This discriminatory system was challenged as a violation of both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. If a state is going to let one group give an unlimited amount to candidates while prohibiting other groups, it should have to justify why such discriminatory treatment is warranted. Yet both the trial court and the Seventh Circuit rejected the challenge, however, and the case is now on petition to the Supreme Court. Cato has filed an amicus brief arguing that the Court should take the case to rectify the differential treatment of contributions and expenditures.
A contribution is given to a candidate by an individual, committee, or organization. An expenditure is money spent independently to advocate for or against a candidate or a ballot issue. The Supreme Court has repeatedly recognized that campaign contributions and expenditures are political speech protected by the First Amendment. The Court has reasoned that spending money—whether through contributions or expenditures—facilitates expression and gives candidates the necessary funding to disseminate messages and advocate for policies.
But, despite acknowledging that both contribution limits and expenditure limits impinge on free speech, the Court has generally allowed more regulation of contribution limits than expenditure limits. If Illinois had a law that said unions could spend more in expenditures than corporations, the courts would likely strike it down as illegitimately discriminatory. Yet, a law that allows some groups to make unlimited contributions while prohibiting others, as the law here does, would receive less scrutiny. That doesn’t make sense.
We further argue that campaign finance regulations like Illinois’s misdiagnose the problem and offer a poor solution. While Illinois treats money as a proxy for corruption, the Court has established that anti-corruption regulations must instead target quid pro quo corruption (money exchanged for political favors), a relatively specific—and serious—harm. The mere act of contributing to a campaign does not mean that the donor is looking for political favors. Further, under Illinois’s scheme, individuals have a spending cap, while entrenched legislative committees can spend without restriction. This severely limits the influence of constituents and lesser-known candidates, instead benefitting career politicians with established connections. Truly, Illinois’s law seems more like a recipe for corruption than a solution.
Finally, Illinois’s contribution limit stands entirely on an erroneous and largely semantic distinction between expenditures and contributions in Buckley v. Valeo (1976). In Buckley itself, Chief Justice Warren Burger referred to the distinction as the Court playing “word games.” Over the years, this distinction has been subject to criticism from Supreme Court justices like Clarence Thomas, as well as numerous academics and lawyers.
The Court has a unique opportunity to strike down both an unconstitutional law and the erroneous decision that props it up. It should establish that restrictions on contributions should be evaluated like restrictions on other forms of political speech—by a strict scrutiny standard. The mere presence of money in politics is not the same as corruption, and the Court should reject the Illinois law that treats it as such.
