key

issues. They count votes.

Q. And to euphemistically whip people into shape, right?

A. Absolutely.

Q. Cause them to toe the line?

A. Absolutely.

Q. And so the political goals that you describe party

leadership engaging in in Illinois are really no different,

right?

A. If you focus just on the policy levers, they're similar

across Congress and most states. Leadership has a series of

organizational hammers and carrots.

Q. And your report does not suggest that the leader would be

less powerful if they didn't have that particular hammer or

carrot, does it?

A. Which hammer or carrot are you referring to?

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Osborn - cross

159

Q. The legislative caucus committee, the control of the

caucus committee?

A. I think it enhances their authority because it gives them

fundraising structure; but they will always have those

organizational controls, that is correct.

Q. And if there wasn't a legislative caucus committee, the

Speaker of the House or the President of the Senate or the

Minority Leader of the Senate, the Minority Leader of the

House, would have other manners pursuant to which they could

assist their membership in fundraising?

A. Oh, absolutely, yes.

Q. Now, when I asked you about the qualitative nature of your

report, I specifically asked whether you compared legislative

caucus committees' financial spending to that of their federal

counterpart, congressional campaign committees. Do you recall

that?

A. Yes.

Q. But I don't believe I asked the follow-up question, which

is: You didn't conduct any comparison between those two

entities at all, right?

A. No. The only reference that I had is I pulled some

literature about leadership PACs, but comparing how Congress

operates and the Illinois legislature, no.

Q. And under Illinois law, there is no such thing as a

leadership PAC, is there?

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Osborn - cross

160

A. Not that I'm aware of.

Q. Now, in your deposition, I believe you stated and you

opine in your report that you discounted data from the

Illinois House Republican committee because it was more likely

to show a purely expansionist strategy.

A. That is correct.

Q. So, when you say you discounted data, do you mean you

ignored it?

A. No. I didn't look at House and Senate minority party

caucus committees, so discounted is probably a -- I did not

review is a more appropriate term.

Q. Why not?

A. I was most interested in the caucus committees that had

both institutional control and -- actually, the committees

that have institutional control.

Q. Now, I want to get back to the concept of an election

cycle and a candidate's ability to accept from exclusively one

legislative caucus committee.

I don't believe that your report contains a

definition under Illinois law of an election cycle. Have I

missed it?

A. You have not.

Q. So, you are not able to tell us as you sit here today, at

least not through your report, what an Illinois election cycle

is?

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Osborn - cross

161

A. It was not in my report.

Q. And you also don't mention in your report whether an

election cycle includes a primary and the general election or

just a primary or a general election, correct?

A. You are correct.

Q. So, your report also does not notify us whether a party

might be able to accept contributions from one legislative

caucus committee for a primary and another for the general

election?

A. It does not.

Q. You would agree with me that the political -- that

political parties, in addition to expanding the number of

seats that they possess in any given legislative body, also

seek to shape policy?

A. At a very high level, yes. They're not transactional in

the sense of detailed, specific policies. They do highly

salient policies, big picture issues. They don't get in the

weeds of the details of a lot of policy-making.

Q. So, be more specific. In your opinion, political parties

do get into X, but don't get into Y.

A. It is common for them to have a policy platform of big

issues that their members provide kind of a basis for

membership so that they know what it's like to be a Democrat

or to be a Republican.

Q. So, for example, a political party like the Democrats

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Osborn - cross

162

might say, "You know, if you're a Democrat, the political

party thinks you believe in collective bargaining," right?

A. That's certainly possible, yes.

Q. But in your opinion, the party would not get down into the

weeds such as, "The exclusive representative for this

bargaining unit will be So-and-So"?

A. I think that's a fair example, yes.

Q. Now, your report opines that in the 2012 general election,

the Democratic Majority committee utilized primarily an

expansion strategy, right?

A. The Democratic Majority?

THE COURT: Is that the Senate or the House?

THE WITNESS: The House.

BY MS. SCHELLER:

Q. That's the House.

A. Used an expansionist and a personalized strategy, so both.

The Senate used a more exclusive expansionist package.

Q. Okay. So, in your report, I'm going to direct you to

page 7. If you look just below Table 3, do you agree with me

that in your report, you opine, "In the general election, the

Democratic Majority committee utilized primarily a caucus

expansion strategy"?

A. Yes.

Q. And then you included an analysis of those two

expenditures that we spoke about, right?

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Osborn - cross

163

A. Yes.

Q. The races involving Ms. Scherer?

A. Yes.

Q. And Ms. Berrios?

And then with regard to the Democratic Victory

Fund --

THE COURT: And which one is which?

MS. SCHELLER: Majority is the House. Victory Fund

is the Senate.

BY MS. SCHELLER:

Q. Am I correct, Dr. Osborn?

A. Yes, it's the Senate Victory Fund.

Q. And you said the Senate Victory Fund engaged in an

expansion strategy as well?

A. When looking at their top contributions, yes.

When looking at their top contributions, yes.

Q. Thank you. So, when you were looking at the legislative

caucus committees and preparing your qualitative report, we

discussed some of the things that you did and some of the

things that you did not do. But I'd like to frame your

reference back to that. Okay?

THE COURT: Actually, is this a good breaking point?

MS. SCHELLER: Yeah.

THE COURT: We've been going for about an hour 25, so

why don't we take a 15-minute break, and we'll come back at

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Osborn - cross

164

3:10.

MS. SCHELLER: And I anticipate having about

10 minutes.

THE COURT: 10 minutes? Okay. And then will there

be any redirect?

MR. HUEBERT: A little bit.

THE COURT: Okay. Very good. You can step down,

Dr. Osborn, and we'll resume in about 15 minutes.

(Recess had.)

THE COURT: Are you ready to proceed, Dr. Osborn?

THE WITNESS: Yes, I am.

THE COURT: Do you want us to hold off for a couple

of seconds? Do you have something --

THE WITNESS: No, no, I just have a mint in my mouth,

but I'll be fine.

THE COURT: Okay.

THE WITNESS: If I'm mumbling, just let me know.

THE COURT: Okay.

BY MS. SCHELLER:

Q. Dr. Osborn, picking up where we left off, when you

generated this report, you did not review the voting record of

any Illinois legislator, correct?

A. No, I did not.

Q. And that would include you didn't look into any indication

as to how a legislator was going to vote before a particular

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Osborn - cross

165

contribution, right?

A. That is correct.

Q. And you didn't look at how they voted after?

A. That is correct.

Q. Now, your report does not contain an opinion that the

election code in Illinois promotes the view of one political

party over another, right?

A. It does not.

Q. And it does not contain the opinion that the election code

as written promotes any particular vantage point over another?

A. No.

Q. And your report does not contain an opinion that the

election code designates which speaker or which vantage point

will control in any chamber of the legislature, either as a

majority or minority leader?

A. No.

Q. Now, when you were reviewing documents to prepare for your

report, you indicated that you reviewed articles and other

writings about the behaviors of these organizations, right?

A. Yes, I did.

Q. However, your review did not include any legal writings

about the behaviors of political parties or special interest

groups, correct?

A. That is correct.

Q. So, for example, in your report, you did not review

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166

McConnell versus FEC, 540 U.S. 188?

A. I did not.

Q. How, if at all, would it change your report if the Supreme

Court in McConnell said that Congress is fully entitled to

consider the real world differences between political parties

and interest groups when crafting a system of campaign finance

regulation?

A. It would not change my opinion.

Q. And how, if at all, would it change your opinion if in

that same case, when comparing the behaviors of interest

groups to political parties, the Supreme Court said that

interest groups do not select slates of candidates for

elections?

A. I would agree with that.

Q. And how, if at all, would it change your report if in that

same case the Supreme Court said interest groups do not

determine who will serve on legislative committees?

A. It would not change my report.

Q. And how, if at all, would it change your report if the

Supreme Court in that same opinion opined that interest groups

do not elect congressional leadership?

A. It would not change my report.

Q. How, if at all, would it change your report if in that

opinion the Supreme Court opined that special interest groups

do not organize legislative caucuses?

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Osborn - cross

167

A. That would not change my report.

Q. How, if at all, would it change your report if in that

opinion the Supreme Court opined that political parties have

influence and power in the legislature that vastly exceeds

that of any interest group?

A. It would not change my report.

Q. How, if at all, would it change your report if in that

same opinion the Supreme Court opined that party affiliation

is the primary way by which voters identify candidates?

A. It would not change my report.

Q. And how, if at all, would it change your report if in that

same opinion the Supreme Court opined that parties in turn

have special access to and relationships with officeholders?

A. It would not change my report.

Q. How, if at all, would it change your report if the Supreme

Court's acknowledgment that political parties engage in all of

these activities may be accounted for in campaign finance

regulation when dealing with the salient differences between

political parties and interest groups?

A. It would not change my report.

Q. You would agree with me, would you not, that there is no

secrecy in voting when it comes to the Illinois Senate or the

Illinois House of Representatives?

A. Yes and no. The formal vote is very public. The backroom

negotiations about policy opinions and amendments is -- can be

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Osborn - cross

168

far more clouded; and that's why a lot of scholars, when they

attempt to tie interest group contributions to votes, find it

to be a challenging determination because a lot of the deals

are cut, and by a time a bill comes up for a vote, a lot of

the policy work has already been done.

So, yes, the actual final vote is very public, but

some of the pre-voting activities may be more obscured.

Q. But the final vote is what, in fact, creates laws?

A. Yes.

Q. And there's no hiding the record on that, right?

A. That is correct.

Q. And similarly, under the election code in Illinois,

there's no hiding where a candidate receives campaign

contributions?

A. That is correct.

MS. SCHELLER: Your Honor, may I have just a moment?

THE COURT: Sure.

MS. SCHELLER: Thank you. I have nothing further.

THE COURT: Thank you. I just wanted to follow up on

one line of questioning about the 2008 election. I think

your -- not objection in the formal sense, but your

disagreement with the premise of the question regarding the

2008 elections was that counsel was focusing on the national

vote, and the national vote doesn't really tell us anything

because the winner of the presidential election is determined

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Osborn - cross

169

by the electoral college.

So, let me ask you to focus on one particular state,

Wisconsin. And it turns out that Senator Obama prevailed over

Senator McCain in Wisconsin by 14 percentage points, 13 and

some change. Does that mean that all the money that Senator

Obama and the National Democratic Party spent in Wisconsin on

the presidential campaign was wasted money?

THE WITNESS: No, not necessarily.

THE COURT: And why not?

THE WITNESS: Ideally, if you're a campaign

consultant and you get just enough votes so that you can spend

money elsewhere, you would do that. But margin of victory is

important.

One of the things and what was challenging, just to

bring this back to the Illinois example, without really good

registration numbers and prediction numbers, those are pretty

determinative of where you spend your money. And so they may

have had strategies to beat what they thought they would model

out, so they may have been more successful than they thought.

And things change during the campaign.

So, if you go back to the 5 percent idea, it's a very

rough guide to look at competition; but as you go up to 13,

15, 20 percent, those are very wide margins.

I don't know if that answers your question.

THE COURT: So, even though 13 percent is a very wide

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170

margin, you're saying it still was not a mistake -- you're

saying that Senator Obama and the National Democratic Party

did not misspend the money, you know, in Wisconsin during the

2008 election? Or could they have known at the time that they

were misspending -- that they were wasting money where it

didn't have to be spent?

THE WITNESS: So, they most likely had some

information that made them think that it would be much closer

than it was. Now, what I'm unclear on, just because I'm not

that familiar with Wisconsin, is how much they actually spent

in the general election. It may have been one of the 11 or 13

swing states, but it may not have been. It would not surprise

me if it was. It all depends on what analysis they have on

the front side.

So, the question is if you asked consultants at the

back end if they got 13 or 14 percent, they probably would

have dialed some of that back so they could get an extra 4 or

5 in another state if at all possible.

THE COURT: Right. And let me just -- same question

about Arizona in the 2012 election. Governor Romney defeated

President Obama in Arizona by 10 percentage points. And I

believe that the Republican Party and Senator -- I'm sorry,

and Governor Romney's campaign spent money in Arizona.

Given the 10 percentage-point victory that Governor

Romney ultimately obtained in Arizona, was it a mistake for

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Osborn - redirect

171

the campaign and the national party to spend money in Arizona

on that race?

THE WITNESS: Let's be clear. When we talk about

national party, depending on -- that money in some cases helps

other down-ballot candidates. So, that could have been --

Arizona in that race had a series of congressional races that

were at risk, very high profile, two of the highest-profile

swing districts.

So, in that case, it may make sense for them to spend

those resources to bring voter turnout particularly in those

two districts. One's down in Tucson, and the other one was up

in northern Arizona.

So, as I recall, part of the reason why they made

those heavy investments is to bring up the down-ticket vote.

THE COURT: What about the Romney campaign itself?

Was it -- given their 10-point margin of victory, was it a

mistake at the time they spent the money in Arizona to have

spent the money in Arizona?

THE WITNESS: It depends on how much they spent. I

don't believe they spent a heck of a lot of money in Arizona,

as I recall.

THE COURT: Okay. All right. That's all I have.

Any redirect?

MR. HUEBERT: Yes, your Honor.

REDIRECT EXAMINATION

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172

BY MR. HUEBERT:

Q. Dr. Osborn, a candidate's campaign can certainly misjudge

how competitive the race is going to be, correct?

A. Yes.

Q. And so they could unnecessarily pour resources into a race

that's not -- that actually was safer than they realized, is

that right?

A. Yes.

Q. And would you say a candidate is relatively -- that

someone is relatively less likely to make that judgment if,

for example, they have been the Speaker of the House of

Representatives in a state for several decades? Do you think

they would have a pretty good sense of how competitive the

districts in their state are?

A. Yes. And they were actively involved in drawing the lines

in which they were -- so, they would have a very good idea.

Q. And do you think that would also be true of someone who

has been chairman of the state's Democratic Party for several

decades, that they would have a good sense of how competitive

the various districts in their state are?

A. Yes. I think part of their job is to have a very good

handle on competition.

Q. So, they might have been able to judge that better than a

candidate who's running in a nationwide election for the first

time?

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Osborn - redirect

173

A. They may, yes. It's also important to remember there's

kind of competing objectives, too. National candidates have a

different focus than local candidates.

Q. You mentioned that the Speaker of the House would be --

particularly if they are Speaker over a long period of time,

would be involved in drawing the legislative districts of the

state, typically, unless there's some kind of reform that puts

it in somebody else's hands?

A. That's correct.

Q. And so when the leaders -- when a Speaker of the House or

a Senate President of whichever party does that, will they

tend to draw districts in a state where the -- that are

relatively homogeneous with respect to the political

composition of the citizens within that state, of their party

orientation?

For example, if you are a Democrat, Speaker of the

House, a Democratic legislative leader and you're drawing the

boundaries for legislative districts, will you tend to put

high concentrations of Democrats perhaps in a single district

to make you able to win that district?

A. Yes and no. What you will do is try to balance -- you

have to look at the state strategically and try to balance an

electoral map that allows you to gain the most votes. And

sometimes that may mean pulling some folks out of some

districts and more in others. You obviously have to balance

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Osborn - redirect

174

that with the legal and constitutional requirements, but there

is definitely a party maximumization strategy that is somehow

with redistricting. That's one of the normal critiques of

state legislatively drawn districts.

Q. And so if you're involved in drawing those lines, you're

probably not going to create very many districts where you are

going to have to fight close elections in those districts and

devote a lot of resources to campaigns in those districts

because they're going to be close?

A. Ideally, no, you would not do that. You would -- it just

depends on how -- what the party mix in your state. If you

have a very 50-50 state, it's going to be very difficult to

draw wildly divergent districts; but as a general rule,

they'll try to maximize their membership opportunities.

Q. So, if districts are drawn to favor the drawer's party, in

general, understanding some districts will be given over to

the other party for strategic reasons, is it possible that

the -- would you consider it likely that some districts will

be drawn so that the real competition will typically -- if

any, will typically be in the primary, and whoever wins the

primary will not have to concern himself or herself much with

appealing to voters of the other party in the general

election?

THE COURT: If you could hold on one second.

MS. SCHELLER: At this point, I would object to

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Osborn - redirect

175

scope, and I would also say we are pretty far afield from

plaintiffs' Rule 26 disclosures. I also think plaintiff is

leading.

MR. HUEBERT: If I may, I think I am -- I think I'm

well within the scope because we're talking about having to

appeal to the center in elections. There were questions about

that on cross. And my understanding is I am free to lead to a

certain extent on redirect.

THE COURT: Not so much, but a little bit.

MR. HUEBERT: Okay.

THE COURT: I'm going to sustain a form objection to

the question because I -- I don't understand the question.

So, if you could restate it.

It kind of went on, and then there were

qualifications --

MR. HUEBERT: I understand.

THE COURT: -- and I'm not sure. I don't understand

it. Maybe the witness understands it, but if you could

restate it.

MR. HUEBERT: Actually, I think I've covered what I

need to cover on that topic, so I'll move on.

THE COURT: All right.

BY MR. HUEBERT:

Q. Dr. Osborn, when you opined about characteristics of

political party committees in your -- when I conducted my

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direct examination, were you speaking about the

characteristics of political parties generally without respect

to whether they were at the state level or the county level or

some other level?

A. That is correct. Parties as an entity.

Q. On cross-examination, you testified that a legislative

leader who engages in corruption could be voted out of office.

Is that equally true of any elected official?

A. Yes.

Q. On cross-examination, you testified that finding -- if

you're a senator or you're a representative, finding other

legislators to join with you in forming a legislative caucus

committee is the only barrier to entry to forming a

legislative caucus committee. Does that mean that forming a

legislative caucus committee will be easy?

A. Well, I think there's two issues there. One is, can you

form it; and the second is, how successful are you going to be

at fundraising and recruiting funds?

And we talked about kind of the carrots and the

hammers that the Speaker and the leadership has irrespective

of caucus committees. They can help guide or retard

fundraising efforts by members within their caucus. Interest

groups are going to be very reticent to contribute to a caucus

committee that may anger the Speaker if they have issues with

the Speaker. If they're ideologically-based or a single

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issue, I think that's a little different; but it's one thing

to say, "I've created a healthy caucus committee." It's

another thing to say it has enough funds and resources to

actually be impactful.

Q. You testified on cross-examination that the Speaker has

carrots and hammers to control in both the U.S. House and the

Illinois House that would help them to retain their position.

Are there any factors that might give the Illinois

Speaker of the House advantages in doing so that the Speaker

of the U.S. House does not have?

A. Well, I think there's a couple of factors. One, the

Illinois House is much smaller, and it also depends on how

homogeneous the caucus is in terms of ideology. If you have

wide divergence in ideology in your caucus, then the Speaker's

leadership tends to be more tenuous.

Now, in terms of the formal structure of things, the

caucus committee is a tool that the Illinois Speaker has that

the U.S. Speaker does not have. There's other fundraising

tools that he has, where that's not one of them.

And as we saw with the last Speaker, you know, there

is continually competition to go after leadership, and so when

John Boehner was removed, that came from within. One of the

ways -- if you centralize fundraising from the top, it helps

to mitigate the potential for those kind of intra-party

uprisings.

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And so it would be a little bit different if any

member of a caucus could create their own caucus committee so

they could challenge the leadership, but that's not the case

in Illinois. They have to find four other people or nine

other people, depending upon which house they're in.

Q. You were asked about a statement possibly from a U.S.

Supreme Court case that said interest groups do not select

slates of candidates, and you testified that you agreed with

that statement. I don't believe you testified as to whether

that statement, if it were stated in a U.S. Supreme Court

opinion, would affect your opinion in this case.

Would that statement affect your opinion in this

case?

A. No. The primary elections is how parties select their

slate of candidates, and so it has less to do with the access

strategy impacts.

Q. You gave some testimony related to Illinois Liberty PAC,

one of the plaintiffs in this case. Have you had any personal

involvement with Illinois Liberty PAC?

A. No, other than being retained as an expert.

Q. Do you have any knowledge of the specific policy positions

that Illinois Liberty PAC takes?

A. No, other than a general understanding that they're a

conservative organization.

Q. Do you know specifically what Illinois Liberty PAC means

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when it says that it supports free market principles?

A. Not in detail, just generally.

Q. Do you mean that you generally know what the term "free

market principles" means, or you know generally what they mean

when they say free market principles?

A. I know what the general term "free market principles"

means.

Q. Are you aware of the strategies that Illinois Liberty PAC

in particular pursues?

A. No.

Q. You testified that you weren't aware of any legislative

caucus committees organized around legislative committees,

which as you said was possible in your report. Does it

surprise you that you didn't find that?

A. No.

Q. Why not?

A. The structure seems to be centralized now with the senior

leadership. Only in a scenario where -- if you would have a

change in leadership or a change in philosophy would you

likely see those emerge.

MR. HUEBERT: Nothing further. Thank you.

THE COURT: Okay. Thank you.

MS. SCHELLER: Very brief.

THE COURT: Okay.

RECROSS-EXAMINATION

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BY MS. SCHELLER:

Q. Dr. Osborn, you did not analyze any congressional

districting or redistricting as part of your report, correct?

A. I did not.

Q. And you don't have any opinions as to how the districts

were drawn in Illinois during any of the elections you've

analyzed?

A. I do not.

Q. Now, changing focus, are you familiar with the saying,

"That's why you play the game"? Do you know what I mean when

I say that?

A. Not particularly. I mean, I've heard it before, but --

Q. Well, while you can always predict the winner of any game,

you don't know who's going to win until the game is played,

right?

A. Yes.

Q. And the same would be true of any election, correct? You

can make all the predictions you want, but until all of the

voting is finished, there is no winner?

A. There is some truth to that, yes.

Q. And you mentioned that you're not aware whether any

legislative caucus committees have -- I'm sorry. I'm going to

strike that and start over.

You testified that some donors might be reticent to

donate to non-leadership legislative caucus committees because

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they didn't want to anger the Speaker, correct?

A. Yes.

Q. And yet in your report, you didn't analyze any

non-leadership legislative caucus committees, right?

MR. HUEBERT: Objection. This isn't within the scope

of my redirect scope.

THE COURT: Counsel?

MS. SCHELLER: It is, your Honor. He specifically

asked whether donors might shy away from donating to

non-leadership legislative caucus committees to avoid angering

the Speaker.

THE COURT: Was that on redirect?

MS. SCHELLER: It was.

THE COURT: Counsel?

MR. HUEBERT: I don't recall asking that question.

If -- I don't have a transcript, but I don't recall asking

that.

THE COURT: You know what, I'll allow it, and then if

you would like to re-redirect the witness on that, then you

can go ahead.

BY THE WITNESS:

A. So, as someone who's been involved in fundraising for

interest groups for a number of years, granted, my experience

is in Arizona, but when there are challenges to the Speaker's

leadership and they have created outside organizations to fund

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182

candidacy, you get calls from the Speaker saying, "If you give

this, there will be issues."

So, it's not uncommon in terms of the concept of

legislative leadership has a fairly significant hold on who

gives and when.

BY MS. SCHELLER:

Q. But, Dr. Osborn, my question was: You didn't even analyze

any of the non-leadership legislative caucus committees in

Illinois, correct?

A. That is correct.

Q. So, you don't know who gave to them, right?

A. That is correct.

Q. You don't know who didn't, correct?

A. That is correct.

Q. And you weren't able to point to a single phone call like

the one you just referenced in your testimony which stopped

someone from donating to a non-leadership legislative caucus

committee in Illinois?

A. You are correct.

MS. SCHELLER: I have nothing further.

MR. LOVELLETTE: May we have one moment, your Honor?

MS. SCHELLER: I'm sorry. I may have one more.

BY MS. SCHELLER:

Q. Dr. Osborn, when I was asking my questions about

congressional redistricting, I was referring to Illinois. Was

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your testimony related to Illinois, or were you speaking about

national redistricting?

A. I was -- I interpreted the question to mean Illinois

redistricting.

Q. Thank you.

THE COURT: So, you meant legislative, and you

understood counsel to say legislative?

THE WITNESS: Yes. She's kind of blurred Congress

and the legislature a few times, but I'm able to follow it.

THE COURT: Okay.

MS. SCHELLER: Thank you.

THE COURT: Dr. Osborn, at the beginning of your

redirect, I thought I -- I think I'm interpreting your

testimony as saying that if -- if you're able to draw the

lines, the legislative lines, you could -- you pretty much

know how the general election is going to come out, is that

right? Is that what you were saying in response to counsel's

questions?

THE WITNESS: It makes it easier. It's not an

absolute, but those who draw the lines have the ability to

kind of shape the electoral map in a way that they understand.

And does it mean that it will change or we'll have

differences? Because you're also predicting it over a 10-year

span, so what may be good today may not be good eight or nine

years from now, especially in states where you see a lot of

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Osborn - recross

184

demographic shift.

But they are very attuned to how many voters are

turning out and in what party. That is a high degree of focus

in redistricting efforts nationally.

THE COURT: I see. Do you know who was in charge of

drawing the Illinois congressional -- and by congressional, I

do mean congressional -- lines after the 2010 census?

THE WITNESS: I believe it was the Illinois

legislature, but I'm not positive.

THE COURT: Do you know which party was pretty much

in the driver's seat?

THE WITNESS: The Democrats.

THE COURT: Right. And are you familiar with what

happened in the Illinois congressional elections in 2014,

which was only three or four years after the lines were drawn?

THE WITNESS: I am not.

THE COURT: Would it surprise you that the

Republicans took two House seats away from the Democrats in

that election?

THE WITNESS: If it was part of the Republican wave,

that would be possible.

THE COURT: So, does that suggest to you that just

because you draw the lines doesn't mean that you know how it's

going to come out, and you haven't really rigged it completely

in your favor?

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THE WITNESS: Well, it's a balancing act, because

unfettered with statutes, they would draw them perfectly for

their own benefit; but you have to balance communities of

interest. You know, there's a number of other factors.

And sometimes you actually have to take certain

districts and say, "These are going to be higher-risk

districts," and it's -- and members of the congressional

delegation will fight aggressively amongst themselves about

who gets more of what votes.

So, it wouldn't surprise me. I mean, they'd do their

best job, but over time, it could change. It's a balancing

act, and I've watched it firsthand in Arizona where there's a

lot of give-and-take between members; and to be honest, most

members of Congress don't want to give up any of their good

votes, and they want to give everyone else the high-risk

stuff, and the party has to balance all of that.

And sometimes it gets even worse where they actually

draw -- where members of the legislature want to run for

elected office, so they draw the map so when they run for

Congress, they're advantageous to them. So, it's a very

dynamic and interesting process, very political.

THE COURT: Okay. Thank you. Any redirect based on

my most recent question or defendants' questions.

MR. HUEBERT: No, your Honor.

THE COURT: Okay. Any re-recross based on my

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questions?

MS. SCHELLER: No, your Honor.

THE COURT: Okay. Thank you, Dr. Osborn.

THE WITNESS: Thank you very much.

THE COURT: Safe travels.

THE WITNESS: I'll be in 70 degrees before the day is

over.

THE COURT: And I know you didn't say that to curry

favor with the trier of fact.

(Witness excused.)

THE COURT: So, any other witnesses from the

plaintiffs' side?

MR. HUEBERT: No, your Honor.

THE COURT: So, the plaintiffs rest?

MR. HUEBERT: That's correct.

THE COURT: All right. And what can we expect from

the defendants?

MS. SCHELLER: At this point, the defendants are

moving for judgment under Rule 50.

THE COURT: Let me make sure you have the right rule.

Rule 50 is in a jury trial.

MS. SCHELLER: Then let me check. Your Honor, we

would also move under Rule 52, which might be the appropriate

rule under the circumstances because it's a bench trial.

THE COURT: Right. Well, whether it's -- I know --

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187

and I have looked at this before, and I've forgotten what I

had determined. So, whether it's under Rule 50 or Rule 52,

I'm going to reserve on the question -- I'm going to decline

to grant the motion for judgment on the pleadings, which in

practical effect means that I'm going to wait until all the

evidence is in to make a decision on who prevails in this

bench trial.

So -- and what can we -- which witnesses are we going

to have from the defendants' side?

MS. SCHELLER: Your Honor, we anticipate calling

Andrew Nauman. We will ask the Court to take judicial notice

of some statutes and facts, and then we intend to rest.

THE COURT: Okay. And Andrew Nauman is the deputy

director of campaign disclosure?

MS. SCHELLER: Correct.

THE COURT: Okay. And I believe that plaintiffs'

counsel asked me to take judicial notice of or admit

Exhibits 2 through 5. Is there any objection to that?

MS. SCHELLER: No, your Honor. And we can do that

now as a practical matter, because they did ask to do so

before they rested. The only -- the only caveat that we would

raise is I will try to see if we can get official certified

copies of the documents that are reflected in 2 through 5,

insofar as they're State Board of Election materials, which we

can substitute in if available; but otherwise, we have no

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objection.

THE COURT: That fine. And I see from the footer

that this is from the ISBE's website, so -- and plaintiffs are

officers of the Court, so I am 100 percent sure that these

figures are authentic. But if you want to substitute in the

certified copies, talk to plaintiffs' counsel about it, and if

you all are in agreement, it's fine with me. But if somehow

you can't get the certified copies, I'm pretty confident --

I'm more than pretty confident that these figures are accurate

for what they're purported to show.

All right. And then do you anticipate plaintiffs

having any kind of a rebuttal case after the defendants'

witness?

MR. HUEBERT: I don't anticipate it.

THE COURT: All right. And how long do you think

you're going to have Mr. Nauman on the stand?

MR. LOVELLETTE: Less than 20 minutes.

THE COURT: Okay. All right. Very good. Then why

don't we resume tomorrow at 9:30. And we'll probably be done

by mid-morning or so, certainly by lunch. And then we'll talk

about where we go from there, whether the parties want to

revise their proposed findings of fact and conclusions of law,

retrofit them in light of the testimony that's been given, and

how you want to go about doing that, and we'll set a schedule.

Okay? All right. Thank you.

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MR. LOVELLETTE: Thank you.

MS. SCHELLER: Your Honor, I have one brief question.

At the final pretrial conference, the Court contemplated a

question-and-answer session, which we'll be prepared to do

tomorrow, assuming the Court still wants to proceed in that

direction.

THE COURT: I may. I may. I'm going to review my

notes. I'm going to review the proposed findings of fact and

conclusions of law again, and I'll -- I mean, if the past is

any guide, I'll have some questions for you, but I can't

guarantee it.

MS. SCHELLER: Thank you.

THE COURT: Thank you.

(Court adjourned, to reconvene 1/26/16 at 9:30 a.m.)

CERTIFICATE

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

/s/Charles R. Zandi January 26, 2016

 

Charles R. Zandi Date

Official Court Reporter

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