Federal appeals judges: 'Politics in politics' did not violate rights of GOP state senator who challenged Rauner

By Scott Holland | Nov 28, 2018

McCann   Youtube screenshot

The U.S. Seventh Circuit Court of Appeals determined Illinois Senate Republican leaders didn’t violate a caucus member’s rights by stripping him of duties after he mounted a third-party gubernatorial challenge.

“This case takes us deep into the internal workings of the Illinois State Senate” said Chief Judge Diane Wood, who wrote the opinion issued Nov. 26. 

Judges Diane Sykes and Amy Barrett concurred in the decision.

The panel explained how State Sen. Sam McCann, R-Plainview, sued Senate Minority Leader Bill Brady, R-Bloomington, after McCann announced his candidacy for governor as a member of the Conservative Party, seen as an assault on GOP incumbent Gov. Bruce Rauner.

After McCann announced his plans to run, but before he filed nomination papers or formally left the Republican party, he said Brady expelled him from the Senate Republican Caucus, and cut him off from “taxpayer-funded legislative services — including staff, technology and other resources — that are provided to all Senators to support their ability to represent their constituents,” according to his campaign website.

Wood explained Illinois General Assembly rules include a budget allocation for legislative leadership and staff. In 2017, this was about $20 million, split equally among majority and minority leaders in both chambers. Each senator is allowed to spend $73,000 per year on assistance and office needs. McCann said being cut off from that money, as well as “staff analysis of bills, the coordination and movement of active bills, drafting assistance for a senator’s own bills, detailed status reports and schedules, and help with communications, photography, in-district events, and other constituent services,” violated his First and 14th amendment rights.

In filing the complaint, along with a constituent, Bruce McDaniel, McCann asked for a temporary restraining order restoring his access to those party resources. U.S. District Judge Andrea Wood denied that request and ultimately dismissed the complaint with prejudice, reasoning Brady was protected by the concept of legislative immunity.

According to the Seventh Circuit, although legislative immunity is a concept of the U.S. Constitution, it is not limited to federal lawmakers. More important is whether Brady’s actions in this instance are “legislative in nature.”

“Minority staff analyses of bills are a valuable input into the legislative process,” Judge Wood wrote. “As Minority Leader, Sen. Brady was attempting to use his party’s resources as effectively as possible in furthering the party’s legislative agenda. Setting legislative priorities for the minority party, including when to schedule bills, how to ensure that senators are ready to vote on them, is also quintessentially legislative activity. Drafting assistance is likewise legislative.”

In affirming the judgment, the panel ultimately considered Brady’s decision a choice of how to allocate staff resources available to Republican senators. The Senate Rule defines the minority caucus as anyone not in the majority, which is based on party alignment and votes for Senate president.

“Political party, in other words, is an essential defining characteristic — and it is worth noting that the question whether someone is 'really' a Republican, a Democrat, or something else, is not one of constitutional dimension,” Wood wrote. “Allowing politics to play a role in politics does not violate the First Amendment.”

Wood also explained it was reasonable for GOP leaders to conclude that since the rules “were created against the backdrop of a two-party system” they wouldn’t be forced to accept a third-party member, as those Senators still would get “the basic staff assistance and public resources of the General Assembly. …

“Imagining what would happen if we were to adopt McCann’s position demonstrates why legislative immunity must apply here,” Wood continued. “McCann would have the federal courts micro-manage exactly which resources, and in what amount, the legislative leaders of the two major political parties dole out to their members. This is emphatically not our job.”

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Illinois Governor Bruce Rauner Illinois Republican Party Illinois Senate Minority Leader Bill Brady Illinois State Senate U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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