Dan Proft | Youtube screenshot
CHICAGO -- Illinois' campaign finance law may create an unlevel political spending playing field, giving one kind of political organization a built-in advantage. But a federal appeals panel appeared to harbor doubts over whether that makes the law unconstitutional.
A three-judge panel of the U.S. Seventh Circuit Court of Appeals heard arguments Sept. 6 in the case brought by Dan Proft, founder of the political advocacy group Liberty Principles PAC against the state of Illinois, seeking to strike down an Illinois election law that imposes campaign donation limits on so-called independent expenditure committees, while not placing similar restrictions on other campaign finance vehicles.
Proft took legal action in 2018 against the state over the law, which prohibits independent expenditure committees from contributing funds directly to political candidates. Proft argued the law violates constitutional rights to free speech and due process. Elimination of the law would “level the playing field” in a system Proft alleged is canted.
Independent expenditure committees can make “independent expenditures” in any amount in support of or against a candidate. The committees can spend money on advocacy. However, unlike a political action committee, IECs cannot coordinate with a candidate or campaign.
The amount of money a PAC can contribute to a candidate is limited by law. But the law allows that, once certain spending thresholds are breached - $250,000 for statewide office or $100,000 for other offices - donations from PACs can become unlimited.
Proft argued if a PAC can coordinate with candidates while making unlimited contributions to their campaigns once the thresholds are reached, IECs should be able to do the same.
In October 2018, U.S. District Judge Virginia Kendall dismissed Proft's case, finding limits on IECs are constitutional and a “closely drawn means of preventing corruption or its appearance.”
Proft appealed. Oral arguments were heard by Seventh Circuit Judges Frank Easterbrook, Michael Kanne and Michael Brennan.
Easterbrook asked Proft’s attorney, Jeffrey M. Schwab: “When the contribution cap is lifted, does the state then allow anonymous contributions?” Schwab said he did not know, prompting Easterbrook to observe: “Maybe this case turns on the answer to that question.”
Easterbrook said the U.S. Supreme Court has ruled donor identities can be public, but Proft wants them masked.
“You want to allow unlimited anonymous contributions," Easterbrook said. "I think you have a serious problem.”
Easterbrook additionally told Schwab: “This is a question of law. Illinois either does or does not require contributors to be identified. We can look this up. I’m surprised that you haven’t.”
Schwab, of Liberty Justice Center in Chicago, contended the law restricts the free speech rights of IECs, by prohibiting them from making the same contributions allowed by other types of donors once contribution limits are lifted. Schwab further argued that letting IECs coordinate with candidates “poses no more threat of corruption than allowing any other group to do the same.”
However, Easterbrook determined that making independent expenditures on behalf of a candidate, then contributing to other candidates, is a “very hard position to sell.”
Judge Kendall had characterized Proft's argument as Proft wanting to “have his cake and eat it too,” by enjoying the benefits of an independent expenditure committee while also enjoying the benefits of a PAC.
According to Easterbrook, the nation’s high court has said IECs cannot coordinate with candidates. But Easterbrook said Proft is essentially arguing an IEC “can coordinate with some candidates and still be independent.’”
Frank H. Bieszczat, of the Illinois Attorney General’s Office, argued for the state, saying expenditure committees were “fundamentally different from individuals, PACs, and political parties because they could at all times accept unlimited contributions from any source.”
In Bieszczat’s view, the Supreme Court has never held it is relevant whether contribution limits apply equally to all donors or vary by type of contributor.
“The contribution ban prevents IECs from being used as a tool to circumvent the usual candidate contribution limits and protects the limits on contributions to PACs and political parties as well," Bieszczat argued. "The ban prevents circumvention of the base candidate contribution limits by ensuring that IECs do not lift those limits through their own spending.”
A decision from the court of appeals is pending.