IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ILLINOIS LIBERTY PAC, et al., )

)

Plaintiffs, ) Judge Gary Feinerman

) 

v. ) No. 12 CV 5811

) 

LISA M. MADIGAN, Attorney General )

of the State of Illinois, et al., )

)

Defendants. )

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS

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

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 1

I. Facts ................................................................................................................................ 1

II. Procedural History .............................................................................................................. 1

SUMMARY JUDGMENT STANDARD ...................................................................................... 3

ARGUMENT ................................................................................................................................ 3

I. The First Amendment prohibits restrictions on speech, including campaign

contribution limits, that arbitrarily favor some speakers over others. ................................ 4

II. Defendants must show that the Act’s contribution limits are narrowly tailored

to prevent quid pro quo corruption. .................................................................................... 5

III. The Act’s limits that discriminate in favor of legislative caucus committees

and against PACs and other political speakers are not narrowly tailored to prevent

corruption. .................................................................................................................... 6

A. By giving legislative leaders the right to make unlimited contributions

through legislative caucus committees while others are limited, the Act

allows and encourages quid pro quo corruption and its appearance....................... 6

1. Legislative leaders can use caucus committees to serve their

personal interests......................................................................................... 6

2. Legislative caucus committee contributions have the same potential

to corrupt as PAC contributions.................................................................. 7

3. The Act’s inconsistent treatment of legislative caucus committees

and PACs is not narrowly tailored to prevent corruption. .......................... 8

2. Dr. Osborn’s lack of prior experience with Illinois’ election system 

does not disqualify him as an expert........................................................... 8

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B. Legislative caucus committees are not comparable to other party

committees. ............................................................................................................. 9

C. It is not necessary or ordinary for states to give legislative caucus

committees such disproportionate favorable treatment. ....................................... 11

D. The report of Plaintiffs’ expert, Marcus Osborn, further shows that

legislative caucus committees are similar to PACs and that the Act’s

discriminatory limits are not narrowly tailored to prevent corruption.................. 13

CONCLUSION............................................................................................................................. 18

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TABLE OF AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................................................................. 3

Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) ............................................................... 6

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................. 3

Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) ................................................... 4

City of Ladue v. Gilleo, 512 U.S. 43 (1994) .................................................................................. 5

Fla. Star v. B.J.F., 491 U.S. 524 (1989) ........................................................................................ 5

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ............................................................................ 4, 5

Republican Party of Minn. v. White, 536 U.S. 765 (2002) .................................................... 6, 8, 9

Wis. Right to Life State PAC v. Barland, 664 F.3d 139 (7th Cir. 2011) ........................................ 5

Illinois State Statutes

10 Ill. Comp. Stat. 5/9-1.8 .............................................................................................................. 7

10 Ill. Comp. Stat. 5/9-8.5 .................................................................................................... 7, 8, 10

10 Ill. Comp. Stat. 5/7-8 ................................................................................................................. 9

Other State Statutes and Constitutions

Ala. Code § 17-5-2 ....................................................................................................................... 12

Alaska Stat. § 15.13.070 ............................................................................................................... 12

Alaska Stat. § 15.80.010 .............................................................................................................. 12

Ark. Code Ann. § 7-6-203 ........................................................................................................... 12

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Cal. Gov't Code § 85301 .............................................................................................................. 12

Cal. Gov't Code § 85205 .............................................................................................................. 12

Conn. Gen. Stat. § 9-611............................................................................................................... 12

Fla. Stat. § 106.08 ........................................................................................................................ 12

Mich. Comp. Laws. § 169.252 ..................................................................................................... 13

Ga. Code Ann. § 21-5-41 ............................................................................................................. 12

Haw. Rev. Stat. § 11-302.............................................................................................................. 12

Haw. Rev. Stat. § 11-357 ............................................................................................................. 12

Idaho Code Ann. § 67-6610A ...................................................................................................... 12

Ind. Code § 3-9-2 ......................................................................................................................... 12

Iowa Code § 68A .......................................................................................................................... 12

Ky. Rev. Stat. Ann. § 121 ............................................................................................................. 12

Kan. Stat. Ann. § 25-4143 ............................................................................................................ 12

Kan. Stat. Ann. § 25-4153 ............................................................................................................ 12

Me. Rev. Stat. Ann. tit. 21-A, § 1015 .......................................................................................... 12

Minn. Stat. § 10A.01..................................................................................................................... 12

Minn. Stat. § 10A.27..................................................................................................................... 12

Miss. Code Ann. § 23-15-1........................................................................................................... 12

Miss. Code Ann. § 97-13-15 ........................................................................................................ 12

Mo. Rev. Stat. § 130.011 .............................................................................................................. 12

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Mont. Code Ann. § 13-1-101........................................................................................................ 13

Mont. Code Ann. § 13-37-216 ..................................................................................................... 13

N.C. Gen. Stat. § 163-278.13........................................................................................................ 12

N.D. Cent. Code § 16.1-08.1-03.5 ................................................................................................ 12

N.H. Rev. Stat. Ann. § 664:4 ....................................................................................................... 12

N.J. Stat. Ann. § 19:44A-11.3 (West) .......................................................................................... 13

N.J. Admin. Code § 19:25-1.1 ..................................................................................................... 13

N.M. Stat. § 1-19-34.7 ................................................................................................................. 12

Neb. Rev. Stat. § 32 ...................................................................................................................... 12

Nev. Const. art. II, § 10 ................................................................................................................ 12

Nev. Rev. Stat. § 294A.100 ......................................................................................................... 12

Ohio Rev. Code Ann. § 3517.102 ................................................................................................ 12

Or. Rev. Stat. § 260....................................................................................................................... 12

25 Pa. Cons. Stat. Ann. § 3253 ..................................................................................................... 12

S.C. Code Ann. § 8-13-1314 ........................................................................................................ 12

S.D. Codified Laws § 12-27-8 ..................................................................................................... 12

Tenn. Code Ann. § 2-10-302 ........................................................................................................ 13

Tenn. Code Ann. § 2-10-306 ....................................................................................................... 13

Tex. Elec. Code Ann. § 253.......................................................................................................... 12

Va. Code Ann. § 24.2-945 ........................................................................................................... 12

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W. Va. Code § 3-8-12 .................................................................................................................. 12

Wash. Rev. Code § 42.17A.405 ................................................................................................... 12

Wash. Admin. Code § 390-05-400 .............................................................................................. 12

Wis. Stat. § 11.26 ................................................................................................................... 12-13

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INTRODUCTION

The First Amendment prohibits the government from using campaign contribution limits 

to favor some political speakers over others. That, however, is exactly what Illinois has done by 

enacting a campaign finance “reform” law that allows legislative leaders to give unlimited 

amounts to the candidates they favor through legislative caucus committees while restricting the

amounts that competitors – including political action committees (“PACs”) such as Plaintiff 

Illinois Liberty PAC and individual donors such as Plaintiff Edgar Bachrach – can give to the 

candidates they favor. Because this difference in treatment is not narrowly tailored to serve the 

State’s interest in preventing corruption or the appearance of corruption, this Court should grant 

summary judgment in favor of Plaintiffs as a matter of law on their First Amendment claim and 

strike down the discriminatory limits. 

BACKGROUND

I. Facts

Plaintiffs have submitted their statement of material facts separately in accordance with 

Local Rule 56.1(a).

II. Procedural History

Plaintiffs Illinois Liberty PAC and Edgar Bachrach’s first amended complaint in this 

action (Doc. 27) alleged that the scheme of campaign contribution limits in the Illinois 

Disclosure and Regulation of Campaign Contribution and Expenditures Act (the “Act”) violates

their First Amendment right to free speech and their Fourteenth Amendment right to equal 

protection. They alleged that the Act violates their right to equal protection because it imposes 

lower contribution limits on them than on similarly situated political parties, which, in general 

elections, face no limits at all. (Doc. 27, ¶¶ 41-42.) Bachrach also alleged that the Act violated 

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his right to equal protection by allowing him to contribute only half the amounts that 

corporations, labor unions, and associations may contribute to candidates, PACs, and parties. (Id. 

¶¶ 43-44.) Illinois Liberty PAC and Bachrach also argued that the Act’s limits violated the First 

Amendment because they were not narrowly tailored or closely drawn to serve a compelling or 

important government interest. Specifically, they alleged that the Act’s removal of all limits in 

races where independent expenditures or a candidate’s self-funding exceed certain amounts 

wrongfully made their own right to speak contingent upon the speech of others, and that the 

Act’s lifting of limits under those circumstances, along with the other constitutional defects, 

demonstrated that the Act’s limits do not serve an anticorruption purpose but instead serve the 

impermissible purpose of favoring political parties and their leaders over Plaintiffs and all other 

political speakers. (Id. ¶¶ 62-64.) 

This Court denied Plaintiffs’ motion for preliminary injunction seeking to enjoin 

enforcement of the Act’s limits before the 2012 election. (Doc. 44, Memorandum Opinion and 

Order.)

Plaintiffs then filed a second amended complaint (Doc. 65) with an additional plaintiff, 

state senator Kyle McCarter. The second amended complaint alleges that the Act’s scheme of 

limits fails to serve an anticorruption purpose (or is not narrowly tailored to do so) and thus 

violates the First Amendment because it: (1) shows favoritism to legislative leaders by 

authorizing legislative caucus committees and by allowing political party committees to make 

unlimited contributions to candidates; (2) tethers Plaintiffs’ free-speech rights to the speech of 

others by removing limits only when independent expenditures or a candidate’s funding exceed 

certain amounts in a race; (3) discriminates against individual contributors by allowing them to 

contribute only half the amounts that corporations, labor unions, and other associations may 

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contribute to candidates, PACs, and parties; (4) creates opportunities for political parties and 

legislative leaders, through legislative caucus committees, to circumvent the Act’s limits. (Doc. 

65, Second Am. Compl. ¶¶ 47-71.)

The Court granted Defendants’ motion to dismiss Plaintiffs’ second amended complaint 

with respect to all facets of Plaintiffs’ First Amendment claim except for “Plaintiffs’ challenge to 

the Act’s treatment of legislative caucus committees.” (Doc. 96, Memorandum Opinion and 

Order at 6-9.) The parties engaged in limited discovery related to that narrow issue. (See Doc. 97, 

Initial Status Report.) Discovery included Plaintiffs’ disclosure of an expert witness, Dr. Marcus 

Osborn, whom Defendants have deposed and moved to exclude. (Doc. 116.) In accordance with 

the Court’s instructions, this memorandum separates the portion of Plaintiffs’ argument that 

relies on Dr. Osborn’s testimony so the Court can consider the merits of Plaintiffs’ claim with 

and without it.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where there are no disputed issues of material fact and 

the moving party is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett, 

477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). The Court must view the evidence and draw 

inferences in the light most favorable to the nonmoving party, but, to defeat a motion for 

summary judgment, the nonmoving party must set forth specific facts showing that there is a 

genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 

ARGUMENT

I. The First Amendment prohibits restrictions on speech, including campaign 

contribution limits, that arbitrarily favor some speakers over others.

“Premised on mistrust of governmental power, the First Amendment stands against . . . 

restrictions distinguishing among different speakers, allowing speech by some but not others.” 

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Citizens United v. FEC, 558 U.S. 310, 340 (2010) (citing First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765, 784 (1978)). “Speech restrictions based on the identity of the speaker are all too 

often simply a means to control content.” Id. In particular, the First Amendment prohibits 

government attempts to control the “relative ability of individuals and groups to influence the 

outcome of elections.” Id. at 350. 

These principles apply to limits on campaign contributions, which affect the First 

Amendment rights to political expression and political association. McCutcheon v. FEC, 134 

S.Ct. 1434, 1448 (2014) (citing Buckley v. Valeo, 424 U.S. 1, 15, 21-22 (1976)). Accordingly, 

the government “may not regulate contributions simply to . . . restrict the political participation 

of some in order to enhance the relative influence of others.” Id. at 1441. As the Supreme Court 

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

govern.” Id. at 1441-42.

II. Defendants must show that the Act’s contribution limits are narrowly tailored to

prevent quid pro quo corruption or its appearance.

The Supreme Court has recently emphasized that limits on campaign contributions must 

receive rigorous scrutiny because they affect a fundamental right. McCutcheon, 134 S.Ct. at 

1441. Under Buckley v. Valeo, limits on campaign contributions violate the First Amendment 

unless the government can show that they are closely drawn to serve a sufficiently important 

interest. Wisconsin Right to Life State PAC v. Barland, 664 F.3d 139, 152 (7th Cir. 2011) (citing, 

inter alia, Buckley, 424 U.S. at 20-21, 23-25).1 Under that test, as under strict scrutiny, the Court

 

1

Plaintiffs maintain that the contribution limits they challenge should be subject to strict 

scrutiny both because they place a special and substantial burden on their rights and because the 

Supreme Court erred in applying less-than-strict scrutiny to campaign contribution limits in 

Buckley. (See Doc. 87, Plaintiffs’ Response to Defendants’ Motion to Dismiss at 6.) This Court, 

however, has ruled that Buckley’s standard applies in this case and noted that Plaintiffs have 

preserved the issue for appellate review. (Doc. 96, Memorandum Opinion and Order at 4-5)

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“must assess the fit between the stated governmental objective and the means selected to achieve 

that objective.” McCutcheon, 134 S.Ct. at 1445. Although the fit need not be “perfect,” it must 

be “reasonable” and must use a “means narrowly tailored to achieve the desired objective.” Id. at 

1456-57.

The only interest that is sufficiently important to justify campaign contribution limits is

preventing quid pro quo corruption or its appearance. McCutcheon, 134 S.Ct. at 1441.

Accordingly, the Act’s limits that discriminate in favor of legislative caucus committees and 

against PACs can only survive if Defendants meet their burden to show that the limits are

narrowly tailored to limit corruption or the appearance of corruption.

An exemption from restrictions on speech – even from restrictions that are “otherwise 

permissible” – can “diminish the credibility of the government’s rationale for restricting speech 

in the first place” and demonstrate that the restrictions are not narrowly tailored to serve a 

sufficiently important governmental interest. City of Ladue, v. Gilleo, 512 U.S. 43, 52 (1994). 

“[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a 

restriction upon . . . speech, when it leaves appreciable damage to that supposedly vital interest 

unprohibited.” Florida Star v. B.J.F., 491 U.S. 524, 541-42 (1989) (Scalia, J., conurring) 

(internal marks and citations omitted). Thus, for example, in Republican Party of Minnesota v. 

White, the Supreme Court held that a rule that prevented judicial candidates from stating their 

views on legal issues during their campaigns, supposedly for the purpose of keeping them openminded, was fatally underinclusive because candidates could still state their views on those 

issues immediately before announcing their candidacies, which could just as easily affect their 

open-mindedness when deciding cases. 536 U.S. 765, 779-80 (2002). Similarly, in Brown v. 

Entertainment Merchants Ass’n, the Court held that a law restricting the sale of violent video 

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games to minors was underinclusive because some minors could nonetheless acquire the games 

lawfully and all minors still had unlimited access to other media that could have the same effects, 

such as “Saturday morning cartoons, . . . games for young children, [and] . . . pictures of guns.” 

131 S.Ct. 2729, 2740 (2011). 

Accordingly, if the Act arbitrarily exempts certain contributions from its limits, it is 

underinclusive and therefore not narrowly tailored to prevent corruption. 

III. The Act’s limits that discriminate in favor of legislative caucus committees and 

against PACs and other political speakers are not narrowly tailored to serve an anticorruption interest. 

A. By giving legislative leaders the right to make unlimited contributions 

through legislative caucus committees while others are limited, the Act allows 

and encourages quid pro quo corruption and its appearance.

By giving legislative caucus committees no limits in general elections, higher limits than 

other political speakers in primary elections, and other special privileges, the Act allows and 

encourages contributions that could give rise to actual or apparent quid pro quo corruption. As a 

result, the Act is underinclusive, is not narrowly tailored to prevent corruption, and violates the 

First Amendment

1. Legislative leaders can use caucus committees to serve their personal 

interests.

Legislative leaders can use legislative caucus committees to serve their personal interests. 

The Act defines “legislative caucus committees” to include four committees respectively 

established by the four legislative leaders: the Speaker of the House, the Senate President, and 

the two minority leaders. 10 ILCS 5/9-1.8(c). The Act only requires that legislative leaders 

establish the committee “for the purpose of electing candidates to the General Assembly”; it does 

not require them to use their respective caucus committees to advance their political party’s 

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interests rather than their own personal interests.2Id. Accordingly, legislative leaders can use 

their caucus committees to advance their personal interests in keeping their leadership positions 

and promoting their own policy agenda among their fellow legislators. 

2. Legislative caucus committee contributions have the same potential to 

corrupt as PAC contributions.

Because legislative leaders can use their caucus committees to serve their personal 

interests rather than party interests alone, there is no reason to believe that contributions from 

those committees pose any less threat of actual or apparent corruption than contributions from a 

PAC controlled by a legislator. A legislative leader donating money through his or her legislative 

caucus committee can make quid pro quo demands on a candidate to whom he or she donates, 

just as an ordinary PAC can. For example, a legislative leader could contribute to a legislator’s 

campaign committee in exchange for that legislator’s vote on a bill, or in exchange for the 

legislator’s promise to continue to vote for the leader to remain the leader.

Indeed, the State of Illinois considers PACs controlled by legislators to pose a threat of 

corruption when they give to candidates: a PAC formed by an ordinary Illinois legislator is

subject to the same $50,0003contribution limit as any other PAC; there is no exception to the 

usual limits for legislator-controlled PACs. See 10 ILCS 5/9-1.8(d), 5/9-8.5(b). Illinois law also 

assumes that contributions from one legislator’s candidate committee to another’s candidate 

committee pose the same threat of corruption as a PAC’s contributions to a candidate because 

those are limited to $50,000 as well. 10 ILCS 5/9-8.5(b). 

 

2

Indeed, Illinois law imposes very few requirements specific to legislative caucus committees. It 

appears to recognize them only for the purpose of giving them more favorable treatment than 

other committees, not to impose any particular responsibilities on them. 

3

For simplicity, all contribution limits are stated as the amounts stated in the Act, unadjusted for 

inflation.

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3. The Act’s inconsistent treatment of legislative caucus committees and 

PACs is not narrowly tailored to prevent corruption.

Thus, in general, the Act considers contributions from a committee controlled by a 

legislator to another candidate’s committee to be potentially corrupting to the same extent as any 

PAC’s contributions, such that they must be limited to $50,000 per election cycle. But the Act 

inexplicably makes an exception for contributions that a legislator makes through a legislative 

caucus committee, treating them as though they have no potential to corrupt.

The Act’s inconsistent treatment of legislator-to-candidate contributions makes its limits 

so “woefully underinclusive as to render” the notion that is has been narrowly tailored to prevent 

corruption “a challenge to the credulous.” Republican Party of Minn., 536 U.S. at 780. There is 

no reason to believe that a candidate who would be (actually or apparently) corrupted by 

contributions exceeding $50,000 from a legislative leader’s candidate committee and/or PAC 

would not be corrupted to the same extent by contributions exceeding $50,000 from a legislative 

leader’s caucus committee. Regardless of which committee gives the contribution, the recipient 

knows who is responsible for it: the legislative leader. And regardless of which committee gives

the contribution, the legislative leader is in the same position to make a quid pro quo demand 

from the recipient.

Legislative leaders can use the Act to circumvent the limits they would face if they could 

only contribute through their candidate committees and an ordinary PAC. For example, in the 

2012 general election cycle, Senate President John Cullerton’s candidate committee, Citizens for 

John Cullerton, gave $41,000 to the Dan Kotowski for State Senate campaign committee and 

also gave $850,000 to Cullerton’s legislative caucus committee, the Senate Democratic Victory 

Fund, which, in turn, gave $229,339.99 to the Kotowski campaign committee. (Statement of 

Facts (“SOF”) ¶¶ 21.) Thus, Senator Cullerton was able to direct 5.4 times the amount to 

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Kotowski that he could have given through his candidate committee alone and 2.7 times the 

amount that he could have given through his candidate committee and an ordinary PAC. (Id.)

Thus, because the Act’s discriminatory limits are underinclusive and not narrowly 

tailored, they fail First Amendment scrutiny.

B. Legislative caucus committees are different from other party committees.

As discussed above, legislative caucus committees, unlike political party committees, 

inherently give one individual the ability to use campaign contributions to pursue his or her 

personal interests. Legislative caucus committees thus more closely resemble PACs than parties 

because they can be used to pursue a leader’s own interests rather than party interests. 

Accordingly, even if the Act is justified in allowing traditional political party committees to 

make unlimited contributions while others are restricted, as this Court has ruled, it does not 

follow that it is proper for the Act to similarly favor legislative caucus committees simply 

because it has labeled them “party committees.”

Unlike the leaders’ legislative caucus committees, the State and county central 

committees of a political party are not established or controlled by any one person; on the 

contrary, the law requires that those committees consist of a body of many elected members. See 

10 ILCS 5/7-8(a), (d). Accordingly, there is no inherent reason why State and county central

committees would pursue any given individual’s personal interest rather than the party’s broader 

interests.4The Act does allow ward and township committeemen to create their own party 

committees as well, but there is no reason to believe those committeemen, at the bottom of the 

 

4

It is not impossible that a traditional political party committee would be heavily influenced or 

controlled by one person, however, and Plaintiffs have argued that House Speaker Michael 

Madigan uses the Democratic Party of Illinois to advance his own interests. (See Second Am. 

Compl. ¶ 37.) Plaintiffs of course intend to preserve their argument that the Act’s discrimination 

in favor of other party committees also violates the First Amendment along with the other 

dismissed facets of their First Amendment claim. 

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party hierarchy and representing a small geographical area, are in a position to raise funds and

thus to exert influence over legislative candidates on a scale that is comparable to what the 

legislative leaders can do. 

Another difference between legislative caucus committees and other state party 

committees is that a General Assembly candidate who receives a contribution from a legislative 

caucus committee is prohibited from accepting contributions from any other caucus committee 

during the same cycle. 10 ILCS 5/9-8.5(b). The Act places no comparable restriction on a 

candidate’s ability to receive contributions from multiple traditional political party committees

(such as different state, county, and ward committees). The exclusivity provision serves no 

apparent purpose except to “lock in” a candidate to depend upon the first caucus committee that 

gives him or her money and to make it difficult for new legislative caucus committees to arise 

and compete. If, in the middle of an election cycle, a candidate who has taken money from a 

leader’s caucus committee decides that he or she no longer wants to support the leader’s agenda, 

the candidate cannot turn to another legislative caucus committee for support. The candidate 

could of course seek support from other types of committees, but the Act limits how much other 

committees (except political parties) can give them. Accordingly, the Act gives legislative 

leaders the ability to use caucus committees to make legislators dependent on them for support, 

which in turn facilitates the making of quid pro quo demands on legislators, requiring that they 

obey the leader to avoid losing financial support not only from the leader’s committee but from 

any legislative caucus committee. Thus, legislative caucus committees have a tool for engaging 

in corruption that traditional political parties lack.

Legislative caucus committees also differ from Congressional campaign committees in 

the federal system. No federal law places any Congressional campaign committee under the 

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control of one person, let alone under the control of the parties’ leaders within the two Houses of 

Congress. Indeed, none of the four major Congressional campaign committees is currently 

chaired by the Speaker of the U.S. House of Representatives, the House Majority or Minority 

Leader, the Senate President, the President Pro Tempore of the Senate, or the Senate Majority or 

Minority Leader.5These committees are not the organizations of a particular person, as Illinois 

legislative leaders’ caucus committees are by definition under the Act. Accordingly, there is no 

reason to expect Congressional campaign committees to pursue the personal interests of any 

particular legislator as there is with Illinois legislative caucus committees. 

Thus, legislative caucus committees are not like actual political party committees and 

considerations that might warrant allowing the Act to treat other party committees more 

favorably than PACs and other non-party contributors do not warrant treating legislative caucus 

committees more favorably than those contributors. Again, legislative caucus committees more 

closely resemble PACs because they can be used to pursue a leader’s own interests rather than 

party interests, and their contributions give rise to at least as much actual or apparent corruption. 

The Act’s failure to account for these differences shows that it is not narrowly tailored to prevent 

corruption. 

C. It is not necessary or ordinary for states to give legislative caucus committees 

such disproportionate favorable treatment.

Other states’ election laws demonstrate that, while it is not uncommon for legislative 

leaders or their parties to have political committees focused on electing members of their 

chamber, it is not necessary or ordinary for states to treat legislative caucus committees the same 

 

5

See Democratic Congressional Campaign Committee, http://dccc.org/about/; Democratic 

Senatorial Campaign Committee, http://www.dscc.org/; National Republican Congressional 

Committee, http://nrcc.org/about/; National Republican Senatorial Committee, 

http://www.nrsc.org/About/.

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as political parties or to treat them more favorably than PACs, let alone to give them the 

disproportionate favorable treatment that Illinois does. 

In at least 26 states, the law subjects legislative caucus committees and PACs to the same 

contribution limits (or lack thereof). Ala. Code § 17-5-2; Alaska Stat. §§ 15.13.070, 15.80.010; 

Ark. Code Ann. § 7-6-203; Cal. Gov’t Code §§ 85301, 85205; Fla. Stat. § 106.08; Ga. Code 

Ann. § 21-5-41; Haw. Rev. Stat. §§ 11-302, 11-357; Idaho Code Ann. § 67-6610A; Ind. Code § 

3-9-2; Iowa Code Ann. § 68A; Me. Rev. Stat. Ann. tit. 21-A, § 1015; Miss. Code Ann. §§ 23-15-

1, 97-13-15; Mo. Stat. Ann. § 130.011 et seq.; Neb. Rev. Stat. § 32; Nev. Const. Art. II § 10; 

Nev. Rev. Stat. § 294A.100; N.D. Cent. Code § 16.1-08.1-03.5 (restricting only contributions by 

corporations); N.H. Rev. Stat. Ann. § 664:4; N.M. Stat. § 1-19-34.7; N.C. Gen. Stat. Ann. § 163-

278.13; Or. Rev. Stat. § 260; 25 Pa. Cons. Stat. Ann. § 3253; S.C. Code Ann. § 8-13-1314; S.D. 

Codified Laws § 12-27-8; Tex. Elec. Code Ann. § 253; Va. Code Ann. § 24.2-945 et seq.; W. 

Va. Code § 3-8-12. In most of the remaining states, legislative caucus committees are not given 

the disproportionately favorable treatment the Act gives them in Illinois. For example, in

Connecticut, Kentucky, Minnesota, North Dakota, Ohio, Washington, and Wisconsin, legislative 

caucus committees have higher contribution limits than PACs, but, unlike Illinois legislative 

caucus committees, they are never unlimited in the amounts they can contribute. Conn. Gen. 

Stat. § 9-611 et seq.; Ky. Rev. Stat. Ann. § 121; Minn. Stat. §§ 10A.01, 10A.27; Ohio Rev. 

Code Ann. § 3517.102; Wash. Rev. Code § 42.17A.405; Wash. Admin. Code § 390-05-400; 

Wis. Stat. Ann. § 11.26. In Tennessee, legislative caucus committees are further constrained 

because contributions to all committees of a political party (such as the Republican Party), 

including contributions to the legislative caucus committee, count toward the party’s aggregate 

limit ($40,000 in a state senate race or $20,000 in a state house race). Tenn. Code Ann. § 2-10-

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302, §2-10-306. In Montana, contributions to any political committee controlled by a legislative 

leader count toward the leader’s personal limits on the amounts he can receive from others, 

preventing the sort of double-fundraising and double-giving that Illinois legislators can do 

through their candidate and legislative caucus committees. Mont. Code Ann. §§ 13-1-101, 13-37-

216. In Kansas, legislative caucus committees are unlimited in their spending in a general 

election but must conform to the same limits as all other contributors in a primary election. Kan. 

Stat. Ann. §§ 25-4143, 25-4153. In Michigan, legislative caucus committees are unlimited except 

in contested primaries, where they are not allowed to make contributions at all – presumably 

because of the heightened risk of corruption, discussed above and in Plaintiffs’ expert’s 

testimony discussed below, from legislative leaders threatening to withhold funds from primary 

candidates who do not obey the leader. Mich. Comp. Laws § 169.252. The only state Plaintiffs 

have found that has contribution limits that discriminate in legislative caucus committees’ favor 

as much as Illinois’ limits do is New Jersey, which does not limit legislative caucus committee 

contributions in either primary or general elections. N.J. Stat. Ann. § 19:44A-11.3 (West); N.J. 

Admin. Code § 19:25-1.1.

Thus, the Act’s treatment of legislative caucus committees is not necessary and is far 

from normal, casting further doubt on the State’s claim that its limits are narrowly tailored to 

limit corruption. 

D. The report of Plaintiffs’ expert, Marcus Osborn, further shows that 

legislative caucus committees are similar to PACs and that the Act’s 

discriminatory limits are not narrowly tailored to prevent corruption.

The report of Plaintiffs’ expert witness, Dr. Marcus Osborn, further shows that legislative 

caucus committees are similar to PACs and create similar opportunities for corruption and that 

the Act’s discrimination between them is therefore unjustified.

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As Dr. Osborn’s report explains, political parties and PACs generally pursue different 

election strategies. Political parties seek to maximize the number of party members elected to 

office, while PACs pursue “access strategies,” which are “designed to maximize the influence of 

[a PAC’s] specific interest group.” (SOF ¶ 37.) Parties tend to be a counterbalance to the 

influence of interest groups, which make contributions (through PACs) designed to maximize 

their own influence. (SOF ¶ 36.) 

Leadership PACs in particular use contribution strategies that serve two goals: (1) the 

“Type I” goal of expanding the size of the party’s caucus in the legislature and (2) the “Type II” 

goal of increasing the leader’s influence over existing legislators or enhancing support for his or 

her own election as a legislative leader. (SOF ¶ 43.) “Type II” contributions are designed 

primarily to benefit the leader personally or policies the leader favors and are therefore similar to 

private-sector PACs’ contributions attempting to gain influence through a contribution strategy. 

(SOF ¶ 44.)

The legislative caucus committees created by the Act “operate more like Leadership 

PACs than [like] political party committees because they are designed not only to support the 

needs of the Caucus” but also to “provide individualized benefits to the Speaker of the House 

and Senate President.” (SOF ¶ 40.) Academic literature indicates that by directing Leadership 

PAC funds to legislators, legislative leaders can “curry favor with the recipient legislators which 

will increase [the recipients’] willingness to support the contributors’ efforts to lead the Caucus” 

and thus “solidify [the leader’s] base.” (SOF ¶¶ 45-46.) 

Dr. Osborn notes that Leadership PACs are – as one would logically expect – likely to 

focus on caucus expansion when control over the legislature is in doubt. (SOF ¶ 48.) After all, if 

the legislative leader’s party loses power, then he or she loses power. Control over the legislature 

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is not in doubt in Illinois, however, where the Democrats have “overwhelming” majorities in 

both the House and Senate and the likelihood that the Democrats will lose their majority status 

therefore appears to be slim. (SOF ¶ 49.) Accordingly, it is more likely that legislative caucus 

committees would pursue “Type II” strategies.

Reviewing the largest contributions made by legislative caucus committees in the 2012 

election cycle, Dr. Osborn observed that the contributions of at least the Democratic Majority 

were “not consistent with an exclusive party maximization strategy” – that is, not consistent with 

what one would expect to see with a committee solely concerned with expanding the party 

caucus rather than serving the legislative leader’s own interests. (SOF ¶¶ 53-58.) Democratic 

Majority’s contributions included “aggressive primary participation” including contributions of 

over $50,000 to House candidate Sue Scherer, who won her primary by a margin of just 1.18%, 

and Maria Berrios, who won her primary by a margin of 1.58%. (SOF ¶ 60.) Those slim margins 

of victory suggest that Democratic Majority’s contributions “impacted the outcome of these 

close Primary elections.” (SOF ¶ 61.) Following the primaries, Scherer and Berrios did not “face 

tough elections,” as both won their general election races by more than 20 percent, which 

demonstrates that the seats were “safe Democratic seats as the real competition was in the 

primary.” (SOF ¶ 62.) Accordingly, the pattern of primary election contributions “appeared to be 

designed to shape the Democrat[ic] Caucus,” not to maximize the number of Democrats elected.

(SOF ¶ 63.)

Dr. Osborn also observed that legislative caucus committees controlled by legislative 

leaders “created an elevated risk for corruption” because the legislative leaders “have both 

policymaking authority and the ability to influence elections.” (SOF ¶ 68.) Unlike traditional 

political parties, legislative caucus committees “tie policymaking and fundraising together in 

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close proximity,” which “make[s] them more susceptible to interest group influence and 

capture.” (SOF ¶ 69.) That is, special interests know that legislative leaders can exercise a large 

degree of control over the legislative process and are in a position to exert greater influence 

because of their ability to contribute (or threaten to not contribute) funds to other legislators in 

their caucus. As a result, one would expect legislative caucus committees to attract contributions 

from special interests rather than from a broad base of supporters as one would expect to find 

with a traditional political party committee. (SOF ¶ 70.) Reviewing the list of contributions to the 

majority party’s legislative caucus committees, that is exactly what Dr. Osborn found: the caucus 

committees’ contributions “come from a concentrated group of special interests with heavy 

contributions generated by PACs associated with organized labor and business trade 

associations.” (SOF ¶ 70.) 

Dr. Osborn also concluded that the Act creates the opportunity, so far unrealized, for 

corruption through the creation of legislative caucus committees “organized around standing 

committees,” which could “solicit funds from impacted interest groups that have a particular 

interest in supporting member of [a] specific legislative committee.” (SOF ¶ 71.) A legislative 

caucus committee organized around one of the “key legislative standing committees” could be 

“utilized to solicit funds from the interests lobbying each committee,” which could “then be used 

to fund the campaigns of other Caucus members who support the legislation being championed 

by the committee-oriented Legislative Caucus Committee.” (SOF ¶ 72.) In this way, the caucus 

committees would further “institutionally tie[] legislative decision making with fundraising.” 

(SOF ¶ 72.) “The ability of legislators to create Legislative Caucus Committees appears to be 

specifically designed to enhance these relationships [between committees and the interest groups 

they affect] by providing a systematic means for the legislative committee members from the 

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very stakeholders most impacted by their policy decisions.” (SOF ¶ 73.) This is not inconsistent 

with the system being designed to benefit legislative leaders: it “can expand influence vertically 

within the Caucus from the Speaker of the House and the Senate President down to their team of 

appointed legislative committee chairs,” creating “additional fundraising opportunities through 

additional Caucus Committees to solicit funds from impacted interest groups that have a 

particular interest in supporting members of a specific legislative committee.” (SOF ¶ 74.) 

Dr. Osborn notes that, “in designing this system, the Legislature failed to enact even the 

most basic protections against tying contributions to the policymaking by authorizing 

contributions to these committees even during legislative deliberations” – that is, it did not

prohibit contributions during the legislative session. (SOF ¶ 75.) It restricted fundraising in 

Sangamon County, where the state capital is, during the legislative session, but not elsewhere, 

providing “scant protection against the potential for influence peddling” because legislators 

could simply raise funds outside of Sangamon County. (SOF ¶ 75.) And, indeed, Dr. Osborn 

noted special interests making large contributions to legislative caucus committees in close 

proximity to legislative consideration of issues importance to them, with SEIU Healthcare II 

PAC contributing $47,000 and SEIU Illinois Council PAC contributing $50,000 to the 

Democratic Majority legislative caucus committee on August 17, 2012, corresponding with the 

convening of a special legislative session on pension reform. (SOF ¶ 76.) 

In sum, Dr. Osborn’s testimony confirms what is already evident from the face of the 

statute: that legislative caucus committees do not necessarily act like political party committees 

but may instead act like PACs serving legislative leaders’ personal interests, with legislative 

caucus committees’ additional characteristics creating a heightened potential for, or appearance 

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of, corruption. Accordingly, Dr. Osborn’s testimony further demonstrates that the Act’s limits 

are underinclusive and not narrowly tailored to prevent actual or apparent corruption. 

CONCLUSION

Illinois’ scheme of campaign contribution limits is not narrowly tailored to prevent 

corruption or the appearance of corruption. 

Dated: December 12, 2014

Respectfully submitted,

/s/ Jacob H. Huebert

Jacob H. Huebert (#6305339)

Jeffrey M. Schwab (#6290710)

Attorneys for Plaintiffs 

LIBERTY JUSTICE CENTER

190 S. LaSalle Street, Suite 1500

Chicago, Illinois 60603

(312) 263-7668

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CERTIFICATE OF SERVICE

I, Jacob H. Huebert, an attorney, hereby certify that on December 12, 2014, I served 

Plaintiffs’ Memorandum in Support of Their Motion for Summary Judgment on Defendants’ 

counsel by filing it through the Court’s electronic case filing system. 

/s/ Jacob H. Huebert

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