Libertarian political candidates won a free speech victory
in federal court as a Chicago judge declared unconstitutional an Illinois
campaign law barring medical marijuana businesses from making campaign
In a memorandum opinion and order issued March 24, U.S.
District Judge John Z. Lee granted summary judgment to Claire Ball and Scott
Schluter, candidates from the Libertarian Party who sought office in 2016, and
had challenged the state law. Ball was a candidate for Illinois Comptroller and
Schluter ran in the 117th state House District.
Named defendants in the action included Illinois Attorney
General Lisa Madigan, Illinois Board of Elections Chairman Charles W. Schilz,
Vice Chairman Ernest L. Gowen and Board members Betty J. Coffrin, Casandra B.
Watson, William J. Cadigan, Andrew K. Carruthers, William M. McGuffage and John
The 2013 law in question barred medical marijuana farms and
dispensaries from making campaign donations to political committees established
to promote candidates. It also prevented candidates and committees from receiving
such donations. Statutory fines were capped at $10,000.
The General Assembly
amended the election code to include this clause on Aug. 1, 2013, the same day
it enacted the Compassionate Use of Medical Cannabis Pilot Program Act. That
law took effect Jan. 1, 2014; its sunset date has been extended to July 1,
2020. The election code provision is not scheduled for repeal.
In his opinion, Lee referenced U.S. Supreme Court
clarifications on campaign spending since its 1976 opinion in Buckley v. Valeo, noting it “has
distinguished restrictions on independent expenditures for political speech
(i.e., expenditures made independently of a candidate’s campaign) from
restrictions on campaign contributions, reasoning that the former place a
relatively heavier burden on First Amendments rights.”
The matter of medical marijuana interests making donations falls
under campaign contributions case law as opposed to the more strict independent
expenditures arena, Lee wrote, further explaining the government is obligated
to prove its laws promote a “sufficiently important government interest” and do
not interfere with associational freedoms.
“By singling out medical cannabis organizations,” Lee wrote,
the Illinois law “appears to reflect precisely such a content or viewpoint
preference. Although Buckley and its
progeny permit the government to regulate campaign contributions to some
extent, surely the First Amendment does not give the government free rein to
selectively impose contribution restrictions in a manner that discriminates
based on content or viewpoint.”
The state defendants argued the law was enacted to prevent
quid pro quo corruption, or the appearance of such, arguing “the risk of
corruption in this industry is significant because medical cannabis cultivation
centers and dispensaries compete for a limited number of annually issued
registration permits.” But rather than cite demonstrated instances related to
medical marijuana, Lee wrote, “they rely solely upon Illinois’s general history
of political corruption scandals.”
Even though a substantiated corruption risk might establish
the government interested needed to justify the ban, Lee said Ball and Schluter
adequately demonstrated the law’s shortcomings because the law does not
demonstrate how the ban is “closely drawn” to the specific government interest
such that it does not abridge associational freedoms.
Lee wrote the law might have withstood challenge had it
imposed a spending limit rather than a wholesale ban, noting the state offered
no support for its claim marijuana interests pose a greater threat than other
donor classes whose profitability is connected to state regulations.
Further, the state could have allowed marijuana businesses
to fall under a 2009 state law on political contribution limits of $5,000 from
individuals or $10,000 from corporations, unions or other groups, the judge
“Defendants have not explained why these broadly applicable
contribution limits are insufficient to prevent the risk of corruption in the
medical cannabis industry, much less why an outright ban on contributions from
industry members is appropriate,” Lee said.
The Libertarian candidates were represented in the case by
attorney Benjamin Barr, of Gaithersburg, Md.; the Liberty Justice Center, of
Chicago; and the Pillaw Of Law Institute, of Washington, D.C.
The state defendants were represented by the Illinois
Attorney General’s office.